Supreme Court Rules Census Suit Not Ripe for Judicial Review

The U.S. Supreme Court recently dismissed a lawsuit challenging the Trump Administration’s policy of excluding undocumented immigrants from the apportionment foundation when conducting the U.S. census. By a vote of 6-3, most concluded that the legal struggle in Trump v. New York, 592 U.S. ____ (2020), Wasn’t ripe for judicial review.  

Legal Counsel of the US Census

The Constitution further mandates that an”actual Enumeration” be conducted”each… ten decades, in such Manner as [Congress] shall by Law direct.” 

Under 2 U.S.C. § 2a(a), the President is then required to carry Congress”a statement showing the entire number of people in each State… as determined under the… decennial census of the population, and the amount of Representatives to which each State would qualify” using a mathematical formula”called the method of equal proportions.” 

Facts of the Case

Back in July 2020, President Donald Trump issued a memorandum to the Secretary of Commerce respecting the apportionment following the 2020 census. The memorandum announced a policy of excluding”from the apportionment foundation aliens that are not in a lawful immigration status.”

To facilitate implementation”to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in preparing his §141(b) report,”to provide information per- mitting the Presidentto the degree practicableto practice the President’s discretion to execute the policy.” The President directed the Secretary to contain these info as well as a tabulation of population based on the criteria created by the Census Bureau for restricting each State’s residents.

This case arises from among many challenges to the memorandum brought by various States, local governments, associations, and people. A three-judge District Court held that the plaintiffs had standing to continue in federal court since the memorandum was chilling aliens and their families from responding to the census, thus degrading the quality of census data used to allocate federal funding and forcing any plaintiffs to divert funds to fight the chilling effect. The District Court concluded that the memorandum violates §141(b) by ordering the Secretary to produce 2 types of numbers–a valid tabulation derived from the census, and an invalid tabulation constituting aliens based on administrative records outside the census. The District Court further ruled that the exclusion of aliens on the basis of legal status will contravene the requirement for §2a(a) that the President nation the”lot of persons in each State” for purposes of apportionment. The District Court announced the memorandum criminal and enjoined the Secretary from containing the data needed to execute the memorandum within his §141(b) report on the President. The Government appealed.

Supreme Court’s Decision

At a per curium decision, the Supreme Court determined that it lacked jurisdiction to decide the dispute and also remanded the case back to district court with instructions to dismiss the case. As stated by the Court, the case is”teeming with contingencies and speculation which impede judicial review.”

“The President, to be certain, has made clear his desire to exclude aliens with no lawful status from the apportionment base. But the President characterized his directive by providing that the Secretary should collect information’to the degree ‘ and that aliens must be excluded’into the extent feasible,”’ nearly all wrote.   “Any forecast the way the Executive Branch may eventually execute this general statement of policy is’no longer than conjecture’ at the moment.”

Nearly all further highlighted that the Trump Administration”can’t feasibly implement the memorandum” by excluding all illegal immigrants, noting that”the policy may not prove feasible to execute in any manner at all, let alone in a way substantially likely to damage any of these plaintiffs here.” It added:”The count this is full; the present dispute involves the apportionment process, which remains at a preliminary stage. The Government’s final action will reveal both legal and practical constraints, making any prediction about future harm just that–a forecast.”

Given that it was too premature for the Court to decide the dispute, most did not address the merits of the case. “At the conclusion of the day, the status and ripeness queries both lead to the conclusion that judicial resolution of the dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of these inherent and related statutory claims presented,” the Court wrote.


Justice Stephen Breyer wrote a dissenting view, which has been joined by Justices Sonia Sotomayor and Elena Kagan. “The Government has announced a policy to exclude aliens without lawful status from the apportionment foundation for the decennial census. The Government doesn’t deny that, if completed, the policy will damage the plaintiffs. Nor does it deny that it will execute that policy imminently (to the extent it can do so),” Justice Breyer wrote. “Under a straightforward application of the precedents, the plaintiffs have standing to sue.”

The dissenters further claimed that the plaintiffs also needs to prevail on the merits. “The simple meaning of the statutes, decades of historic practice, along with uniform interpretations from all three branches of Government attest that aliens without lawful status cannot be excluded from the decennial census exclusively due to the status. The Government’s effort to remove them in the apportionment foundation is criminal, and I feel this Court should say so,” Justice Breyer wrote.
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