In an unsigned (per curiam) order over 3 dissents, the Supreme Court has bounced a case back to a lower court that challenged a Trump Administration plan to exclude certain non-citizens from the census count used to apportion seats among the states. The Administration planned to do so despite unambiguous constitutional language requiring that all “persons” in the U.S. be counted for these purposes.
From the majority opinion explaining the lack of standing:
At present, this case is riddled with contingencies and speculation that impede judicial review. The President, to be sure, has made clear his desire to exclude aliens without lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary should gather information “to the extent practicable” and that aliens should be excluded “to the extent feasible.” 85 Fed. Reg. 44680. Any prediction how the Executive Branch might eventually implement this general statement of policy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).
The Court also found a ripeness problem:
The remedy crafted by the District Court underscores the contingent nature of the plaintiffs’ injuries. Its injunction prohibits the Secretary from informing the President in his §141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” Summers v. Earth Island Institute, 555 U. S. 488, 494 (2009). Letting the Executive Branch’s decisionmaking process run its course not only brings “more manageable proportions” to the scope of the parties’ dispute, Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990), but also “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives,” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). And in the meantime the plaintiffs suffer no concrete harm from the challenged policy itself, which does not require them “to do anything or to refrain from doing anything.” Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998).
This ruling will likely render the case moot, as the Trump administration likely misses the deadline for submitting alternative apportionment numbers before Trump’s term ends. If it doesn’t, the case will be back in short order before the Court arguing against the numbers. The Court majority expressed no view on the merits, but there could well be at least 2 Justices who agree with the substantive position of the dissenters that what the Administration plans to do is unconstitutional.
The three liberal Justices dissented. They would have reached the merits and not allowed any kind of apportionment that excluded persons in the U.S., including certain non-citizens. From the dissent:
To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its mandate to exclude aliens without lawful status and reduce the number of Representatives to which certain States are entitled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government speculates that it might not fully succeed.
[This post has been updated.]