Judge Wilkins, joined by Chief Judge Srinivasian and Judge Childs, in Citizens for Constitutional Integrity v. Census Bureau:

Section 2 of the Fourteenth Amendment, which specifies that seats in the House of Representatives “shall be apportioned among the several States according to their respective numbers,” also provides that the “basis of representation” for the apportionment of representatives to any state “shall be reduced” proportionately “when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged.” U.S. CONST. amend. XIV, § 2.1 This constitutional provision, dubbed the Reduction Clause or the Penalty Clause, has been historically neglected save for a handful of efforts by members of Congress and intrepid plaintiffs to enforce it. See George David Zuckerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amendment, 30 FORDHAM L. REV. 93, 107–24 (1961); see also Lampkin v. Connor, 360 F.2d 505 (D.C. Cir. 1966).

Enter Appellant Citizens for Constitutional Integrity (“Citizens”), a non-profit organization with members in New York, Pennsylvania, and Virginia. Seeking to enforce the Reduction Clause, Citizens sued the Census Bureau, the Department of Commerce, the Secretary of Commerce (the “Secretary”), in her official capacity, and the Census Bureau Director, in his official capacity, (hereinafter referred to together as the “Bureau”) over their collective failure to proportionately reduce the basis of representation for each of the 50 states when tabulating 2020 Census data in order to calculate the apportionment of representatives as part of the Bureau’s statutorily mandated report to the President. In its complaint, Citizens asserted an Administrative Procedure Act (“APA”) claim and a mandamus claim, alleging that the Bureau, by ignoring the Reduction Clause in the apportionment calculations that it turned over to the President, flouted its constitutional and attendant statutory responsibilities; unconstitutionally deprived New York, Pennsylvania, and Virginia of congressional representation; and impermissibly diluted the power of Citizens’s members in those states.

A three-judge panel in the District Court dismissed Citizens’s challenge for lack of standing. Citizens now appeals that ruling. Because Citizens is unable to establish that its vote dilution injury is traceable to the alleged deficiencies in the Secretary’s report, it is necessarily unable to establish Article III standing with respect to that injury. Accordingly, we affirm.

Judge Wilkins also filed a separate concurring opinion:

In this case, the Bureau argued that Citizens’s claims are not redressable because the Bureau “neither [has] the authority nor the tools” to implement the Reduction Clause and because “it is far from clear that [the Secretary] would have authority to withdraw her [R]eport on the 2020 census at this point.” Appellee’s Br. 20–21; see Oral Argument Tr. 21–22. At argument, the Bureau was asked how, under its theory, any plaintiff would have standing to enforce the Reduction Clause. Id. at 23–24. “I’m not sure,” replied counsel for the Bureau, “[i]t’s not clear because of the way that the [R]eduction [C]lause and the statutory scheme exist . . . there is no obvious . . . answer to that question.” Id. at 23. When pressed further about which government actor is responsible for enforcing the Reduction Clause, if not the Bureau, the Bureau took no position, abdicating any responsibility for implementing the provision without some other congressional action. Id. at 26–28. The Bureau’s response, put colloquially, was, “Not it.”

This is an unacceptable position from an agency of the Executive Branch that is tasked with the responsibility, and empowered with the authority, to “take [c]are that the [l]aws be faithfully executed.” U.S. CONST. art. II, § 3. The Reduction Clause, which has been codified in statute since 1872, is just as important as any other constitutional provision, having been passed following intense deliberations about how to reunite a nation fractured by war and facing political differences that threatened to leave four million formerly enslaved Black Americans with “no political existence” while Southerners gained a profound increase in political power. W.E.B. DU BOIS, BLACK RECONSTRUCTION 290 (Free Press 1998) (1935); see id. at 295, 330. Equal treatment must be afforded not just to people but to the laws in place to protect their rights; it is high time, after 150 years, that the Reduction Clause receive the respect it deserves.