Supreme Court Dismisses Lawsuit Challenging Trump’s Plan to Exclude Undocumented Immigrants from Congressional Apportionment Counts—But the Case Could Soon Come Back

 

This morning, the Supreme dismissed a lawsuit filed by various state and local governments challenging the legality of Donald Trump’s plan to exclude undocumented migrants from population counts that determine the apportionment of seats in the House of Representatives. I wrote about the issues at stake in the case here and here, and in an amicus brief supporting the plaintiffs I submitted along with University of Texas law professor Sanford Levinson.

The Court’s ruling in Trump v. New York does not actually address the merits of the lawsuit. Instead, it dismissed the case based on the procedural doctrines of standing ripeness, because at this point it is not clear how many migrants will actually be excluded from the count based on the administration’s policy, and whether it will be enough to affect apportionment. This result is not surprising. The oral argument indicated that many of the justices preferred to avoid addressing the merits.

The per curiam opinion joined by the six conservative justices spells out their reasoning:

Two related doctrines of justiciability—each originating in the case-or-controversy requirement of Article III [of the Constitution]— underlie this determination….. First, a plaintiff must demonstrate standing, including “an injury that is concrete, particularized, and imminent rather than conjectural or hypothetical.” Carney v. Adams, ante, at 6…. Second, the case must be “ripe”—not de-pendent on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U. S. 296, 300 (1998) (internal quotation marks omitted).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 pol-icy is “no more than conjecture” at this time. Los Angeles v. Lyons, 461 U. S. 95, 108 (1983).

To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here…..

Here the record is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can even match the records in its possession to census data in a timely manner…. Uncertainty likewise pervades which (and how many) aliens the President will exclude from the census if the Secretary manages to gather and match suitable administrative records. We simply do not know whether and to what extent the President might direct the Secretary to “reform the census” to implement his general policy with respect to apportionment….

At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this 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 the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.

The dissent by Justice Stephen Breyer, on behalf of the three liberal justices, takes issue with the majority’s standing analysis, arguing there is a high enough probability of injury here to resolve the case now. He emphasizes that there is enough evidence to show that the administration likely has the data to exclude hundreds of thousands undocumented migrants already:

We have long said that when plaintiffs “demonstrate a realistic danger of sustaining a direct injury as a result of [a policy’s] operation or enforcement,” they need “‘not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.'” B