A federal court panel is the first to decide on whether the president’s memorandum directing the U.S. Census Bureau to report the estimated number of “aliens who are not in a lawful immigration status” is unlawful. The memo’s stated purpose is to subtract this estimate from the total population in each state – the number that is historically used to apportion congressional seats among the states. Read the opinion here.
Officials Enjoined: The court enjoined all of the officials who were party to the lawsuit from reporting the estimate in the official apportionment report. The court did acknowledge, however, that officials could proceed with any research pursuant to the presidential memorandum in the event that a higher court overturns its decision. A nod to the near certainty that this decision will be appealed to the Supreme Court.
“the Court enjoins all Defendants other than the President from including in the Secretary’s report to the President pursuant to Section 141(b) any “information permitting the President . . . to exercise the President’s discretion to carry out the policy set forth in section 2” of the Presidential Memorandum — that is, any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.” Presidential Memorandum, 85 Fed. Reg. at 44,680. Instead, consistent with the Census Act, the Secretary’s Section 141(b) report shall include only “[t]he tabulation of total population by States under” Section 141(a) “as required for the apportionment of Representatives in Congress among the several States,” 13 U.S.C. § 141(b) — that is, “information tabulated according to the methodology set forth in [the Residence Rule],” Presidential Memorandum, 85 Fed. Reg. at 44,680.20 To be clear, as an exercise of its discretion, the Court does not enjoin defendants from continuing to study whether and how it would be feasible to calculate the number of illegal aliens in each State. That ensures that in the event that a higher court disagrees with our ruling . . . the Secretary [of Commerce] will be able to comply with the Presidential Memorandum in a timely fashion. “
Meaning of “Whole Number of Persons“: The central issue in the lawsuit is the interpretation of Sec 2 of Title 2 of the U.S. Code, which requires the President to transmit to Congress a statement showing “the whole number of persons in each State, . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then-existing number of Representatives by the method known as the method of equal proportions.” The court found the wording in Title 2 to be dispositive, leaving no discretion to the President to alter the population basis for apportionment.
