On July 21, 2020, President Donald J. Trump issued a Presidential Memorandum, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” Presidential Memorandum, 85 Fed. Reg.at 44,679. In it, the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status . . . to the maximum extent feasible and consistent with the discretion delegated to the executive branch.”
The State of New York, joined by others, filed suit against Donald Trump to declare void and enjoin a Presidential Memorandum which directed the Commerce Department not to count illegal aliens for apportionment purposes. The result of such a policy would be to deprive California, New York, and others of representation in Congress and in state legislatures.
Today in New York, et al. v. Trump a three judge panel of the United States District Court in Manhattan issued an Opinion and Order declaring the "Presidential Memorandum is an ultra vires violation of Congress’s delegation of its constitutional responsibility to count the whole number of persons in each State and to apportion members of the House of Representatives among the States according to their respective numbers under 2 U.S.C. § 2a and 13 U.S.C. § 141."
The summary judgment Order can be appealed directly to the United States Supreme Court because it was commenced under 28 U.S.C. § 2284 which provides that “[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” The District Court panel [composed of two Circuit Court judges and one District Court judge] issued a declaratory judgment under 28 USC 2201. They declared the President's memorandum to be "unlawful" and entered a permanent injunction against its implementation. The injunction - because it rules on constitutionality may be appealed directly to the United States Supreme Court under 28 USC 1253. Although Donald Trump is the first named defendant "in his official capacity" the injunction is directed not to him but to the Department of Commerce, Secretary Mnuchin, and the Bureau of the Census.
It is not known what action the Trump administration will take. They have been very successful in obtaining stays of District Court orders, a pattern of which Justice Sonia Sotomayor has complained bitterly. But the criteria for issuance of a stay, which is best seen as an injunction against a court, customarily emphasizes the maintenance of the status quo and avoidance of irreparable harm. On both counts the District Court judgment should be secure. Trump's July memorandum changed a historically uniform practice. If implemented thousands of illegal immigrants could not be counted within the statutory period for conduct of the constitutionally mandated decennial census.
- GWC
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