because illegal aliens would be chilled from participating in the enumeration but that counting is now over and whatever chill ever existed has thought apple leaf there for pivot to possible future injuries but as of this very morning career experts at the census bureau confirmed with me that they still don't know even roughly how many illegal aliens will be able to identify let alone how their number in geographic concentration might affect apportionment and if they don't know certainly the other parties to this case do not the court therefore should follow the course charted by the three judge d c district court last week vacate the judgment below allow the secretary to comply with a memorandum and allow any effect on apportionment to be litigated as it normally would be in a post a portion of a lawsuit by parties with concrete injuries on the merits there's no procedural problem with the memorandum the president may direct the secretary to send him two sets of numbers so that he may decide how to exercise whatever discretion he has the real fight here is substantive over how much discretion the president has text history and precedents or all clear about the general test whether one is an inhabitant the question is how to apply that test to people who are present in the country illegally treating someone apprehended at the border on march st or scheduled to be removed on april nd as a usual or settled resident of the united states on april  flies in the face of this court's cases common sense and any sound theory of political representation the president has at least some discretion to determine that at least some illegal aliens lacking during ties to the state which means that the judgment should be reversed i welcome the court's questions general my st question goes to the very st point you raised we expedited this case in light of the december thirty one deadline for the secretary to transmit the census to the president is that date still operative do you still need a decision by that date on the situation is fairly fluid mister chief justice we because of the two weeks that we lost to the california injunction and some subsequent issues in processing the data we are not currently on pace to the end of the report to the president by the year in the statutory deadline but just this morning i confirmed with senior leadership at the department of commerce and the census bureau that we are hopeful and it remains possible that we can get at least some of the pm related data to the president in january so we do still need relief from the court yes it sounds like you had a busy morning what do you mean pm data i'm sorry the presidential memorandum data so the data the president has requested in order to potentially back out illegal aliens from from the apportionment base on the standing question if the court doesn't intervene now before the secretary transmits  the information to the president i don't know when the court would be able to intervene at all all that would be left after that transmittal is the transmittal by the president to the house the bureau is able to feasibly identify enough aliens and the president excluded those categories and that affects the apportionment those are all three unknown but if that happens then you have a post apportionment challenge just isn't frank went for the secretary to revise his report and for the president to send a new report to the house in effect to redo the a portion well isn't that going to be like having to unscramble the eggs i mean  e apportionment any change in any one state of course is going to have ripple effects all across the country and it does seem like you'd be more manageable at an earlier stage jones i don't want to resist too much because we would prefer for the courts to reach the merits and uphold the presidential memorandum we just think for the reasons given by the d c district court last week there are too many unknowns here i do so i take the point that  there is a bit of an omelet to unscramble but we do on scramble that imposed a portion of the lawsuit so it's possible to enter relief and on the flip side you could have the court issuing an opinion on what the president may or may not do only to discover days or weeks later that it's effectively advisory because the numbers are large enough to affect the apportionment and the apple ease here and other potential police wouldn't be injured either with respect to apportion or funding that strikes us as a fairly serious problem either as a matter of article three standing more prudential ripeness general just very quickly should we assume that we're not going to be talking about all illegal aliens in the country but some subset some uncertain subset like the ones in ice detention i think it is i think it is very fair to say mister chief justice that the president has not made a determination yet because we don't know what's feasible about excluding all illegal aliens and as recognize that some that the relief wasn't addressed bill because when we couldn't run against the president and the court held in utah and no one has asked here the pageant be over ruled that it was fair that you could obviously enjoying the secretary of the subordinate official and that the judiciary would assume that the president would comply and so to hear there's no reason to believe that the president would not comply with this court's judgment either now or in a post apportionment context in utah is my understanding that was actually the yes it was and it was a challenge to certain procedures that were being used with respect to the the census it was a in effect a sampling claim ok but here we're talking about something separate from the census or  know i think that's the other side's argument justice thomas i think they have they have seized on the fact that we've sometimes used the word census to refer to the counting and said look you know the census bureau came up with a final number and the president  centrally accepted that but then sought to back out illegal aliens and i don't think that's right the presidential memorandum makes clear that he was exercising his authority under franklin to determine the apportionment based after the counting and so the commerce department or the census bureau that says this is not the section one hundred and forty one report but here's our what we think those numbers look like the statutory scheme seems to contemplate that the president will rely on the secretary's report in sending his submission to congress now franklin says he's entitled to reform the data that the secretary gives him but i think it would be a much more difficult question if he tried to act entirely outside of the process that the statute set up now obviously here he hasn't done that he's just exercised his authority under franklin to tell the secretary that he wants to look at different sets of numbers so that he can make a decision about the unfortunate illegal aliens but could you give us your idea of what the president means generically illegal alien he means people who are present in this country on lawfully  that does it that include a number of different subsets we've named several of them in our brief which i think are the clearest cases for the exercise of the president's situation but there are a number of other sets of subsets too but the entire category is is people who are present in this country in president that's the report we're concerned about that's the tabulation we're concerned about and is based on that where you go to a the president shall transmit a statement showing the whole number of persons for the purpose again of apportionment so we're not interested in other ways we're interested in this report in this tabulation under one hundred and forty one b now if i'm right so far the president's order says i'll tell you why i want that i want that because our policy that illegal aliens will not be included in the census i can't exactly what one doesn't say that it just says illegal aliens will not be included and he asked for the report so he can do that now if the constitution for bids him to or if the statute forbidden to subtract from the tabulation for purposes of the statement it had forbidden to subtract those your illegal aliens or to the extent it does the tabulation on the report are not the tabulation required for the why i think i agreed with you up to the very end justice breyer i think you correctly understand how the statutory provisions which were passed together in one thousand and twenty nine work and i think it's true that if the constitution or statutes constrain the president's ability to back them out then that would mean that his statement setting aside judicial review his statement to congress  a would be on lawful but i don't know that any of that is a constraint on his ability to simply request for the information from what is not the information if it's unlawful that is required for the apportionment of re illegal now whether it's illegal or not is a different question all we have on that is about forty breeds that show that the history of the language the consequences the purposes in a bunch of other things argue against you but you have arguments run together the procedural and the substantive issues i think what you're really getting at is the substantive issue of what the president's powers are here not any of the procedural issues that they've raised with respect to the to the memorandum so i agree with you that what's really at issue here is that substantive question that you're focused on well maybe but we're not suing the president they're not they're suing the secretary and they're saying mister secretary you cannot give to the president this requested information and also say that that piece of paper that just send him is the tabulation as required for the appor of representatives and maybe something else but it isn't that and that's what he's asked you to do and that's what you're trying to do and mister secretary if you do the legal you can't do it that's right just as far as my only point was that doesn't have anything to do with their procedural arguments about the use of administrative records or whether this is somehow part of the census you know it's all just their substantive claim that the president doesn't have the power to ask ok then you know now when it says persons this started in and twenty you know and they've always counted people who are hearing that and not naturalized and this is never happened before they're doing food illegal aliens and it has a lot of negative effects on the state you know all those arguments and they're they're fairly strong ones just as mayor what do you what do you want to say their persons are briefly counsel just very briefly just for there's two different things there one is the historical practice which i hope i'll be able to address later because i think franklin takes care of that the other is the texan history none of that goes specifically to the question of illegal aliens justice alito general wallace i counted try to press you a little bit on some of the answers you gave to the chief justice because i find the pos through this case quite frustrating it could be bad we are dealing with a possibility that is quite important it could be that this is much ado about very little it depends on what the census bureau and the department of commerce are able to do if i just take the numbers from the district court and d c s opinion last sampling to take three hundred million dollars plus names and determine individually for each of those people whether they are lawfully in the united states and i would think you would be able to tell us whether that remains a realistic possibility at this point can you not provide us with any more information what you provided in your answer to the chief justice was that basically they're working on it  i can provide you with a little bit more i don't know how satisfying it will be but i think it is very unlikely that the bureau will be able to identify all who are substantially all illegal aliens present in the country so anything like th ten or eleven or twelve million numbers that are flying around they will be able i think to do ice facilities which as you say is some number in the s of thousands the question is where it will fall in the middle and we don't know and the reason we don't know is because it it  it turns a great deal on the level of detail that we've got in doing the enumeration and until we actually take the census master file and these various administrative records once they're all cleaned up and ready to go and we actually run the models in a few weeks or we know whatever it is we won't actually know how many people we pick up and so you know i've pressed the deputy director of the census bureau on this very question and the simple fact is that the experts don't know they don't know whether it'll be fifty thousand or eight hundred thousand or five hundred thousand or a one million so there's just substantial uncertainty before my time runs out i'm no expertise  area i can understand if they say all we can determine is how many people are in detention facilities or subject to final orders of removal if they're going for the bigger picture and trying to identify everybody who is in this country lawfully i don't see how that they can provide a partial answer to that if they were to say well you know we've done this for two hundred million people we don't know about from one hundred million plus additional people that there's no way a apportionment could be based on that is where they're trying to get the categories of illegal aliens that you could identify based on the kinds of records we have so final or ders of removal for instance for people who've been removed who are found here again and haven't been given any lawful status so it's not that we can pick up everyone there will be some undetected illegal aliens who we aren't even attempting to screen for because they would be picked off obviously by the record it's the categories that would be shown by some sort of record that we have and the question is just how feasible is it going to be to capture large numbers within those categories and unfortunately we don't know at this point and it's a feature by the way though i have to say none of the government's conduct it's a feature of the fact that apple e's brought the pre apportionment challenge on the basis of this injury that was always going to cease in the past just for some  and who does not have permission to be here in the united states now yes he limits this to where it's feasible to identify that but right now his policy is if i can identify them no matter what the reason is for them being jailed and illegal alien i'm going to exclude them from the census following up on justice alito question aren't those the very categories with the information quote necessary to fully implement the presidential memorandum i'm quoting the census bureau so if i take that at its face it means that the number is not going to be sixty thousand the number intended is substantially larger and i think that was justice of needles point which is the census bureau has been collecting data about undocumented immigrants from any other agencies for over a year i don't see how you can represent to us that you still think it's going to be a substantial number three quick points just to sort of mirror st i think there's i don't think there's actually an accurate statement of the memorandum you're surely right that that's the policy but there are two built in limitations one is whether it's feasible and the nd is whether the president decides that he has the legal discretion to exclude all of these subsidies and the subsets might have different legal analysis depending on the kind of ties they have or the type of status they say they have with the sec is an issue  and twenty now whether you're in a prison in ice detention army that fifty seven percent of the people in potential will eventually be released to the united states either through asylum or through some other mechanism so i am not sure how you can identify he clashed with immigrants that isn't living here in its traditional sense that this is where they are this is where they thought they were on april st and where they intend to stay if they can find any way to do just similar based on my understanding from the census bureau there is a real prospect that the numbers will not affect the apportionment but as i said earlier to the chief justice i'm perfectly happy if the court disagrees with us on that and disagrees with the analysis of the d c district court last week and moved to the merits because we think on the merits the court upholds a presidential memorandum because at least some of the illegal aliens captured by the presidential memorandum don't satisfy the test for inhabitants of the other and as a matter of the constitution where the statute well what you're saying is the memo says i think anyone presidential medal s think anyone without papers should not be counted now you're saying well maybe the president will limit that subcategory but that's not what he's asking for he's asking for all of those illegal aliens that can be on identifying and wouldn't help her to see this argument that we shouldn't rule in hell or we knew that there were certain people who states co guns in their home but we didn't say because there's that subset we're not going to declare what the general law is so why should we do the same thing here you can't exclude illegal aliens ma because they're on documented the court would have to conclude in order to say that the district court here did that the president doesn't have the discretion to exclude any illegal aliens from the apportionment base even some subset because the injunction here did with him from getting any of the information he needs to exclude any subset and he did make clear in the memorandum that although as a matter of policy he wanted to exclude the entire side that he had not yet made a judgment on whether he had the legal discretion to do that for the entire class he wanted to see him in the rear of the just general i can keep going with the line of questioning that the chief justice and justice  president will decide to do with respect to that he had any new jamming obviously you have papers all kinds of records on those people so i think that that sounds pretty feasible to me but the problem is the matching justice  right we have the administrative records where we don't know is the number that participated in the census either through questionnaires or other proxies and that provided sufficient detail to do the matching that's the problem here ok it seems to me you either know whether you can do match or you don't know whether you can do math or why the un certainty on that because until you actually compare the one set against the other side you just don't know on the hits you get but again just  i'd love to move to the marriage because if the court decides we're wrong and that this really is teed up constitutionally or potentially even though there may not be an effect on apportionment i think that there are good reasons that we have media talked about why normal case because additional courts of already decided the merits so i think this is going to move even more quickly than this round of litigation which obviously only took a few months but you bring the fuse that you bring the case you give the order to the secretary to  couldn't say just came because it depends on when the report gets to the president how quickly the district court into relief and then the forty the aggrieved comes up to this court but i would think a matter of a few months do you think that given that your answer and when the same around and a normal way and you could tell us when that expedition was necessary when you know i think the problem justice kagan is this is all fairly fast moving and if the court doesn't enter some kind of relief we would face a real prospect that the secretary would never be able to send the report to the president and the president and wouldn't be able to turn around and send a report to congress so they know there's a lot of there's a lot of controversy between the parties and in that sense which is we want to be able wall i'd like you just to press a little bit further on one of the one of the practical difficulties and the likelihood of actually being able to do the matching process with respect to various categories  it seems like the one common ground is that the ten thousand or whatever number it is currently in use detention is something you think will be will happen beyond that can you give us any sense of the difficulties for likelihoods i can which the bureau is working very hard but as i say until they actually do the comparison we just won't know how many identifications we're able to make and whether that stands to affect the apportionment so is it a reasonable reasonable prospect to think that it would be limited to the number of persons currently in ice detention i think that is possible but it is also very possible that they will be able to do more as i say we just we don't know at this point i wish i could provide the court with more i can't that's why we think that the court should vacate the judgment and not get into this but if the court disagrees as i say i would love an opportunity to turn to the merits and talk about why i think they can satisfy either half of the usual resident test either the residency or the usual or subtle requirement i have a question in an entirely different direction your colleagues on the other side pointed in a footnote i believe it was in their briefs to the over the meaning of a statute that doesn't exist i hope to get some response from the government on that in its reply brief but didn't see any perhaps i missed it and what is the government's view about the status of section two the new york suggests well maybe it is repealed but to the extent the government wishes to comply with the repealed statute it has to follow this through repealed statutes terms as one response another response that the only thing repealed are reports and this is a statement to the given have any views on any of that yes in our view it's not annual semiannual or other periodic reports poverty by st of the statement which is why in two thousand and one in two thousand and eleven the executive branch sent over the statement in the house reapportion to the statutes require it's never been litigated i'm not aware we've even ever to a right right there listed just so sorry just to be more clear we don't think the language picked up everything in the clerk's lives because there were things on the clerk's list that wouldn't qualify it only picked up things on the clerk's list that s deadline under the statute but it's not as if it has to go over at some set period or on a particular date every time so we don't think that statement qualifies ok if i were if i were to disagree with you and think that every ten years does appear to be a kavanagh thank you chief justice and good morning general wall you forcefully argue that there is too much on certainty that the dispute will become a concrete article three controversy only after the president transmits the statement but i want to button up some things on that to make sure on the same page and follow up a bit on what justice kagan was asking you st of all you're not saying  transmits the statement and there's a question about injunctive relief against the president so i think you're saying then we can assume as the court has before that the president would comply by a declaratory judgment requiring him to transmit calculations that include those non citizens live on living on lawfully within the country if we were to issue such an order our after the president transmits the statement is that accurate yes and your argument for waiting is based on uncertainty uncertainty again as justice kagan and the chief justice and justice alito were asking about the numbers but one thing that was in the d d c use of sampling is what the opinion said and that the memorandum the presidential memorandum rules out the possibility of using an unlawful method is that accurate or what's your response to that we're not a plane this is what i was trying to say to justice kagan earlier we are taking the records from the ministry of agencies and we're taking the data given by individuals with respect to the census and we're comparing them we're literally trying to individually identify people who are present in the united states in violation of federal law and because we are not tabling and we are doing this fairly cumbersome matching process it's just not clear what results we're going to get or whether it's going to affect  was it possible to exclude is it possible to get the information to exclude all non citizens living i'm offering the country or is it possible only to get information as to subsets at this point you may not know the answer to that though the latter it is only possible the records will only cover a particular subset ok so it's not possible to exclude all non citizen when the country already know if you took somebody who crossed the border illegally was undetected and did not participate in the census that person might not be found in any administrative record and they wouldn't be on the other side of the ledger either because they didn't participate in the census that person just would not be captured by this process not even arguably and then on the question of rightness or standing our our doctrine as i see it parts of the rightness in korea really similar if not identical to parts of the standing inquiry if you look at the phrasing in cases like ohio forestry on right notice and cases like susan b anthony on standing the key point i think is that the memorandum and imposes no obligations on the plaintiffs to do anything at that at this point unlike for example a typical agency regulation that might say impose some dut requirements on the plaintiffs and we allow pre enforcement challenges we call that a lack of rightness we've called that no standing do you think it matters which we call it and you agree that the two inquiries overlap on that particular historical evidence in a longstanding practice really cuts against your position and you know there's evidence that in the founding era and inhabitants was a do well or who lives or resides in a place you do have this of a tell quote that defines an in federalist forty two when he talks about a state allowing you to become an avid it is fairly powerful and what i'd say is little good there isn't a lot of attention given to the specific question of illegal aliens for the st half of the country for vs reasons but the court does have to deal with the residents or dwelling question in other statutes and the answer it consistently comes back with is if you've entered illegally you are not treated as if you're dwelling or residing here you're treated as if you're stopped at the border and the other side doesn't really have any answer to why those cases shouldn't equally apply here and say look if the test is usual or settle the resident you're not thought to be a resident and even if you are there's nothing unusual or settled about your residence if your presence is violating federal law and the sovereign hasn't agreed to let you stay and saddam documented person has been in the country for say twenty years you know even if illegally as you say why would some person have it such a person not a settled residence here though so he takes long term embassy personnel so somebody who's worked in an embassy for fifteen or twenty years to spirit that person certainly has ties to the community and yet we have excluded them in some past censuses because they're not the sort of ties just as with illegal aliens that amount to residence or dwelling or what franklin calls allegiance or an enduring tie and so to federal personnel overseas they're not residing here they may spend two years at a time abroad but we still think they have the kind of tie that counts here and so i think i'm not disputing it all that illegal aliens form ties to the community in in the sense you're talking about but they're not the sort of ties that are sufficient to qualify you within the apportionment base because they don't count toward a residence or dwelling within the meaning of these federal statutes but you can see that illegal aliens have never been excluded as a category from the census yes we have taken account of alien agents certain ways before but yes and that's the best argument on the other side there is a historical practice and if we didn't frank one thing could be tougher for us but we know from frank one that the fact that you've got a fairly a broken practice doesn't necessarily mean it's constitutionally compelled they need some evidence that that has to be the rule as a constitutional or a statutory matter and that's what they don't have they have a bunch of historical evidence that they think that the founders and framers of the th amendment didn't want to limit it to citizens or voters completely agreed with with all of that but what they don't have is any evidence that they specifically wanted to include illegal aliens because they thought even if you came here in violation of law you were nevertheless an inhabitant that's the very question that in other has answered in the negative by saying you're not a resident so it's just been an annex says discretion all along he could have been excluded from the sentence census and the fact that they had not been excluded before doesn't mean the president can't make the choice to do so  now i show two and franklin just as fair but i guess i qualify it a little bit for the st half of the nation's history the question doesn't come up because you don't have federal immigration restrictions and for the nd much of the nd half it doesn't matter nearly as much as it matters now so look i'll certainly grant that you know presidents made this judgement for no president ever focused on it before but i think in order to say as in franklin that the president can't do this he can conclude there was federal overseas personnel even though they hadn't been included for  the host of censuses would they need to point to something in the text for the history that clearly mandates that they be included in the portion of base and that ever you legal alien it's not the only the ones you're talking about that have ties to the community it's somebody who's apprehended at the border and in an ice detention facility sometimes only for a day or two before being sent back to mexico or the northern tribal identity to the minute to wrap up general thank you mister chief justice so just as i was saying earlier called not the legal judgment and the effect on apportionment and as i said to just kavanagh we don't think it matters whether the court labels that under article three or provincial rightness but we're happy for the court to disagree and go to the merits because there is a fairly small window of time here for the court to decide the merits on the merits they can satisfy either half of the test or not residents and there's nothing settled about their residence and they have not offered any coherent theory of political representation  all illegal aliens should be included in the apportionment base for those reasons if the court reaches the merits we think it should reverse in a poll the memorandum thank you general wall general underwood mister chief justice and may please the court the constitution and laws require that seats of the house be apportioned according to the number of persons in each state the president's new policy of refusing to count people who are not in the lawful immigration status is flat inconsistent with that command our laws reflect a deliberate choice not to base apportionment on citizenship voter eligibility or any other legal status but instead to count the number of people living in the state that has always included people eligible to vote including non citizens and it has also included people who were present in violation of law the memorandum treats counting people as a reward to be withheld from state but has undocumented immigrant but our laws use counting people for apportionment as finding facts not giving and withholding rewards the memorandum pretends that if under the law a person should not be here then the person is not he the government can do many things to induce undocumented immigrants to leave but they cannot declare them to be gone when in fact they are here and likely to remain my friend says the policy must be upheld because some undocumented immigrants could excluded from the count whether they could is disputed but in any case that would not support this policy which applies to all undocumented immigrants and refuses to count them solely on the basis of undocumented status as this court recognized in shelby county an unlawful policy can't be saved by the possibility that a lawful policy could be written the question here is whether a blanket policy of not counting undocumented immigrants is lawful and it's not because undocumented status alone doesn't tell us where a person usually resides this policy to ignore is the undisputed fact that millions of undocumented immigrants have lived here for decades and have substantial community affirm and injunction below which was to declare the policy invalid in violation of law and the constitution as well but the statute would do and injunctions against transmitting the information about undocumented persons as part of the report on which that's the precise issue i want to focus on it's seems to me that you're asking really for a gag order on the secretary president and but also in a separate envelope puts information on the number of illegal aliens and he sends both of those envelopes to the president is that fine with you that is yes that does not violate the injunction if there is no gag order to be placed on the secretary of commerce he can be asked for and respond with all sorts of information but the one hundred and forty one in that particular statement and trans report to the congress information for the apportionment and he can he can do the math he can take with the census that the secretary is transmitted she would have it and subtract the number of illegal aliens or has said the president would complying with such a declaratory judgment then the answer is well he would have the information in principle he could use it he couldn't issue a report to congress that was in violation of the constitution  violate the law it would be a transmission of information so what does that accomplish because i thought that your your your major concern is the use of that information by the president is i think are there not many statute which divide funds among the states on the basis of population and then they say something like quote as shown by the most recent report that is sent to congress it also will have an effect on the distribution of funds if the information is sent separately that that's not what i'm thinking of i'm thinking of supposes one hundred and forty one b report franklin versus massachusetts franklin massachusetts of course said that the secretary has and the presidents have some discretion but it's not unlimited discretion franklin recognized usual residence as the test and then treated overseas government workers like other situations recognized at the founding people absent from the state where they have a residence and continuing ties and intend to return they think of themselves as away from home and franklin recognized but that situation was suitable for the exercise of executive discretion there is no support thank you i have two questions that are important to me i hope i'm going to be able to squeeze them both in and my time come st concerns your answer that it would be fine for the secretary of commerce to submit numbers  exclude illegal aliens if it was done in a separate document once you can see that unless you are asking us to overrule what franklin seven about the president directing the secretary to reform the census then i don't really understand where your argument is going suppose suppose the tables were turned suppose the president wanted to count every single person who was states on census data but the secretary of commerce took it upon himself to give the president numbers so they excluded every illegal alien do you think the president would then be able to direct the secretary of commerce to reform those numbers and make them comply with the theory the president accepted the president would under franklin have the ability to direct  reformation of the census there would be this question the same question would be a different question there's always the question with you that reformation is constitutional or not you know will die because of the substance of the issue which i do want to get to but if the site once you can see two documents are possible the president can ask the secretary to reform the numbers that are sent to him i don't understand why there isn't  why why the situation where both sets of figures are submitted in a single document is any different seems like a totally meaningless formality it's not a meaningless formality in the sense that moment in the process when judicial intervention can operate the problem arises because one is the president because because of the reluctance of the court to enjoying the president so the injunction operates against the secretary and what he can transmit and then the president and the in telling the secretary what he can put in those in the one hundred and forty one dollars report the court will also be people and ask you to answer yes or no to the extent you can whether you think each of these people in each of these categories must be counted for a portion or purposes  tourist who overstay sort of years and therefore here illegally well that person is now outside the realm of we expect them to leave and so that person is him by the secretary if the secretary gives him the illegal numbers to exclude then he can use an outside report to exclude those people from the apportionment fact carets he cannot use he can't do any given legal report yes and then he can use a separate report to tabulation has to provide him with the numbers that he uses correct correct and so if it is illegal for him to exclude illegal aliens sorry for for for that then we can do in secondly what we said could be done previously which is to order the secretary not to give the president illegal numbers correct correct that's your point which is if he's going to tabulate and exclude illegal aliens we have to decide as a matter of law whether the word persons as used in the statute in constitution will live here permits the exclusion of illegal  that's a legal question correct if he later the size that he wants a particular category of people to be excluded tour of illegal aliens then he g census prefer secretary earlier that says this category i think should not be here for these reasons and if the secretary says i'll give you those numbers then we would have an identical franklin decision where they could come in and to say to the secretary no you shouldn't permit so and so legally and ensure yes you should whatever the answer is correct agree and that's what's missing here which is the president is asking to the numbers the category of illegal aliens records on tons of people i mean we're not just talking about ice detainees and by the time you think about that the recipients and people in removal proceedings and a number of other categories you easily get over four million people that's not the problem the problem is a match and problem and potentially the department has not yet sort of gone through this process of trying to match those numbers point i would not know approximately how many people they'll be able to exclude of all the people that they have administrative records on and i have to nd question would be is that what we should be focused on or is that an  important question well i am not a master of the technology here i do know that there is a process by which matching occurs and i do not know i cannot opine on how successful they will be i can only say that what we have is a lot of evidence that they have a lot of numbers available that they are working as hard as they can do as much of this as they can that subtracting just some of that four million or so from the count would be enough to take a seat away from one or more  states and that speculation at this point what we have on this side of uncertainty is speculation we have repeated representations from the census bureau in the department of justice that they are  working on this since july th teens and they're not starting to tell us about the categories that they will be able to identify and match and that if they are turns out to be a problem there isn't enough here to be the basis for any judicial action it's speculation that they won't be able to do it at this point so it seems to me that it would make sense is my going sense for this court to wait a couple of weeks and find out whether there's more information that would shed some light on this question just gorsuch and get out good morning ms underwood it is a matter of speculation whether they're going to be able to include or exclude why isn't that a standing problem or rightness problem now if we must rule now and as i understand it the can't use statistical sampling so they're going to have to match their detention records or their docket records against the actual enumeration in the census and at the present they tell us that that might not be able to do more than maybe the illions in the eyes detention facilities which would be in the s of thousands and perhaps not affect any apportionment at all well i think that they're not saying they're only going to be able to do ice detention they're saying that that's a group they already know they'll be able to do in that they're working feverishly to do the same for other groups and we know from the last round of census litigation that they have the ability to do matching now i can't speak to the technology of it but they were quite confident that they were going to be able to do matching so but miss underwood i guess my question is you know you can see that it's speculative as to how much they're going to be able to do and once we are in that world then it's speculative whether there is going to be any effect on the apportionment and and in that world we have a standing problem going well i think that's not quite the world we're in i think we have a substantial risk of ensuring that all the evidence until very recently was that they were going to be able to do to implement the presidential memorandum and that they are now just now saying that they're not sure how fully they're going to be able to do it so i think that's a substantial risk of injury sufficient for article three standing and i think there could be a as a matter of prudence some interest in waiting to get more information since they sure that's going to be the dispute and so i want to explore that if we said now if you want to say that the secretary and the president cannot exclude all non citizens living here on wall forty suppose we say that and then the president excludes not all but some subsets then we'll be right back here with litigation correct well i think that what you would have is you would have invalidated this all by saying we're going to exclude some subsets and then they'll be litigation on that will be right back here which is that have perhaps that i mean there were two now we're speculating floor about what he might like to  president we've assumed in the past would comply with a declaratory judgment we've said that the solicitor general confirmed that today does does that eliminate the problem that has forced or we would you would issue a declaratory judgment action against the president and if the secretary has already done everything he was going to do then it's not clear exactly who would be appropriate re illegal aliens if as general wallace said the president and the secretary of commerce are only able to identify certain categories and as justice kavanagh said if that means that there would be litigation on a case by case basis about whether such categories should be in or out doesn't that cut in favor of waiting that maybe there's no injury here because we're not really sure what the contours of the decision would be well i think i should  object to the idea that the categories are so small that they won't make a difference and that they would be litigated one by one i think that's the policy that the president articulated is as many as possible the memorandum while while mister wall says we were going to exercise the president would exercise discretion after this information came in the memo says to the maximum extent of the president discretion so the policy is clearly not to identify some categories it's to do as much as possible and the categories that are available are just going to be whatever they can and  think this court can speak to that policy now is it likely that they would come back with other new policies perhaps i don't think that would always be true i don't think that's a reason not to decide to question this here now but what is what if we say that he cannot categorically exclude all illegal aliens he says fine i'm not going to do that i'm going to count everyone who's in an ice detention facility everyone has in removal proceedings and maybe say  dock a recipient but i agree i have reasons for thinking each of these don't satisfy the inhabitants the requirement when to just be back litigating most specific issues yes i think we would yes ok thank you my time's up a minute to wrap up general underwood the constitution and laws provide that have seats should be allocated on the basis of total population the framers wanted a system that could not easily manipulated so they decided to count just the persons living in each state the policy here would for the st time in this nation's history reject that choice people who live in a state without lawful immigration status still live there they are not invisible and like other residents voting and non voting their presence requires attention from the government and the need for representatives to give that attention that is the rationale for one rationale for including them the decision to refuse to count them has produced a live controversy from the moment it was announced and now this court should resolve the controversy and reject the policy that we've refused to count millions of people who have lived here for decades have jobs mortgages families and community ties and reside in a state under any reasonable interpretation of those words thank you general mister home mister chief justice it may please the court for two hundred and thirty years dating to the founding faith have always held seats in the house according to the number of persons in each state without regard to immigration status now with respect to standing the test under susan b anthony is whether there is a substantial risk of injury and past experience shows that it's easy to risk changing the apportionment in utah versus evans according to the party summary judgment briefs the practice of imputation added a total of thirty two thousand dollars people in north carolina and five thousand dollars in utah and that difference was enough to shift one seat from the latter to the former we know he said the number the numbers here are much bigger as justice kagan pointed out the government has information on millions of undocumented immigrants and one and a half years ago when the president issued an executive order in july of two thousand and nineteen he stated that the government has already matched citizenship records for ninety percent of the population so there's a substantial risk of injury now and it would be better to resolve this issue now rather than and six months during the redistricting process which could be disruptive mister holmes what is the problem with post apportionment litigation right now as the questions of shown we don't what the secretary's going to do we don't know what the president's going to do we don't know how many aliens will be excluded we don't know what the effect of that will be on apportionment all these questions would be resolved if we wait until the apportionment takes place so why aren't we better advised to do that well i think waiting a couple of weeks wouldn't be very disruptive mister chief justice but the record establishes that there is at least a substantial risk of a shift in the importunate now which is enough for standing and if the question is should the court wait now or send it back for another round of expedited proceedings then there are many good reasons to decide this case now the government argued that waiting would deprive the nation of prompt notice of reapportionment as required by statute and that it could be very disruptive to redistricting process he's in a number of states in the meeting a couple of weeks isn't going to give us much more information than we have now waiting until apportionment will give us all that information that we we don't have i'm sorry m chief justice i did mean waiting four weeks or so maybe four and a half or five weeks depending upon when the apportionment report is delivered to see what those numbers look like i'd agree that that short of a wait wouldn't be disruptive but if we're talking about sending this case back for additional proceedings in the district court another expedited appeal and doing this all over again over a period of several months then that would be i think disruptive to ongoing redistricting process he's in fact you found so justice this case as the questioning seems seems to suggest there's some difficulty in assessing exactly what information will be available and what that information will be justice thomas the challenge here is to a policy that broadly mandates the exclusion of undocumented immigrants to the maximum extent under law and the government's position is that under law all undocumented may be excluded as solicitor general wallace noted their view is that the entire category of undocumented immigrants are not inhabitants of the court is presented with a facial challenge to a categorical policy the government's been free to issue a narrower memorandum excluding one or more subgroups as purported nonresidents rather than taking aim at undocumented immigrants writ large and it hasn't done that it's the categorical policy that's at issue and it's unlawful and they do it would be the i think your argument would be that the implementation of a categorical policy would be unlawful but what i'm hearing is that we don't exactly know which category or subcategory will be excluded as i take a closer general walls representation here is that the government will exclude to the maximum extent that's feasible and that's permitted under law and the government's view is that the entire category of undocumented immigrants may be excluded under law even if we take the government's three proposal subcategories of undocumented immigrants who are supposedly per se excludable those categories are quite heterogeneous they're overbroad i don't think that they are all  or under final order to remove well justice prior vote population of people in ice detention as i noted is quite heterogeneous even under the government's definition of inhabitant many of those people would qualify you can be a lawful permanent resident and be in ice detention and even a person who is say detained at the border or that person can apply for asylum in some years more than half of asylum c going to exclude not count people who are under legal order to remove people under final orders of removal can actually reside in the country for quite a long time they can petition for review to courts of appeals they can seek other forms of relief they can challenge their orders collaterally some are never actually deported even after going through all of the of those processes because their home country so what line would you draw between those whom they could legally deport not count and those whom they can't  constitutional standard as this court explained in frankland is usual residence and the plain meaning of that term turns on whether or not someone commonly resides in the united states it doesn't turn on their lawful immigration status those that term usual residence was defined at the founding as where a person commonly lives or sleeps that's in both the johnson and the bailey dictionaries that we cite and if you look at the dictionary that the government relies on webster's eight hundred twenty exclusions on the basis of lawful immigration status it turns on whether a person's physical presence is transients or not justice alito i want to try to see if i can get you to answer justice breyer's question last time we had a case involving an alien mister harris say jim who crossed the border unlawfully and was almost immediately apprehended and then placed in detention where he had to be current resident fools if he would but i just would note that the court's holding in thirty six am you know was about whether or not someone you know had entered for purposes oh i understand that so is it your position that every single person who is in every single alien who is in the united states on census day must be counted i would say that every person who is an alien in the united states under on census day is subject to the same residency requirements as anyone else who is a person inside of a state if a united states citizen is usually a resident abroad and is temporarily visiting the country on april st on census state of the family or is that in this trouble at all the rules that were it ministered by the federal marshals in the st sentence in seven hundred and ninety dollars justice alito were to ask whether or not a person who usually resides at the dwelling that's being visited if not where do they actually usually reside and if the person has no stable residence to count them simply where they're found on april st that's been the practice since the founding but i would agree i just want to be clear i would agree that person's residential circumstance to congress within seven days of the beginning of congress's term that's either on january th or th and then the clerk of the house must within fifteen days of that sensor tickets in each of the states and notifying them how many seats in  congress each state will get so we're talking about the apportionment already begins once they report this issue and so we would have to unscramble the eggs i think you have right now that simply that no counting illegal aliens because they're on documents that that is a violation of the statute and the constitution is that enough relief to you i think it is just a sort of my or because the policy that we're challenging is broader nonfinancial quick over bringing a facial challenge to it and the policy lacks a plainly legitimate sweep the vast majority of undocumented immigrants jew he doesn't send anything about if the president comes back and says just send this to me on these categories what happens if i'm the injunction prohibits merely the inclusion of information to implement the existing presidential memorandum in the secretary's one hundred and forty one dollars report for a portion that it's not a gag order on the commerce secretary there's nothing that would prohibit the commerce secretary from publishing various accounts of subcategories of wallace view of the feasibility of the match and process you know whether you had any insight into that into how the process works and maybe a part of that was a you have any insight into the question of why it is that the government knows now that it can do that matching with respect to the detainee is isn't sure it can do that match and with respect to categories of people for whom it has equally good administrative being to ascertain the number of undocumented immigrants in each state and the text of that memorandum states that the census bureau at that time this was in july of two thousand and nineteen so about a year and a half ago the census bureau had that determined based on experience that administrative records to which it already had access would enable it to determine citizenship status for approximately ninety percent of the population so we know that the bureau has a lot of experience with matching it can do it for the vast majority of the population already that's with administrative records maintained by the social security administration and other executive branch agencies they've been collecting more records for the last year and a half and as your honor noted the government has information on millions of undocumented immigrants i think when you add all of that together that's at least a substantial risk of injury because it doesn't take much to change the apportionment as justice prior noted in his opinion last year in the citizenship after him portion meant who that would be addressed to and how that would work that's something that i would appreciate more from the solicitor general on but not going to be able to ask at that point as to as to you i want to  ask you about your point though we should rule now because the memo expresses the intent to exclude non citizens who are here on lawfully to the maximum extent under law is what you said and you quoted that a couple times you also referenced i think this is important the memorandum says feasible and i think the argument is revealed as to the briefs but the argument even more clearly it's going to be very difficult it's not going to be particularly feasible to exclude all of the non citizens are going to be left with categories how to how do we think about feasibility well the government's identified three cats subcategories of undocumented immigrants which is at the at the in the last few pages of their reply brief so i assume those are the ones that the government thinks are the most feasible but each of those groups i think is overbroad those groups are heterogeneous and to exclude any of them would violate constitution one statutory commanders people detained at the border but as i mentioned a lot of people that i'm sorry to interrupt but could we could we rule to that effect now we really haven't had briefing an argument on the particular subcategories i'd agree of it to the extent the government wants to rely on saving this policy with respect you know by citing one or two purportedly valid subcategor exclude it would be better for this court to get full briefing on those categories but there's nothing that stops this court from ruling on the facial validity of this policy because it plainly lacks a legitimate sweep it applies and wanted to and then in litigation in january we would deal with the subcategories dissent how you forsee this you know if that's what the president ultimately ends up doing and issues a new memorandum i think that would be something that you know we'd have to deal with one way or another because the injunction in this case do you agree that there would be nothing wrong or there would be no legal prohibition against the president issuing a new memo articulating a new bases for excluding subcategories well the injunction in this case doesn't so preclude the president just as garrett i don't know if i would commit to there being nothing wrong or is being done while not being unlawful i think if we would have to see what the memo does if it excludes people on the basis his switching positions and articulating a new rationale for why certain categories of illegal aliens were excluded in that hypothetical just as a parent it wouldn't just be a new rationale it would be an entirely new policy with a different bridge we would have to cross later right if he said listen it's just not feasible we haven't been able to get the information and so this is why we're going to exclude those and ice detention facilities say well if the reason we simply feasibility but the basis for exclusion were that they were states with large immigrant populations and in one thousand and twenty nine dollars congress mandated apportionment on total population the plain meaning of which does not permit exclusions for immigration status while the president may have some discretion in borderline cases he does not have authority to erase millions of state residents from the apportionment based soley on unlawful immigration status as the latino justice amicus brief notes of undocumented immigrants contribute one trillion in g d p twenty billion in federal taxes rebuttal general all thank you mister chief justice so that as i think apple has responses confirmed or new live or right case now so they seem to accept to the court you just hold for a couple of weeks but as you said mister chief justice by the time we actually run the matching and have more information the secretary will be ready to send his report this is all going to happen on an extremely compressed timeline in january and i don't think credential ripeness should be used to a way to write claims that could run out the clock on the president's opportunity to send a statement to congress on the merits if the president can consider immigration status for any subset of them according to reverse the injunction below and take just three categories those and ice facilities those who committed crimes and are subject to final orders of removal and those who have overstayed visas the president could decide that it's consistent with his discretion as the memo says to exclude those categories from the apportion base and the question then is do they have an enduring tie under franklin they don't they don't have a tie we know that from kaplan and even if they do it's not enduring because they can be removed the other side's test which they haven't spent a lot of time defending today is where you live or sleep most of the time but that doesn't fit long term embassy personnel federal personnel overseas even college and boarding school students or members of congress the test isn't just where you laid your head at night it is as franklin says where you have allegiance born and during tie and there's no school here at serious political representation that says every illegal alien no matter how little time they've been here or no matter that they are imminently facing removal is a usual or settled resident it's the sovereign's prerogative to define the political community as a game says and the other side is left to say look this is just what the founders wanted but they don't have an explanation for why the founders would have wanted it and that should give us pause because whatever the founders were they were not aimless people given to purposeful structures the court should revise kate will reverse the judgment and the other judgments in the other cases allow the secretary to send his report finally to you justice kavanagh that would open up the possibility of post apportionment litigation in the event that there is an effect on apportionment for funding and is apple at least prevail in that litigation on the basis of whatever categories are excluded and they then bring as apply challenges they would be asking for the same relief as in frank when they would be asking for a declaratory judgment against the secretary of commerce to reform his section one dollars report it would not be a declaratory judgment against the president franklin doesn't allow that but utah tells us that we assume that the president will comply with the charge meant there's no reason to form a different assumption here the president would comply with the post apportionment judgment in the event that litigation ever happens again we think there is a real prospect that it will not but if it does there is time enough for that to happen when you have concrete injuries and you have a definitive decision from the president on which groups will be excluded from the apportion a base we have support of a case to reverse the judgment here and the judgments in the parallel cases thank you general the cases submitted