U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20-cv-05770-JMF

State of New York et al v. Trump et al Assigned to: Judge Jesse M. Furman Related Case: 1:18-cv-02921-JMF Cause: 05:551 Administrative Procedure Act

Date Filed: 07/24/2020 Date Terminated: 09/10/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of New York

represented by Elena Stacy Goldstein New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212-416-6201 Fax: 212-416-6030 Email: elena.goldstein@ag.ny.gov ATTORNEY TO BE NOTICED

Eric Ross Haren New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212)-416-8000 Email: eric.haren@ag.ny.gov ATTORNEY TO BE NOTICED

Fiona Jeannette Kaye NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-8036 Email: Fiona.Kaye@ag.ny.gov ATTORNEY TO BE NOTICED

Judith Naomi Vale Office of The Attorney General(NYS) 28 Liberty Street, 21st Floor

Plaintiff State of Colorado
Plaintiff State of Connecticut

New York, NY 10005 (212) 416-6274 Email: judith.vale@ag.ny.gov ATTORNEY TO BE NOTICED
Morenike Fajana NYS Office of The Attorney General 28 Liberty Street New York, NY 10005 212-416-6134 Email: morenike.fajana@ag.ny.gov ATTORNEY TO BE NOTICED
Matthew Colangelo New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212 416 6057 Fax: 212 416 6007 Email: Matthew.Colangelo@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Eric Olson Colorado Department of Law 1300 Broadway, 10th Floor Denver, CO 80203 720-508-6548 Email: eric.olson@coag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Perry Office of the Attorney General, Connecticut

Plaintiff State of Delaware
Plaintiff District of Columbia

55 Elm Street Hartford, CT 06106 860-808-5372 Email: joshua.perry@ct.gov LEAD ATTORNEY
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Vanessa L Kassab Delaware Department of Justice 820 North French Street, 6th Floor Wilmington, DE 19801 302-577-8413 Email: vanessa.kassab@delaware.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen Konopka DC Office of the Attorney General 400 6th Street, N.W. Ste 10th Floor Washington, DC 20001 202-724-6610 Email: kathleen.konopka@dc.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo

Plaintiff State of Hawaii
Plaintiff State of Illinois
Plaintiff State of Maryland

(See above for address) ATTORNEY TO BE NOTICED
represented by Nicholas Matthew McLean Department of the Attorney General, State of Hawaii 425 Queen Street Honolulu, HI 96813 646-469-0164 Email: nicholas.mclean@hawaii.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey VanDam Illinois Attorney General's Office 100 West Randolph Street Ste 11th Floor Chicago, IL 60201 312-814-1188 Email: jvandam@atg.state.il.us ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Commonwealth of Massachusetts
Plaintiff State of Michigan

represented by Ann E. Lynch Massachusetts Attorney General's Office (Springfield) 1441 Main Street, 12th Floor Springfield, MA 01103 (413)-523-7710 Fax: (413)-523-7765 Email: ann.lynch@state.ma.us ATTORNEY TO BE NOTICED
Miranda M. Cover Massachusetts Attorney General's Office 1 Ashburton Place Boston Boston, MA 02108 617-963-2986 Email: mercy.cover@mass.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Marie Jackson Michigan Department of Attorney General State Operations Division P.O. Box 30754 Lansing, MI 48909 517-335-7573 Fax: 517-335-7578 Email: jacksonj5@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Minnesota
Plaintiff State of Nevada
Plaintiff State of New Jersey

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Jacob Campion Office of The Minnesota Attorney General 1100 Bremer Tower, 445 Minnesota St. St. Paul, MN 55101 (651)-757-1459 Email: jacob.campion@ag.state.mn.us ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Heidi Parry Stern Nevada Attorney General 555 E. Washington Ave. Ste 3900 Las Vegas, NV 89101 702-486-3594 Fax: 702-486-3773 Email: hstern@ag.nv.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Marie Soueid Office of the New Jersey Attorney General

Plaintiff State of New Mexico
Plaintiff State of North Carolina
Plaintiff State of Oregon

25 Market Street PO Box 112 Trenton, NJ 08625 609-376-2564 Email: marie.soueid@law.njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Tania Maestas Nm Office of The Attorney General P.O. Drawer 1508 Santa Fe, NM 87504 505 490-4048 Fax: 505 490-4883 Email: tmaestas@nmag.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Alexander de Haan Allen & Overy, LLP 1221 Avenue of the Americas

Plaintiff Commonwealth of Pennsylvania
Plaintiff State of Rhode Island
Plaintiff State of Vermont

New York, NY 10020 (212) 756-1196 x1996 Fax: (212) 610-6399 Email: brian.dehaan@allenovery.com ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Aimee D. Thomson PA Office of the Attorney General 1600 Arch Street Suite 300 Philadelphia, PA 19103 267-940-6696 Email: athomson@attorneygeneral.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Daniel Battles Office of the Attorney General 109 State Street Montpelier, VT 05609

Plaintiff Commonwealth of Virginia
Plaintiff State of Washington
Plaintiff City of Central Falls

802-828-5500 Email: benjamin.battles@vermont.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Laura Kristine Clinton Washington State Attorney General 800 5th Avenue Ste 2000 Seattle, WA 98104 206-233-3383 Email: laura.clinton@atg.wa.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew Timothy Jerzyk City of Central Falls 580 Broad Street, 2nd Floor Central Falls, RI 02863 (401)-727-7490 Fax: (401)-727-7422

Plaintiff City of Chicago
Plaintiff City of Columbus

Email: matt@jerzyklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Hirsch City of Chicago 121 N. Lasalle Room 600 Chicago, IL 60602 312-744-8143 Email: rebecca.hirsch2@cityofchicago.org ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Lara Baker-Morrish City Attorney's Office 77 North Front Street, 4th Floor Columbus, OH 43215 (614)-645-7388 Fax: (614)-645-6949 Email: lnbaker@columbus.gov ATTORNEY TO BE NOTICED
Richard Coglianese City Attorney's Office 77 North Front Street, 4th Floor Columbus, OH 43215 (614)-645-0818 Fax: (614)-645-6949

Plaintiff City of New York
Plaintiff City of Philadelphia

Email: rncoglianese@columbus.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Michael Bloom New York City Law Department 100 Church St. New York, NY 10007 (212) 788-0969 Fax: (212) 788-1633 Email: abloom@law.nyc.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Wu-Kung Pfautz City of Philadelphia Law Department 1515 Arch Street Philadelphia, PA 19102 (215) 583-5233 Fax: (215) 683-5299 Email: michael.pfautz@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo

Plaintiff City of Phoenix
Plaintiff City of Pittsburgh
Plaintiff City of Providence
Plaintiff City and County of San Francisco

(See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Herrera San Francisco City Attorney's Office City Hall, Room 234, 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415-554-4748 Email: brittany.feitelberg@sfcityatty.org ATTORNEY TO BE NOTICED
Erin Lee Kuka San Francisco City Attorney's Office 1390 Market Street, 7th Floor San Francisco, CA 94102 (415)-554-4229 Email: erin.kuka@sfcityatty.org

Plaintiff City of Seattle
Plaintiff County of Cameron
Plaintiff County of El Paso
Plaintiff

ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Ian R. Kaplan El Paso County Attorney's Office 500 E. San Antonio Ave, Room 503 El Paso, TX 79901 (915)-422-8504 Email: ian.kaplan@epcounty.com ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED

County of Hidalgo
Plaintiff County of Monterey
Plaintiff United States Conference of Mayors
Plaintiff State of Maine

represented by Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by William Merrill Litt County of Monterey 168 West Alisal Street, 3rd Floor Salinas, CA 93901 (831)-755-5045 Fax: (831)-755-5283 Email: littwm@co.monterey.ca.us ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by John Daniel Reaves , I John Daniel Reaves, Attorney 1750 K Street, N.W. 11th Floor Washington, DC 20006 202-285-7482 Fax: 202-887-1102 Email: jdreaves@usa.net ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Susan P. Herman Office of The Attorney General(ME) 6 State House Station Augusta, ME 04333 207-626-8814

Plaintiff State of Wisconsin
Plaintiff Howard County
V. Consolidated Plaintiff New York Immigration Coalition

Fax: 207-287-3145 Email: susan.herman@maine.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Steven Carl Kilpatrick Wisconsin Department of Justice 17 West Main Street Madison, WI 53707 608-266-1792 Fax: 608-267-2223 Email: kilpatricksc@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Tsega Girma Howard County Office of Law 3450 Court House Drive Ellicott City, MD 21043 410-313-3078 Fax: 410-313-3292 Email: tgirma@howardcountymd.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel Ivan Cepeda Derieux Wilmer Cutler Pickering Hale & Dorr LLP (NYC) 7 World Trade Center New York, NY 10007 (212) 295-6303

Email: acepedaderieux@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho American Civil Liberties Union Foundation (DC) 915 15th Street Washington, DC 20005 202-549-2693 Fax: 202-549-2654 Email: dho@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Davin Mckay Rosborough American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 212-549-2613 Email: drosborough@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman Arnold & Porter Kaye Scholer LLP (DC) 601 Massachusetts Avenue NW Washington, DC 20001 (202)-942-5316 Fax: (202)-942-5999 Email: john_freedman@aporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Topaz American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 212-549-2640 Email: jtopaz@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Perry Grossman New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212) 607-3300 Fax: (212) 607-3318 Email: pgrossman@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Brannon American Civil Liberties Union Foundation (DC) 915 15th Street Washington, DC 20005 (202)-675-2337 Email: sbrannon@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Chase Raines Arnold & Porter (DC) 601 Massachusetts Avenue, N.W. Washington, DC 20001 (202)-942-5917 Email: chase.raines@arnoldporter.com ATTORNEY TO BE NOTICED
Daniel F Jacobson Arnold & Porter Kaye Scholer LLP (DC) 601 Massachusetts Avenue NW Washington, DC 20001 (202)-942-5602 Email: daniel.jacobson@apks.com ATTORNEY TO BE NOTICED
Edgar Saldivar ACLU of Texas Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713-942-8146

Consolidated Plaintiff CASA

Email: esaldivar@aclutx.org ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez ACLU of Southern California 1313 W 8th Street Suite 200 Los Angeles, CA 90017 213-977-5258 Email: jgomez@aclusocal.org ATTORNEY TO BE NOTICED
Peter Eliasberg Aclu 1313 West 8th Street Los Angeles, CA 90017 213-977-5228 Email: peliasberg@aclusocal.org ATTORNEY TO BE NOTICED
Robert Stanton Jones Arnold & Porter (DC) 601 Massachusetts Avenue, N.W. Washington, DC 20001 (202)-942-5563 Email: stanton.jones@arnoldporter.com ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy American Civil Liberties Union American Civil Liberties Union 5225 Katy Freeway Suite 350 Houston, TX 77007 713-942-8146 Email: tbuser-clancy@aclutx.org ATTORNEY TO BE NOTICED
represented by Adriel Ivan Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho

Consolidated Plaintiff
American-Arab AntiDiscrimination Committee

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Davin Mckay Rosborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Topaz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Perry Grossman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Brannon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy (See above for address) ATTORNEY TO BE NOTICED
represented by Adriel Ivan Cepeda Derieux (See above for address) LEAD ATTORNEY

Consolidated Plaintiff

ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Davin Mckay Rosborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Topaz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Perry Grossman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Brannon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy (See above for address) ATTORNEY TO BE NOTICED

ADC Research Institute

represented by Adriel Ivan Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Davin Mckay Rosborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Topaz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Perry Grossman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Brannon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy

Consolidated Plaintiff Make the Road New York, Casa

(See above for address) ATTORNEY TO BE NOTICED
represented by Adriel Ivan Cepeda Derieux (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Davin Mckay Rosborough (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Topaz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Perry Grossman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Brannon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez (See above for address)

Consolidated Plaintiff FIEL Houston Inc
V. Defendant Donald J. Trump in his official capacity as President of the United States

ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy (See above for address) ATTORNEY TO BE NOTICED
represented by John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Perry Grossman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edgar Saldivar (See above for address) ATTORNEY TO BE NOTICED
Julia Alejandra Gomez Hernandez (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Buser-Clancy (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Rovner United States Attorney's Office SDNY 86 Chambers St. New York, NY 10007 (212)-637-2691 Fax: (212)-637-2750 Email: Allison.Rovner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott Marc Davis DOJ-Civ 1100 L St. NW

Defendant
United States Department of Commerce

Washington, DC 20005 202-353-5639 Email: elliott.m.davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler U.S. Department of Justice Federal Programs Branch, 950 Pennsylvania Ave, Nw, Room 6141 Washington, DC 20530 (202)-616-0773 Email: dan.mauler@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212-637-2200 Fax: 212-637-2730 Email: Jeffrey.Oestericher@usdoj.gov ATTORNEY TO BE NOTICED
Sopan Joshi DOJ-Osg 950 Pennsylvania Ave, NW Washington, DC 20530 202-514-3344 Email: sopan.joshi@usdoj.gov ATTORNEY TO BE NOTICED
represented by Allison Rovner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott Marc Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address)

Defendant Wilbur L. Ross Jr. in his official capacity as Secretary of Commerce
Defendant Bureau of the Census

ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Sopan Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Rovner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott Marc Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Sopan Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Rovner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott Marc Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address)

Defendant Steven Dillingham in his official capacity as Director of the United States Census Bureau
Amicus Brian Schatz
Amicus Attorney General Richard Blumenthal

ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Sopan Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by Allison Rovner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott Marc Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Sopan Joshi (See above for address) ATTORNEY TO BE NOTICED
represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw, Suite 501 Washington, DC 20036 202-296-6889 x307 Fax: (202)-296-6985 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address)

Amicus Sherrod Brown
Amicus Martin Heinrich
Amicus Mazie K. Hirono
Amicus Jeffrey A. Merkley
Amicus Elizabeth Warren
Amicus Ron L. Wyden
Amicus Margo Anderson

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W Clary Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: rclary@cravath.com

Amicus Andrew Beveridge
Amicus Rachel Buff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Fax: (212) 474-3700 Email: aryan@cravath.com ATTORNEY TO BE NOTICED
Helam Gebremariam Cravath, Swaine & Moore LLP Worldwide Plaza, 825 Eighth Avenue New York, NY 10019 (212)-474-1280 Fax: (212) 474-3700 Email: hgebremariam@cravath.com ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam

Amicus Libby Garland
Amicus J. Morgan Kousser
Amicus Erika Lee

(See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Blaine I. Green Pillsbury Winthrop Shaw Pittman LLP (SF2) Four Embarcadero Center, 22nd Floor San Francisco, CA 94111 415-983-1476

Amicus Natalie Molina
Amicus Steven Ruggles
Amicus 16 Businesses and Business Organizations

Fax: 415-983-1200 Email: blaine.green@pillsburylaw.com ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Richard W Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony L Ryan (See above for address) ATTORNEY TO BE NOTICED
Helam Gebremariam (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell Gibson, Dunn & Crutcher, LLP 200 Park Avenue 47th, Floor New York, NY 10166 212-351-5391 Fax: (212)-351-5328 Email: ASouthwell@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus U.S. House of Representatives
Amicus U.S. House of Representatives Amicus The League of Women Voters of the United States

Joshua Morgan Wesneski Gibson, Dunn & Crutcher LLP 1050 Connecticut Ave, N.W. Washington, DC 20036 202-887-3598 Fax: 202-831-6022 Email: jwesneski@gibsondunn.com ATTORNEY TO BE NOTICED
Lee Ross Crain Gibson, Dunn & Crutcher, LLP (NY) 200 Park Avenue New York, NY 10166 212-351-4000 Email: lcrain@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Douglas Neal Letter U.S. House of Representatives 219 Cannon HOB Washington, DC 20515 202-225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashleigh K Acevedo Pillsbury Winthrop Shaw Pittman LLP Two Houston Center 909 Fannin Suite 2000 Houston, TX 77010 713-276-7631 Email: ashleigh.acevedo@pillsburylaw.com ATTORNEY TO BE NOTICED
Blaine I. Green (See above for address) ATTORNEY TO BE NOTICED

Amicus
The League of Women Voters of Texas

Dustin Chase-Woods Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francsico, CA 94111 415-983-1213 Fax: 415-983-1200 Email: dustin.chasewoods@pillsburylaw.com ATTORNEY TO BE NOTICED
Jennifer G. Altman Boies, Schiller & Flexner, LLP 100 Southeast 2nd Street, Suite 2800 Miami, FL 33131 (305)-357-8410 Email: jaltman@bsfllp.com ATTORNEY TO BE NOTICED
Robert L. Sills Pillsbury Winthrop Shaw Pittman LLP 31 West 52nd Street New York, NY 10019 212-858-1000 Email: robert.sills@pillsburylaw.com ATTORNEY TO BE NOTICED
Shani Rivaux Pillsbury Winthrop Shaw Pittman LLP 600 Brickell Avenue, Suite 3100 Miami, FL 33131 786-913-4900 Fax: 786-913-4901 Email: shani.rivaux@pillsburylaw.com ATTORNEY TO BE NOTICED
represented by Ashleigh K Acevedo (See above for address) ATTORNEY TO BE NOTICED
Blaine I. Green

Amicus The League of Women Voters of Florida
Amicus

(See above for address) ATTORNEY TO BE NOTICED
Dustin Chase-Woods (See above for address) ATTORNEY TO BE NOTICED
Jennifer G. Altman (See above for address) ATTORNEY TO BE NOTICED
Robert L. Sills (See above for address) ATTORNEY TO BE NOTICED
Shani Rivaux (See above for address) ATTORNEY TO BE NOTICED
represented by Ashleigh K Acevedo (See above for address) ATTORNEY TO BE NOTICED
Blaine I. Green (See above for address) ATTORNEY TO BE NOTICED
Dustin Chase-Woods (See above for address) ATTORNEY TO BE NOTICED
Jennifer G. Altman (See above for address) ATTORNEY TO BE NOTICED
Robert L. Sills (See above for address) ATTORNEY TO BE NOTICED
Shani Rivaux (See above for address) ATTORNEY TO BE NOTICED

The League of Women Voters of California
Amicus Immigration Reform Law Institute

represented by Ashleigh K Acevedo (See above for address) ATTORNEY TO BE NOTICED
Blaine I. Green (See above for address) ATTORNEY TO BE NOTICED
Dustin Chase-Woods (See above for address) ATTORNEY TO BE NOTICED
Jennifer G. Altman (See above for address) ATTORNEY TO BE NOTICED
Robert L. Sills (See above for address) ATTORNEY TO BE NOTICED
Shani Rivaux (See above for address) ATTORNEY TO BE NOTICED
represented by Gina D'Andrea Immigration Reform Law Institute 25 Massachusetts Ave Ste 330 Washington, DC 20001 202-864-5465 Email: gdandrea@irli.org ATTORNEY TO BE NOTICED

Date Filed 07/24/2020

# Docket Text

COMPLAINT against Bureau of the Census, Steven Dillingham,

1

Wilbur L. Ross Jr., Donald J. Trump, United States Department of

Commerce. (Filing Fee $ 400.00, Receipt Number ANYSDC-

20838691)Document filed by County of El Paso, County of

Cameron, State of Washington, State of Illinois, City of

Philadelphia, State of Colorado, Commonwealth of Pennsylvania,

State of New York, State of Rhode Island, City and County of San

Francisco, State of Oregon, City of New York, City of Phoenix, City

of Pittsburgh, State of New Mexico, Commonwealth of Virginia,

City of Columbus, State of Michigan, City of Seattle, County of

07/24/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020 07/24/2020
07/24/2020
07/24/2020

Monterey, State of Minnesota, City of Central Falls, City of Chicago, State of New Jersey, City of Providence, State of Hawaii, State of Connecticut, Commonwealth of Massachusetts, State of Nevada, State of North Carolina, State of Maryland, State of Delaware, County of Hidalgo, State of Vermont, District of

Columbia. (Attachments: # 1 Exhibit 1 (Presidential Memorandum of July 21, 2020)).(Colangelo, Matthew) (Entered: 07/24/2020)

2 NOTICE OF APPEARANCE by Elena Stacy Goldstein on behalf of State of New York..(Goldstein, Elena) (Entered: 07/24/2020)

3 CIVIL COVER SHEET filed..(Goldstein, Elena) (Entered: 07/24/2020)

STATEMENT OF RELATEDNESS re: that this action be filed as

4

related to 18-cv-2921 (JMF). Document filed by State of New

York..(Goldstein, Elena) (Entered: 07/24/2020)

NOTICE OF APPEARANCE by Nicholas Matthew McLean on

5

behalf of State of Hawaii..(McLean, Nicholas) (Entered: 07/24/2020)

6 REQUEST FOR ISSUANCE OF SUMMONS as to Bureau of the

Census, re: 1 Complaint,,,,. Document filed by State of New York..(Colangelo, Matthew) (Entered: 07/24/2020)
7 REQUEST FOR ISSUANCE OF SUMMONS as to United States

Department of Commerce, re: 1 Complaint,,,,. Document filed by State of New York..(Colangelo, Matthew) (Entered: 07/24/2020)
8 REQUEST FOR ISSUANCE OF SUMMONS as to Steven Dillingham, in his official capacity as Director of the United States

Census Bureau, re: 1 Complaint,,,,. Document filed by State of New York..(Colangelo, Matthew) (Entered: 07/24/2020)
9 REQUEST FOR ISSUANCE OF SUMMONS as to Wilbur L. Ross Jr., in his official capacity as Secretary of Commerce, re: 1

Complaint,,,,. Document filed by State of New York..(Colangelo, Matthew) (Entered: 07/24/2020)
10 REQUEST FOR ISSUANCE OF SUMMONS as to Donald J. Trump, in his official capacity as President of the United States, re: 1

Complaint,,,,. Document filed by State of New York..(Colangelo, Matthew) (Entered: 07/24/2020)

07/27/2020 07/27/2020
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07/27/2020

11 NOTICE OF APPEARANCE by Michael Wu-Kung Pfautz on behalf of City of Philadelphia..(Pfautz, Michael) (Entered: 07/27/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Matthew Colangelo. The party information for the following party/parties has been modified: County of El Paso, County of Cameron, State of Washington, State of Illinois, City of Philadelphia, State of Colorado, Commonwealth of Pennsylvania, State of New York, State of Rhode Island, City and County of San Francisco, State of Oregon, City of New York, City of Phoenix, City of Pittsburgh, State of New Mexico, Commonwealth of Virginia, City of Columbus, State of Michigan, City of Seattle, County of Monterey, State of Minnesota, City of Central Falls, City of Chicago, State of New Jersey, City of Providence, State of Hawaii, State of Connecticut, Commonwealth of Massachusetts, State of Nevada, State of North Carolina, State of Maryland, State of Delaware, County of Hidalgo, State of Vermont, District of Columbia,Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. The information for the party/parties has been modified for the following reason/reasons: party text was removed; do not include party names as party text. (pc) (Entered: 07/27/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Unassigned. .(pc) (Entered: 07/27/2020)
Case Designated ECF. (pc) (Entered: 07/27/2020)
CASE REFERRED TO Judge Jesse M. Furman as possibly related to 18cv2921. (pc) (Entered: 07/27/2020)
12 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Dennis J. Herrera to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20863647. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City and County of San Francisco. (Attachments: # 1 Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order).(Herrera, Dennis) Modified on 7/27/2020 (vba). (Entered: 07/27/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 12 MOTION for Dennis J. Herrera to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20863647. Motion and supporting papers to be reviewed by Clerk's Office staff...

07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020 07/27/2020
07/27/2020
07/27/2020 07/27/2020

The filing is deficient for the following reason(s): AFFIDAVIT IS NOT NOTARIZED;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 07/27/2020)

13 ELECTRONIC SUMMONS ISSUED as to Bureau of the Census..(pc) (Entered: 07/27/2020)

14 ELECTRONIC SUMMONS ISSUED as to Donald J. Trump..(pc) (Entered: 07/27/2020)

15 ELECTRONIC SUMMONS ISSUED as to United States Department of Commerce..(pc) (Entered: 07/27/2020)

16 ELECTRONIC SUMMONS ISSUED as to Steven Dillingham..(pc) (Entered: 07/27/2020)

17 ELECTRONIC SUMMONS ISSUED as to Wilbur L. Ross Jr...(pc) (Entered: 07/27/2020)

CASE ACCEPTED AS RELATED. Create association to 1:18-cv02921-JMF. Notice of Assignment to follow. (wb) (Entered: 07/27/2020)

NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Unassigned is no longer assigned to the case..(wb) (Entered: 07/27/2020)

Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (wb) (Entered: 07/27/2020)

CONSENT LETTER MOTION for Leave to File motion to permit

18

service of the summons and complaint by email addressed to Judge

Jesse M. Furman from Matthew Colangelo dated July 27, 2020.

Document filed by State of New York..(Colangelo, Matthew)

(Entered: 07/27/2020)

19 NOTICE OF APPEARANCE by Marie Soueid on behalf of State of New Jersey..(Soueid, Marie) (Entered: 07/27/2020)

20 ORDER granting, on consent, 18 Letter Motion for Leave to Serve Summons and Complaint by Email. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 07/27/2020)

07/27/2020
07/28/2020 07/28/2020 07/28/2020
07/28/2020 07/28/2020 07/28/2020 07/28/2020
07/28/2020

AFFIDAVIT OF SERVICE. Bureau of the Census served on

21

7/27/2020, answer due 9/25/2020; Steven Dillingham served on

7/27/2020, answer due 9/25/2020; Wilbur L. Ross Jr. served on

7/27/2020, answer due 9/25/2020; Donald J. Trump served on

7/27/2020, answer due 9/25/2020; United States Department of

Commerce served on 7/27/2020, answer due 9/25/2020. Document

filed by State of New York..(Colangelo, Matthew) (Entered:

07/27/2020)

22 NOTICE OF APPEARANCE by Joshua Perry on behalf of State of Connecticut..(Perry, Joshua) (Entered: 07/28/2020)

23 NOTICE OF APPEARANCE by Aimee D. Thomson on behalf of Commonwealth of Pennsylvania..(Thomson, Aimee) (Entered: 07/28/2020)

ORDER: Yesterday, the S.D.N.Y. Assignment Committee

24

determined that, pursuant to Rule 13 of the S.D.N.Y. Rules for the

Division of Business Among District Judges, these two cases should

be assigned to the undersigned as related to State of New York v.

U.S. Department of Commerce, 18-CV-2921 (JMF).... Given the

time sensitivities involved with the issues in this case, and the

inability to safely convene for an in-person conference in light of the

COVID-19 pandemic, the Court will hold an initial pretrial

conference with all parties by telephone on Thursday, August 13,

2020, at 2:15 p.m.... (See ORDER.) (Signed by Judge Jesse M.

Furman on 7/28/2020) (ab) (Entered: 07/28/2020)

25 NOTICE OF APPEARANCE by Matthew Timothy Jerzyk on behalf of City of Central Falls..(Jerzyk, Matthew) (Entered: 07/28/2020)

26 NOTICE OF APPEARANCE by Benjamin Daniel Battles on behalf of State of Vermont..(Battles, Benjamin) (Entered: 07/28/2020)

LETTER addressed to Judge Jesse M. Furman from Matthew

27

Colangelo dated July 28, 2020 re: proof of service to Defendants'

counsel of the Court's July 28, 2020 Order. Document filed by State

of New York. (Attachments: # 1 Exhibit 1).(Colangelo, Matthew)

(Entered: 07/28/2020)

28 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Jacob Campion to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20888526. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Minnesota. (Attachments: # 1 Affidavit, # 2 Exhibit Good Standing).(Campion, Jacob) Modified on 7/28/2020 (vba). (Entered: 07/28/2020)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document

07/28/2020 07/31/2020 07/31/2020 07/31/2020
07/31/2020 08/03/2020

No. 28 MOTION for Jacob Campion to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20888526. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Proposed Order; AFFIDAVIT NOT NOTARIZED;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 07/28/2020)

29 NOTICE OF APPEARANCE by Aaron Michael Bloom on behalf of City of New York..(Bloom, Aaron) (Entered: 07/28/2020)

30 NOTICE OF APPEARANCE by Fiona Jeannette Kaye on behalf of State of New York..(Kaye, Fiona) (Entered: 07/31/2020)

LETTER addressed to Judge Jesse M. Furman from Matthew

31

Colangelo dated July 31, 2020 re: Plaintiffs' joint notice regarding

intent to seek relief. Document filed by State of New

York..(Colangelo, Matthew) (Entered: 07/31/2020)

ORDER: In light of Plaintiffs' joint letter of earlier today, see 20-

32

CV-5770 (JMF), ECF No. 31, the initial pretrial conference in these

cases which will be held remotely by telephone is RESCHEDULED

for Wednesday, August 5, 2020, at 9:30 a.m. The deadline for the

parties' joint letter required by the Court's Order of July 28, 2020,

see 20-CV-5770 (JMF), ECF No. 24, is MOVED to Monday, August

3, 2020, at 5:00 p.m... Members of the public and any counsel who

will not have a speaking role during the conference may access the

conference by calling 888-363-4749 and using access code

5421540#. That line will be on listen-only mode that is, all callers

will be muted. (See ORDER.) (Signed by Judge Jesse M. Furman on

7/31/2020) (ab) (Entered: 07/31/2020)

33 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Matthew T. Jerzyk to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Central Falls. (Attachments: # 1 Text of Proposed Order).(Jerzyk, Matthew) Modified on 8/3/2020 (bcu). (Entered: 07/31/2020)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE re: Document No. 33 MOTION for Matthew T. Jerzyk to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): the filing fee was not paid; Attorney Affidavit not notarized. PLease rsubmit and make sure your affidavit is notarized.;. Refile the motion as a Corrected Motion to Appear Pro Hac Vice -

08/03/2020
08/03/2020 08/03/2020 08/03/2020 08/03/2020 08/03/2020

attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order. Pay the filing fee using the event Pro Hac Vice Fee Payment found under the event list Other Documents. (bcu) (Entered: 08/03/2020)

34

AMENDED COMPLAINT amending 1 Complaint,,,, against

Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr.,

Donald J. Trump, United States Department of

Commerce.Document filed by County of El Paso, County of

Cameron, State of Washington, State of Illinois, City of

Philadelphia, State of Colorado, Commonwealth of Pennsylvania,

State of New York, State of Rhode Island, City and County of San

Francisco, State of Oregon, City of New York, City of Phoenix, City

of Pittsburgh, State of New Mexico, Commonwealth of Virginia,

City of Columbus, State of Michigan, City of Seattle, County of

Monterey, State of Minnesota, City of Central Falls, City of

Chicago, State of New Jersey, City of Providence, State of Hawaii,

State of Connecticut, Commonwealth of Massachusetts, State of

Nevada, State of North Carolina, State of Maryland, State of

Delaware, County of Hidalgo, State of Vermont, District of

Columbia, United States Conference of Mayors, State of Maine,

State of Wisconsin, Howard County. Related document: 1

Complaint,,,,. (Attachments: # 1 Exhibit 1 (Presidential Memorandum)).(Goldstein, Elena) (Entered: 08/03/2020)

35 NOTICE OF APPEARANCE by Morenike Fajana on behalf of State of New York..(Fajana, Morenike) (Entered: 08/03/2020)

36 NOTICE OF APPEARANCE by Allison Rovner on behalf of Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Rovner, Allison) (Entered: 08/03/2020)

LETTER addressed to Judge Jesse M. Furman from AUSA Allison

37

Rovner dated August 3, 2020 re: joint submission for initial

conference. Document filed by Bureau of the Census, Steven

Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States

Department of Commerce..(Rovner, Allison) (Entered: 08/03/2020)

38 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Oestericher, Jeffrey) (Entered: 08/03/2020)

39 NOTICE OF APPEARANCE by Heidi Parry Stern on behalf of State of Nevada..(Stern, Heidi) (Entered: 08/03/2020)

08/04/2020 08/04/2020 08/04/2020
08/04/2020 08/04/2020 08/04/2020

40 AMENDED MOTION for Jacob Campion to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Minnesota. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order).(Campion, Jacob) (Entered: 08/04/2020)

41 MOTION for Vanessa L. Kassab to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20988981. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Delaware..(Kassab, Vanessa) (Entered: 08/04/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 40 AMENDED MOTION for Jacob Campion to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff., 41 MOTION for Vanessa L. Kassab to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20988981. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/04/2020)

42 MOTION for Jeffrey VanDam to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20990169. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Illinois. (Attachments: # 1 Affidavit in Support of Motion for Admission for Pro Hac Vice, # 2 Exhibit 1 - Certificate of Good Standing, # 3 Text of Proposed Order for Admission Pro Hac Vice).(VanDam, Jeffrey) (Entered: 08/04/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 42 MOTION for Jeffrey VanDam to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20990169. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/04/2020)

ORDER re: (42 in 1:20-cv-05781-JMF) Letter, filed by Wilbur L.

43

Ross, Jr., United States Department of Commerce, Bureau of the

Census, Donald J. Trump, Steven Dillingham, (37 in 1:20-cv-05770-

JMF) Letter, filed by United States Department of Commerce,

Bureau of the Census, Wilbur L. Ross Jr., Steven Dillingham,

Donald J. Trump. In their joint later dated August 3, 2020, the

parties state that they agree that 20 Civ. 5770 and 20 Civ. 5781

should be consolidated pursuant to Fed. R. Civ. P. 42(a)(2). 20-CV-

5770, ECF No. 37, at 1; 20-CV-5781, ECF No. 42, at 1. In light of

that, and because the actions involve common questions of law and

08/04/2020 08/04/2020 08/04/2020 08/04/2020

fact, it is hereby ORDERED that, pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure, the two cases are consolidated under the case number 20-CV-5770 (JMF). The Clerk of Court is directed to consolidate 20- CV-5770 (JMF) and 20-CV-5781 (JMF) under case number 20-CV-5770 (JMF), and to close 20-CV-5781 (JMF). All future filings should be in 20-CV-5770 (JMF) alone. (Signed by Judge Jesse M. Furman on 8/4/2020) Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF (nb) (Entered: 08/04/2020)
44 MOTION for Matthew T. Jerzyk to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20992824. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Central Falls. (Attachments: # 1 Text of Proposed Order).(Jerzyk, Matthew) (Entered: 08/04/2020)
45 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Jennifer M. Jackson to Appear Pro Hac Vice for State of Michigan. Filing fee $ 200.00, receipt number ANYSDC20992753. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Michigan. (Attachments: # 1 Affidavit Affidavit in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order).(Jackson, Jennifer) Modified on 8/4/2020 (bcu). (Entered: 08/04/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 44 MOTION for Matthew T. Jerzyk to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20992824. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/04/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 45 MOTION for Jennifer M. Jackson to Appear Pro Hac Vice for State of Michigan. Filing fee $ 200.00, receipt number ANYSDC-20992753. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Michigan. We do not accept certificates from a state bar registration coming from this state.;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (bcu) (Entered: 08/04/2020)

08/04/2020 08/04/2020
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46 NOTICE OF APPEARANCE by Brian Alexander de Haan on behalf of State of Oregon..(de Haan, Brian) (Entered: 08/04/2020)
47 MOTION for Erin L. Kuka to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20993659. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City and County of San Francisco. (Attachments: # 1 DECLARATION OF ERIN L. KUKA IN SUPPORT OF MOTION TO ADMIT COUNSEL PRO HAC VICE, # 2 Exhibit Ceritficat of Good Standing - CA, # 3 Exhibit Certificate of Good Standing - HI, # 4 Text of Proposed Order).(Kuka, Erin) (Entered: 08/04/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 47 MOTION for Erin L. Kuka to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20993659. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/04/2020)
48 ORDER granting 40 Motion for Jacob Campion to Appear Pro Hac Vice; granting 41 Motion for Vanessa L. Kassab to Appear Pro Hac Vice; granting 42 Motion for Jeffrey VanDam to Appear Pro Hac Vice; granting 44 Motion for Matthew T. Jerzyk to Appear Pro Hac Vice; granting 47 Motion for Erin L. Kuka to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/04/2020)
49 MOTION for Laura K. Clinton to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Washington. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order, # 3 Supplement Certificate of Good Standing).(Clinton, Laura) (Entered: 08/04/2020)
50 NOTICE OF APPEARANCE by Ian R. Kaplan on behalf of County of El Paso..(Kaplan, Ian) (Entered: 08/05/2020)
51 MOTION for Dennis J. Herrera to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City and County of San Francisco. (Attachments: # 1 Declaration of Dennis J. Herrera in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order).(Herrera, Dennis) (Entered: 08/05/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 51 MOTION for Dennis J. Herrera to Appear Pro Hac Vice . Motion and supporting papers to be

08/05/2020 08/05/2020 08/05/2020
08/05/2020

reviewed by Clerk's Office staff., 49 MOTION for Laura K. Clinton to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/05/2020)

Minute Entry for proceedings held before Judge Jesse M. Furman: Initial Pretrial Conference held via teleconference on 8/5/2020. Matthew Colangelo (Liaison Counsel), Elena Goldstein (for State of N.Y.), Dale Ho (for N.Y.I.C.) present for Plaintiffs. Allison Rovner (Liaison Counsel) and Jeffrey Oestericher present for Defendants. Court reporter present. -- See transcript. Associated Cases: 1:20-cv05770-JMF, 1:20-cv-05781-JMF (ab) (Entered: 08/05/2020)

52 ORDER granting 49 Motion for Laura K. Clinton to Appear Pro Hac Vice; granting 51 Motion for Dennis J. Herrera to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/05/2020)

ORDER, As stated on the record during today's telephone

53

conference, the Court adopts the following deadlines: No later than

today, August 5, 2020, (1) the NYIC Plaintiffs shall file an amended

complaint and (2) Plaintiffs shall file a request for a panel of three

judges pursuant to 28 U.S.C. § 2284. No later August 6, 2020,

Defendants shall file a letter with the Court indicating their position

on the request for a three-judge panel. No later than August 7, 2020,

Plaintiffs shall file their motion for summary judgment, or in the

alternative, for a preliminary injunction. Their memorandum of law

may not exceed fifty-five pages. No later than August 17, 2020,

Defendants shall file their combined opposition to Plaintiffs'

motion(s) and their cross-motion to dismiss. Their memorandum of

law may not exceed fifty-five pages. No later than August 24, 2020,

Plaintiffs shall file a combined reply in support of their motion(s)

and opposition to Defendants' cross-motion. Their memorandum of

law may not exceed thirty pages. No later than August 27, 2020,

Defendants shall file any reply in support of their cross-motion,

which may not exceed ten pages. SO ORDERED. ( Amended

Pleadings due by 8/5/2020., Cross Motions due by 8/17/2020.,

Motions due by 8/7/2020., Responses due by 8/24/2020, Replies due

by 8/27/2020.) (Signed by Judge Jesse M. Furman on 8/5/20) (yv)

(Entered: 08/05/2020)

54 MOTION for Steven C. Kilpatrick to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015127. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Wisconsin. (Attachments: # 1 Affidavit Affidavit of Steven C. Kilpatrick In Support of Motion for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good

08/05/2020 08/05/2020 08/05/2020 08/05/2020
08/05/2020

Standing, # 3 Text of Proposed Order Text of Proposed Order).(Kilpatrick, Steven) (Entered: 08/05/2020)

55 MOTION for ERIC R. OLSON to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015172. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Colorado. Return Date set for 8/5/2020 at 05:00 PM. (Attachments: # 1 Affidavit Affidavit for Admission Pro Hac Vice, # 2 Certificate of Good Standing, # 3 Proposed Order for Admission Pro Hac Vice).(Olson, Eric) (Entered: 08/05/2020)

56 MOTION for William M. Litt to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015224. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by County of Monterey. (Attachments: # 1 Exhibit Declaration of William M. Litt, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order).(Litt, William) (Entered: 08/05/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 54 MOTION for Steven C. Kilpatrick to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015127. Motion and supporting papers to be reviewed by Clerk's Office staff., 55 MOTION for ERIC R. OLSON to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015172. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/05/2020)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 56 MOTION for William M. Litt to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21015224. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (wb) (Entered: 08/05/2020)

FILING ERROR - DEFICIENT PLEADING - FILED

57

AGAINST PARTY ERROR - FIRST AMENDED COMPLAINT

amending 1 Complaint against American-Arab AntiDiscrimination Committee, Make the Road New York, Casa, CASA,

08/05/2020 08/06/2020 08/06/2020 08/06/2020
08/06/2020 08/06/2020

ADC Research Institute, New York Immigration Coalition.Document filed by American-Arab Anti-Discrimination Committee, Make the Road New York, Casa, CASA, ADC Research Institute, New York Immigration Coalition. Related document: 1

Complaint.(Ho, Dale) Modified on 8/6/2020 (sj). (Entered: 08/05/2020)

LETTER MOTION for Leave to File Plaintiffs' request for a

58

statutory three-judge court pursuant to 28 U.S.C. 2284 addressed to

Judge Jesse M. Furman from Matthew Colangelo dated August 5,

2020. Document filed by State of New York..(Colangelo, Matthew)

(Entered: 08/05/2020)

59 ORDER granting 54 Motion for Steven C. Kilpatrick to Appear Pro Hac Vice; granting 55 Motion for Eric R. Olson to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/06/2020)

60 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Tania Maestas to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of New Mexico. (Attachments: # 1 Exhibit New Mexico Certificate of Good Standing, # 2 Exhibit New York Certificate of Good Standing, # 3 Affidavit, # 4 Text of Proposed Order).(Maestas, Tania) Modified on 8/6/2020 (bcu). (Entered: 08/06/2020)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 60 MOTION for Tania Maestas to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): Attorney Affidavit not notarized. Please refile entire motion and make the affidavit is notarized.;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days attach Proposed Order.. (bcu) (Entered: 08/06/2020)

61 MOTION for Tania Maestas to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21036079. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of New Mexico. (Attachments: # 1 Exhibit New Mexico Certificate of Good Standing, # 2 Exhibit New York Certificate of Good Standing, # 3 Affidavit, # 4 Text of Proposed Order).(Maestas, Tania) (Entered: 08/06/2020)

***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Dale E. Ho to RE-FILE

08/06/2020
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Document No. 57 Amended Complaint. The filing is deficient for the following reason(s): the wrong party/parties whom the pleading is against were selected. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers select the individually named party/parties the pleading is against. (sj) (Entered: 08/06/2020)

62

AMENDED COMPLAINT amending 1 Complaint,,,, against

Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr.,

Donald J. Trump, United States Department of

Commerce.Document filed by American-Arab Anti-Discrimination

Committee, Make the Road New York, Casa, CASA, ADC Research

Institute, New York Immigration Coalition. Related document: 1

Complaint,,,,..(Ho, Dale) (Entered: 08/06/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 61 MOTION for Tania Maestas to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21036079. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/06/2020)

63 ORDER granting 61 Motion for Tania Maestas to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/06/2020)

64 MOTION for Susan P. Herman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21037049. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Maine. (Attachments: # 1 Affidavit Affidavit of Susan P. Herman, # 2 Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order for Admission Pro Hac Vice).(Herman, Susan) (Entered: 08/06/2020)

LETTER RESPONSE to Motion addressed to Judge Jesse M.

65

Furman from AUSA Allison Rovner dated August 6, 2020 re: 58

LETTER MOTION for Leave to File Plaintiffs' request for a statutory three-judge court pursuant to 28 U.S.C. 2284 addressed to Judge Jesse M. Furman from Matthew Colangelo dated August 5, 2020. . Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Rovner, Allison) (Entered: 08/06/2020)

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NOTICE OF APPEARANCE by Julia Alejandra Gomez Hernandez

66

on behalf of ADC Research Institute, American-Arab Anti-

Discrimination Committee, CASA, FIEL Houston Inc, Make the

Road New York, Casa, New York Immigration Coalition..(Gomez

Hernandez, Julia) (Entered: 08/06/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 64 MOTION for Susan P. Herman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21037049. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/06/2020)

67 ORDER granting 64 Motion for Susan P. Herman to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/07/2020)

REQUEST TO THE CHIEF JUDGE OF THE U.S. COURT OF

68

APPEALS FOR THE SECOND CIRCUIT FOR APPOINTMENT

OF A THREE-JUDGE PANEL PURSUANT TO 28 U.S.C. §

2248(b) granting 58 Letter Motion for Leave to File Document. Plaintiffs request is GRANTED, substantially for the two reasons set forth in their letter-motion. Accordingly, and substantially for the reasons set forth in Plaintiffs letter-motion, the Court respectfully requests that the Chief Judge of the United States Court of Appeals for the Second Circuit promptly appoint a three-judge panel to preside over the claims presented by this litigation. Should the Chief Judge of the Second Circuit need any additional information or have any inquiries, this Court is available any time. Respectfully Submitted. (Signed by Judge Jesse M. Furman on 8/7/20) (yv) Transmission to Appeals Clerk. Transmission to Office of the Clerk of Court for processing. (Entered: 08/07/2020)
69 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Richard N. Coglianese to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-21054338. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Columbus. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order Granting Motion)Filed In Associated Cases: 1:20-cv-05770JMF, 1:20-cv-05781-JMF.(Coglianese, Richard) Modified on 8/7/2020 (bcu). (Entered: 08/07/2020)
70 NOTICE OF APPEARANCE by Eric Ross Haren on behalf of State of New York..(Haren, Eric) (Entered: 08/07/2020)

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71 MOTION for Lara Baker-Morrish to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21054828. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Columbus. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order Granting Motion).(Baker-Morrish, Lara) (Entered: 08/07/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 71 MOTION for Lara Baker-Morrish to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21054828. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/07/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. (46 in 1:20-cv-05781-JMF) MOTION for Richard N. Coglianese to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21054338. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): the motion to appear pro hac vice was spread to multiple civil cases;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice in the lead case and a separate Motion to Appear Pro Hac Vice in each case and pay the filing fee for each motion - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv05781-JMF(bcu) (Entered: 08/07/2020)
72 ORDER granting 71 Motion for Lara Baker-Morrish to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/07/2020)
73 MOTION for Richard N. Coglianese to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Columbus. (Attachments: # 1 Exhibit Affidavit, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order Granting Motion).(Coglianese, Richard) (Entered: 08/07/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 73 MOTION for Richard N. Coglianese to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/07/2020)

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MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION

74

FOR PARTIAL SUMMARY JUDGMENT OR PRELIMINARY

INJUNCTION]. Document filed by ADC Research Institute,

American-Arab Anti-Discrimination Committee, CASA, City and

County of San Francisco, City of Central Falls, City of Chicago, City

of Columbus, City of New York, City of Philadelphia, City of

Phoenix, City of Pittsburgh, City of Providence, City of Seattle,

Commonwealth of Massachusetts, Commonwealth of Pennsylvania,

Commonwealth of Virginia, County of Cameron, County of El Paso,

County of Hidalgo, County of Monterey, District of Columbia, FIEL

Houston Inc, Howard County, Make the Road New York, Casa, New

York Immigration Coalition, State of Colorado, State of

Connecticut, State of Delaware, State of Hawaii, State of Illinois,

State of Maine, State of Maryland, State of Michigan, State of

Minnesota, State of Nevada, State of New Jersey, State of New

Mexico, State of New York, State of North Carolina, State of

Oregon, State of Rhode Island, State of Vermont, State of

Washington, State of Wisconsin, United States Conference of

Mayors..(Colangelo, Matthew) (Entered: 08/07/2020)

75 RULE 56.1 STATEMENT. Document filed by ADC Research Institute, American-Arab Anti-Discrimination Committee, CASA, City and County of San Francisco, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City of Seattle, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, Commonwealth of Virginia, County of Cameron, County of El Paso, County of Hidalgo, County of Monterey, District of Columbia, FIEL Houston Inc, Howard County, Make the Road New York, Casa, New York Immigration Coalition, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, United States Conference of Mayors..(Colangelo, Matthew) (Entered: 08/07/2020)

DECLARATION of Matthew Colangelo in Support re: 74 76
MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR PRELIMINARY INJUNCTION].. Document filed by ADC Research Institute, American-Arab Anti-Discrimination Committee, CASA, City and County of San Francisco, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City of

08/07/2020 77

Seattle, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, Commonwealth of Virginia, County of Cameron, County of El Paso, County of Hidalgo, County of Monterey, District of Columbia, FIEL Houston Inc, Howard County, Make the Road New York, Casa, New York Immigration Coalition, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, United States Conference of
Mayors. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15,
# 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit
19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22,
# 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit
26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37,
# 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59).(Colangelo, Matthew) (Entered: 08/07/2020)
MEMORANDUM OF LAW in Support re: 74 MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR PRELIMINARY INJUNCTION]. . Document filed by ADC Research Institute, American-Arab AntiDiscrimination Committee, CASA, City and County of San Francisco, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City of Seattle, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, Commonwealth of Virginia, County of Cameron, County of El Paso, County of Hidalgo, County of Monterey, District of Columbia, FIEL Houston

08/10/2020 08/10/2020
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Inc, Howard County, Make the Road New York, Casa, New York Immigration Coalition, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, United States Conference of Mayors..(Colangelo, Matthew) (Entered: 08/07/2020)
78 ORDER granting 73 Motion for Richard N. Coglianese to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/10/2020)
79 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/5/2020 before Judge Jesse M. Furman. Court Reporter/Transcriber: Raquel Robles, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/31/2020. Redacted Transcript Deadline set for 9/10/2020. Release of Transcript Restriction set for 11/9/2020.Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(McGuirk, Kelly) (Entered: 08/10/2020)
80 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/5/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(McGuirk, Kelly) (Entered: 08/10/2020)
81 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21076283. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Chicago. (Attachments: # 1 Exhibit Affidavit to support motion for pro hac vice, # 2 Exhibit Certificate of Good Standing, # 3 Exhibit Proposed Order).(Hirsch, Rebecca) Modified on 8/10/2020 (vba). (Entered: 08/10/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 81 MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21076283. Motion

08/10/2020 08/10/2020 08/11/2020 08/11/2020

and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from SUPREME COURT OF ILLINOIS;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 08/10/2020)

ORDER of USCA (Certified Copy) USCA Case Number 20-2630.

82

ROBERT A. KATZMANN, Chief Circuit Judge: Having received

a 68 request from United States District Judge Jesse M. Furman to appoint a three-judge panel to hear the above-mentioned matter pursuant to 28 U.S.C. §2284(b)(1), I hereby designate United States Circuit Judge Richard C. Wesley and United States Circuit Judge Peter W. Hall to serve as members of the Court to hear and determine the action. Robert A. Katzmann, Chief Circuit Judge. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 08/10/2020..(nd) Modified on 8/10/2020 (nd). (Entered: 08/10/2020)
83 MANDATE of USCA (Certified Copy) USCA Case Number 202630. ROBERT A. KATZMANN, Chief Circuit Judge: Having

received a 68 request from United States District Judge Jesse M. Furman to appoint a three-judge panel to hear the abovementioned matter pursuant to 28 U.S.C. §2284(b)(1), I hereby designate United States Circuit Judge Richard C. Wesley and United States Circuit Judge Peter W. Hall to serve as members of the Court to hear and determine the action. Robert A. Katzmann, Chief Circuit Judge. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/10/2020..(nd) Modified on 8/10/2020 (nd). (Entered: 08/10/2020)
84 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Ann E. Lynch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21101391. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Commonwealth of Massachusetts. (Attachments: # 1 Affidavit Affidavit in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order on Motion for Admission Pro Hac Vice).(Lynch, Ann) Modified on 8/11/2020 (vba). (Entered: 08/11/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document

08/11/2020 08/11/2020 08/12/2020

No. 84 MOTION for Ann E. Lynch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21101391. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): AFFIDAVIT IS NOT NOTARIZED; CAPTIONED FOR 2 SEPARATE CASES;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 08/11/2020)

85 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for John Daniel Reaves to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21103182. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by United States Conference of Mayors. (Attachments: # 1 Exhibit Bar Certificate of Good Standing, # 2 Exhibit Affidavit of Good Standinga, # 3 Text of Proposed Order).(Reaves, John) Modified on 8/11/2020 (vba). (Entered: 08/11/2020)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 85 MOTION for John Daniel Reaves to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC21103182. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): AFFIDAVIT NOT NOTARIZED;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (vba) (Entered: 08/11/2020)

ORDER. On August 10, 2020, Chief Circuit Judge Robert A.

86

Katzmann appointed a three-judge panel to hear this matter pursuant

to 28 U.S.C. § 2284(b)(1). See ECF Nos. 82-83. Section 2284(b)(3)

provides, in relevant part, that [a] single judge may conduct all

proceedings except the trial, and with specified exceptions not yet

relevant here enter all orders permitted by the rules of civil

procedure. Nevertheless, mindful that the three-judge requirement in

28 U.S.C. § 2284 is jurisdictional, Kalson v. Paterson, 542 F.3d 281,

287 (2d Cir. 2008), and for avoidance of any doubt, the Court hereby

adopts the orders previously entered in this matter, including but not

limited to the scheduling order of August 5, 2020, see ECF No. 53,

and the consolidation order of August 4, 2020, see ECF No. 43.

Further, the Court grants to Judge Furman authority to act on the

Court's behalf with respect to any pro hac vice motions filed in this

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matter. SO ORDERED. (Signed by Judge Jesse M. Furman, United States Circuit Judge Richard C. Wesley and United States Circuit Judge Peter W. Hall on 8/12/20) (yv) (Entered: 08/12/2020)

87 MOTION for Ann E. Lynch to Appear Pro Hac Vice Corrected. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Commonwealth of Massachusetts. (Attachments: # 1 Affidavit Affidavit in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order on Motion for Admission Pro Hac Vice).(Lynch, Ann) (Entered: 08/12/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 87 MOTION for Ann E. Lynch to Appear Pro Hac Vice Corrected. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/13/2020)

88 ORDER granting 87 Motion for Ann E. Lynch to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/13/2020)

89 MOTION for John Daniel Reaves to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by United States Conference of Mayors. (Attachments: # 1 Affidavit Notarized Affidavit-Good Standing, # 2 Exhibit DC Bar Certificate,Good Standing, # 3 Text of Proposed Order).(Reaves, John) (Entered: 08/13/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 89 MOTION for John Daniel Reaves to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/13/2020)

90 ORDER granting 89 Motion for John Daniel Reaves to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/13/2020)

LETTER MOTION for Extension of Time of the briefing

91

schedule addressed to Judge Jesse M. Furman from AUSA Allison

Rovner dated August 13, 2020. Document filed by Bureau of the

Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump,

United States Department of Commerce..(Rovner, Allison) (Entered:

08/13/2020)

08/13/2020 08/14/2020 08/14/2020 08/14/2020 08/14/2020 08/14/2020

92 ORDER with respect to 91 Letter Motion for Extension of Time of the briefing schedule: Plaintiffs shall file any response by noon tomorrow. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/13/2020)

93 CONSENT MOTION for Leave to File Amici Curiae Brief of Members of Congress. Document filed by Brian Schatz, Richard Blumenthal, Sherrod Brown, Martin Heinrich, Mazie K. Hirono, Jeffrey A. Merkley, Elizabeth Warren, Ron L. Wyden. (Attachments: # 1 Motion for Leave To File, # 2 Exhibit Proposed Amici Curiae Brief, # 3 Text of Proposed Order).(Gans, David) (Entered: 08/14/2020)

LETTER RESPONSE in Opposition to Motion addressed to Judge

94

Jesse M. Furman from Matthew Colangelo dated August 14, 2020

re: 91 LETTER MOTION for Extension of Time of the briefing schedule addressed to Judge Jesse M. Furman from AUSA Allison Rovner dated August 13, 2020. . Document filed by State of New

York. (Attachments: # 1 (Entered: 08/14/2020)

Exhibit 1).(Colangelo, Matthew)

95 ORDER granting in part 91 Letter Motion for Extension of Time of the briefing schedule. The briefing schedule, see ECF

No. 53 , is hereby modified as follows: Defendants shall file their combined opposition and cross-motion by August 19, 2020; Plaintiffs shall file their combined reply and opposition by August 25, 2020; and Defendants shall file their reply by August 28, 2020. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/14/2020)

MEMO ENDORSED ORDER granting (93) Motion for Leave to

96

File Document in case 1:20-cv-05770-JMF; granting (49) Motion for

Leave to File Document in case 1:20-cv-05781-JMF.

ENDORSEMENT: Application GRANTED. The Court reminds the

parties and amici that because 20-CV-5770 and 20-CV-5781 have

been consolidated, filings should be made only in 20-CV-5770. The

Clerk of Court is directed to terminate 20-CV-5770, ECF No. 93,

and 20-CV-5781, ECF No. 49. SO ORDERED. (Signed by Judge

Jesse M. Furman on 8/14/20) Filed In Associated Cases: 1:20-cv-

05770-JMF, 1:20-cv-05781-JMF (yv) (Entered: 08/14/2020)

97 NOTICE OF APPEARANCE by Richard W Clary on behalf of Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland,

08/14/2020 08/14/2020 08/14/2020 08/14/2020 08/14/2020 08/14/2020

J. Morgan Kousser, Erika Lee, Natalie Molina, Steven Ruggles..(Clary, Richard) (Entered: 08/14/2020)
98 NOTICE OF APPEARANCE by Antony L Ryan on behalf of Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalie Molina, Steven Ruggles..(Ryan, Antony) (Entered: 08/14/2020)
99 NOTICE OF APPEARANCE by Helam Gebremariam on behalf of Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalie Molina, Steven Ruggles..(Gebremariam, Helam) (Entered: 08/14/2020)
100 NOTICE OF APPEARANCE by Alexander H. Southwell on behalf of 16 Businesses and Business Organizations..(Southwell, Alexander) (Entered: 08/14/2020)
101 NOTICE OF APPEARANCE by Lee Ross Crain on behalf of 16 Businesses and Business Organizations..(Crain, Lee) (Entered: 08/14/2020)
102 NOTICE OF APPEARANCE by Joshua Morgan Wesneski on behalf of 16 Businesses and Business Organizations..(Wesneski, Joshua) (Entered: 08/14/2020)
103 MOTION to File Amicus Brief in Support of Plaintiffs. Document filed by 16 Businesses and Business Organizations. (Attachments:

08/14/2020 08/14/2020 08/14/2020

# 1 Proposed Amicus Brief, # 2 Text of Proposed Order).(Southwell, Alexander) (Entered: 08/14/2020)

104 MOTION for Mark Trachtenberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21165587. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalie Molina, Steven Ruggles. (Attachments: # 1 Exhibit A - Affidavit of Mark Trachtenberg and Certificate of Good Standing, # 2 Text of Proposed Order).(Ryan, Antony) (Entered: 08/14/2020)

105 FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT #110) LETTER MOTION to File Amicus Brief addressed to Judge Jesse M. Furman from Antony L. Ryan dated August 14, 2020. Document filed by Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalie Molina, Steven Ruggles. (Attachments: # 1 Proposed Brief).(Ryan, Antony) Modified on 8/17/2020 (lb). (Entered: 08/14/2020)

MOTION for Leave to File Brief of The U.S. House of

106

Representatives as Amicus Curiae in Support of Plaintiffs / Notice of

08/14/2020

Unopposed Motion for Leave to File Brief. Document filed by U.S. House of Representatives..(Letter, Douglas) (Entered: 08/14/2020)
107 MEMORANDUM OF LAW in Support re: 106 MOTION for Leave to File Brief of The U.S. House of Representatives as Amicus Curiae in Support of Plaintiffs / Notice of Unopposed Motion for Leave to File Brief. . Document filed by U.S. House of

08/14/2020

Representatives. (Attachments: # 1 Exhibit (Proposed) Brief of The U.S. House of Representatives as Amicus Curiae in Support of Plaintiffs).(Letter, Douglas) (Entered: 08/14/2020)
108 CONSENT MOTION for Leave to File Amici Curiae Brief of The League of Women Voters of the United States, The League of Women Voters of Texas, The League of Women Voters of Florida, and The League of Women Voters of California. Document filed by The League of Women Voters of the United States, The League of Women Voters of Texas, The League of Women Voters of Florida, The League of Women Voters of California. (Attachments: # 1

08/14/2020 08/14/2020

Proposed Amici Curiae Brief).(Sills, Robert) (Entered: 08/14/2020)

MEMORANDUM OF LAW in Support re: 108 CONSENT

109

MOTION for Leave to File Amici Curiae Brief of The League of

Women Voters of the United States, The League of Women Voters of

Texas, The League of Women Voters of Florida, and The League of

Women Voters of California. . Document filed by The League of

Women Voters of California, The League of Women Voters of

Florida, The League of Women Voters of Texas, The League of

Women Voters of the United States..(Sills, Robert) (Entered:

08/14/2020)

110 LETTER MOTION to File Amicus Brief addressed to Judge Jesse M. Furman from Antony L. Ryan dated August 14, 2020. Document filed by Margo Anderson, Andrew Beveridge, Rachel Buff, Libby Garland, J. Morgan Kousser, Erika Lee, Natalie Molina, Steven

08/17/2020

Ruggles. (Attachments: # 1 (Entered: 08/14/2020)

Proposed Brief).(Ryan, Antony)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 104 MOTION for Mark Trachtenberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21165587. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/17/2020)

08/17/2020
08/17/2020 08/18/2020 08/18/2020 08/18/2020 08/19/2020 08/19/2020

111 ORDER granting 103 Motion to File Amicus Brief;
granting 105 Motion to File Amicus Brief; granting 106 Motion for Leave to File Document; granting 108 Motion for Leave to File Document; granting 110 Motion to File Amicus Brief. On August 14, 2020, four motions for leave to file amicus briefs were filed on behalf of a coalition of sixteen businesses and business organizations; the U.S. House of Representatives; the League of Women Voters of the United States (and state affiliates); and a group of scholars and historians of the census and immigration.1 All are on consent and/or without objection from the parties. All four motions are GRANTED. The Clerk of Court is directed to terminate ECF Nos. 103, 105, 106, 108, and 110. SO ORDERED. (Signed by United States Circuit Judge Richard C. Wesly, United States Circuit Judge Peter W. Hall and Judge Jesse M. Furman on 8/17/20) (yv) (Entered: 08/17/2020)
112 ORDER granting 104 Motion for Mark Trachtenberg to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/17/2020)
113 MOTION for Gina Michele D'Andrea to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21207857. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Immigration Reform Law Institute..(D'Andrea, Gina) (Entered: 08/18/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 113 MOTION for Gina Michele D'Andrea to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21207857. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/18/2020)
114 ORDER granting 113 Motion for Gina Michele D'Andrea to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/18/2020)
115 NOTICE OF APPEARANCE by Elliott Marc Davis on behalf of Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Davis, Elliott) (Entered: 08/19/2020)
116 NOTICE OF APPEARANCE by Daniel Mauler on behalf of Bureau of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States Department of Commerce, Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Filed In Associated Cases:

08/19/2020 117
08/19/2020 118

1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) (Entered: 08/19/2020)
MOTION to Dismiss . Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Responses due by 8/25/2020 Return Date set for 8/28/2020 at 11:59 PM..(Davis, Elliott) (Entered: 08/19/2020)
MEMORANDUM OF LAW in Opposition re: 74 MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR PRELIMINARY INJUNCTION]., 117

08/19/2020 119

MOTION to Dismiss . . Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Davis, Elliott) (Entered: 08/19/2020)
DECLARATION of John M. Abowd in Opposition re: 74
MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR

PRELIMINARY INJUNCTION]., 117 MOTION to Dismiss .. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of

08/19/2020 120

Commerce. (Attachments: # 1 Supplement John M. Abowd Professional Resume).(Davis, Elliott) (Entered: 08/19/2020) DECLARATION of Albert E. Fontenot, Jr. in Opposition re: 74
MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR

08/19/2020 08/20/2020

PRELIMINARY INJUNCTION]., 117 MOTION to Dismiss .. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Davis, Elliott) (Entered: 08/19/2020)
121 COUNTER STATEMENT TO 75 Rule 56.1 Statement,,,,. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Davis, Elliott) (Entered: 08/19/2020)
122 MOTION for Tsega Girma to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21242101. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Howard County. (Attachments:

08/20/2020
08/20/2020 08/20/2020 08/21/2020
08/21/2020 08/21/2020
08/21/2020

# 1 Affidavit, # 2 Certificate of Good Standing Court of Appeals of Maryland, # 3 Certificate of Good Standing District of Columbia, # 4 Text of Proposed Order).(Girma, Tsega) (Entered: 08/20/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 122 MOTION for Tsega Girma to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21242101. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 08/20/2020)
123 ORDER granting 122 Motion for Tsega Girma to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/20/2020)
124 LETTER MOTION to File Amicus Brief addressed to Judge Jesse M. Furman from Gina M. D'Andrea dated 08/20/2020. Document filed by Immigration Reform Law Institute. (Attachments: # 1 Proposed Brief).(D'Andrea, Gina) (Entered: 08/20/2020)
125 ORDER granting 124 Letter Motion to File Amicus Brief. On August 20, 2020, the Immigration Reform Law Institute filed a letter-motion seeking leave to file an amicus brief. See ECF No. 124. The motion, filed on consent and/or without objection from the parties, is hereby GRANTED. The Clerk of Court is directed to terminate ECF No. 124. SO ORDERED. (Signed by United States Circuit Judge Richard C. Wesley, United States Circuit Judge Peter W. Hall, Judge Jesse M. Furman on 8/21/20) (yv) (Entered: 08/21/2020)
126 MOTION for Leave to Appear representing DC . Document filed by District of Columbia..(Konopka, Kathleen) (Entered: 08/21/2020)
127 MOTION for Blaine I. Green to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274413. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Erika Lee, The League of Women Voters of California, The League of Women Voters of Florida, The League of Women Voters of Texas, The League of Women Voters of the United States. (Attachments: # 1 Declaration of Blaine I Green, # 2 Exhibit A Certificate of Good Standing, # 3 Text of Proposed Order).(Green, Blaine) (Entered: 08/21/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 127 MOTION for Blaine I. Green to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274413. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been

08/21/2020
08/21/2020 08/21/2020
08/21/2020 08/21/2020 08/24/2020 08/24/2020

reviewed and there are no deficiencies. (wb) (Entered: 08/21/2020)
128 MOTION for Dustin Chase-Woods to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274780. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by The League of Women Voters of California, The League of Women Voters of Florida, The League of Women Voters of Texas, The League of Women Voters of the United States. (Attachments: # 1 Declaration of Dustin Chase Woods, # 2 Exhibit A Certificate of Good Standing, # 3 Text of Proposed Order).(Chase-Woods, Dustin) (Entered: 08/21/2020)
129 ORDER granting 127 Motion for Blaine I. Green to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/21/2020)
130 MOTION for Ashleigh K. Acevedo to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274927. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by The League of Women Voters of California, The League of Women Voters of Florida, The League of Women Voters of Texas, The League of Women Voters of the United States. (Attachments: # 1 Declaration of Ashleigh Acevedo, # 2 Exhibit A Certificate of Good Standing, # 3 Text of Proposed Order).(Acevedo, Ashleigh) (Entered: 08/21/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 130 MOTION for Ashleigh K. Acevedo to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274927. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/21/2020)
131 ORDER granting 130 Motion for Ashleigh K. Acevedo to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/21/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 128 MOTION for Dustin ChaseWoods to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21274780. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/24/2020)
132 ORDER granting 128 Motion for Dustin Chase-Woods to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/24/2020)

08/24/2020 08/24/2020 08/24/2020 08/24/2020 08/24/2020 08/24/2020

133 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Chicago. (Attachments: # 1 Exhibit Affidavit to support motion for pro hac vice, # 2 Exhibit Proposed order, # 3 Exhibit Certificate of good standing).(Hirsch, Rebecca) Modified on 8/24/2020 (vba). (Entered: 08/24/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice re: Document No. 133 MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): the filing fee was not paid;.. Pay the filing fee using the event Pro Hac Vice Fee Payment found under the event list Other Documents. (vba) (Entered: 08/24/2020)
134 MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21294147. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by City of Chicago. (Attachments: # 1 Exhibit Affidavit to support motion for pro hac vice, # 2 Exhibit Certificate of Good Standing, # 3 Exhibit Proposed Order).(Hirsch, Rebecca) (Entered: 08/24/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 134 MOTION for Rebecca Hirsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21294147. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/24/2020)
135 MOTION for William M. Litt to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by County of Monterey. (Attachments: # 1 Affidavit Declaration of William M. Litt In Support Motion to Admit Counsel Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Text of Proposed Order).(Litt, William) Modified on 8/24/2020 (vba). Modified on 8/24/2020 (wb). (Entered: 08/24/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 135 MOTION for William M. Litt to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/24/2020)

08/24/2020 08/24/2020 08/24/2020
08/24/2020
08/24/2020
08/24/2020 08/24/2020

136 ORDER granting 134 Motion by Rebecca Hirsch to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/24/2020)
137 ORDER granting 135 Motion for William M. Litt to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/24/2020)
138 MOTION for Jennifer Altman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21297262. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by The League of Women Voters of California, The League of Women Voters of Florida, The League of Women Voters of Texas, The League of Women Voters of the United States. (Attachments: # 1 Declaration of Jennifer Altman, # 2 Exhibit A Certificate of Good Standing, # 3 Text of Proposed Order).(Altman, Jennifer) (Entered: 08/24/2020)
139 MOTION for Shani Rivaux to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21297370. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by The League of Women Voters of California, The League of Women Voters of Florida, The League of Women Voters of Texas, The League of Women Voters of the United States. (Attachments: # 1 Declaration of Shani Rivaux, # 2 Exhibit A Certificate of Good Standing, # 3 Text of Proposed Order).(Rivaux, Shani) (Entered: 08/24/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 138 MOTION for Jennifer Altman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21297262. Motion and supporting papers to be reviewed by Clerk's Office staff., 139 MOTION for Shani Rivaux to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21297370. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/24/2020)
140 ORDER granting 138 Motion for Jennifer Altman to Appear Pro Hac Vice; granting 139 Motion for Shani Rivaux to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/24/2020)
141 MOTION for Robert Stanton Jones to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21301788. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Immigration Coalition. (Attachments: # 1 Declaration of Robert Stanton Jones,

08/24/2020 08/25/2020
08/25/2020 08/25/2020 08/25/2020 08/25/2020 08/25/2020

# 2 Certificate of Good Standing DC, # 3 Text of Proposed Order).(Jones, Robert) (Entered: 08/24/2020)
142 MOTION for Daniel Frederick Jacobson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21302029. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Immigration Coalition. (Attachments: # 1 Declaration of Daniel Jacobson, # 2 Certificate of Good Standing DC, # 3 Text of Proposed Order).(Jacobson, Daniel) (Entered: 08/24/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 142 MOTION for Daniel Frederick Jacobson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21302029. Motion and supporting papers to be reviewed by Clerk's Office staff., 141 MOTION for Robert Stanton Jones to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21301788. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/25/2020)
143 ORDER denying without prejudice 126 Motion for Leave to Appear representing DC. If counsel is admitted in this District, counsel should enter a notice of appearance, not file a motion for leave to appear; if counsel is not admitted, counsel should file a motion to be admitted pro hac vice in the ordinary course. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/25/2020)
144 ORDER granting 141 Motion for Robert Stanton Jones to Appear Pro Hac Vice; granting 142 Motion for Daniel Frederick Jacobson to Appear Pro Hac Vice. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/25/2020)
145 NOTICE OF APPEARANCE by Kathleen Konopka on behalf of District of Columbia..(Konopka, Kathleen) (Entered: 08/25/2020)
146 MOTION for Jennifer Marie Jackson to Appear Pro Hac Vice for State of Michigan. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Michigan. (Attachments: # 1 Affidavit in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit - Cert of Good Standing from Michigan Supreme Court, # 3 Text of Proposed Order).(Jackson, Jennifer) (Entered: 08/25/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 146 MOTION for Jennifer Marie Jackson to Appear Pro Hac Vice for State of Michigan. Motion and supporting papers to be reviewed by Clerk's Office staff..

08/25/2020 08/25/2020 08/25/2020

The document has been reviewed and there are no deficiencies. (vba) (Entered: 08/25/2020)
147 ORDER granting 146 Motion for Jennifer Marie Jackson to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/25/2020)
148 NOTICE OF APPEARANCE by William Merrill Litt on behalf of County of Monterey..(Litt, William) (Entered: 08/25/2020)
DECLARATION of Elena Goldstein in Support re: 74 149
MOTION for Partial Summary Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR PRELIMINARY INJUNCTION].. Document filed by ADC Research Institute, American-Arab Anti-Discrimination Committee, CASA, City and County of San Francisco, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City of Seattle, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, Commonwealth of Virginia, County of Cameron, County of El Paso, County of Hidalgo, County of Monterey, District of Columbia, FIEL Houston Inc, Howard County, Make the Road New York, Casa, New York Immigration Coalition, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, United States Conference of Mayors. (Attachments: # 1 Exhibit 60 (Awawdeh Declaration), # 2 Exhibit 61 (Mendelsohn Declaration), # 3 Exhibit 62 (Supplemental Espinosa Declaration), # 4 Exhibit 63 (Supplemental Oshiro Declaration), # 5 Exhibit 64 (Supplemental Seon Declaration), # 6 Exhibit 65 (Barreto Expert Reply Declaration), # 7

08/25/2020 150

Exhibit 66 (Thompson Expert Reply Declaration)).(Goldstein, Elena) (Entered: 08/25/2020)
MEMORANDUM OF LAW in Opposition re: 117 MOTION to Dismiss . Plaintiffs' Consolidated Memorandum of Law in Opposition to Defendants' Motion to Dismiss and Reply in Support of Plaintiffs' Motion for Partial Summary Judgment or Preliminary Injunction. Document filed by ADC Research Institute, AmericanArab Anti-Discrimination Committee, CASA, City and County of San Francisco, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix,

08/27/2020
08/27/2020 08/27/2020 08/28/2020

City of Pittsburgh, City of Providence, City of Seattle, Commonwealth of Massachusetts, Commonwealth of Pennsylvania, Commonwealth of Virginia, County of Cameron, County of El Paso, County of Hidalgo, County of Monterey, District of Columbia, FIEL Houston Inc, Howard County, Make the Road New York, Casa, New York Immigration Coalition, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, State of Wisconsin, United States Conference of Mayors..(Colangelo, Matthew) (Entered: 08/25/2020)

ORDER: On September 3, 2020 at 10:00 a.m., the parties shall

151

appear by telephone for oral argument on their pending motions. At

least twenty-four hours before the oral argument, Liaison Counsel

shall provide to the Court (via Judge Furman's Chambers email) a

list of counsel who will participate in the oral argument; no more

than two lawyers per side may participate. The Court will provide to

each Liaison Counsel information on how participating counsel can

access the argument. Other counsel and members of the public may

access the conference by calling 888-363-4749 and using access

code 5421540#. That line will be on listen-only mode - that is, all

callers will be muted. SO ORDERED., ( Oral Argument set for

9/3/2020 at 10:00 AM before Judge Jesse M. Furman., Telephone

Conference set for 9/3/2020 at 10:00 AM before Judge Jesse M.

Furman.) (Signed by Judge Jesse M. Furman, Richard C. Wesley and

Peter W. Hall on 8/27/2020) (ama) (Entered: 08/27/2020)

152 LETTER MOTION for Leave to File Excess Pages addressed to Judge Jesse M. Furman from AUSA Allison Rovner dated August 27, 2020. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce..(Rovner, Allison) (Entered: 08/27/2020)

153 ORDER granting 152 Letter Motion for Leave to File Excess Pages. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/27/2020)

REPLY MEMORANDUM OF LAW in Support re: (117 in 1:20-cv-

154

05770-JMF) MOTION to Dismiss . (Defendants' Reply in Support of

Motion to Dismiss). Document filed by Bureau of the Census, Steven

Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States

Department of Commerce, Bureau of the Census, Steven

Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States

Department of Commerce. Filed In Associated Cases: 1:20-cv-

08/31/2020 08/31/2020
08/31/2020
08/31/2020 08/31/2020
09/01/2020 09/02/2020

05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) (Entered: 08/28/2020)

NOTICE OF APPEARANCE by Judith Naomi Vale on behalf of

155

State of New York..(Vale, Judith) (Entered: 08/31/2020)

156 MOTION for Peter Eliasberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21407133. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Immigration Coalition. (Attachments: # 1 Affidavit of Peter Eliasberg, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order re Motion for Admission Pro Hac Vice).(Eliasberg, Peter) (Entered: 08/31/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 156 MOTION for Peter Eliasberg to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21407133. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/31/2020)

157 ORDER granting 156 Motion for Peter Eliasberg to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/31/2020)

ORDER. At the oral argument scheduled for September 3, 2020 at

158

10:00 a.m., the parties should be prepared to address the following

topics and questions as further set forth in this Order. Each side

should anticipate having 20-30 minutes for its oral argument. Only

one lawyer from each side will be permitted to speak on a given

issue. SO ORDERED. (Signed by United States Circuit Judge

Richard C. Wesley, United States Circuit Judge Peter W. Hall and

Judge Jesse M. Furman on 8/31/20) (yv) (Entered: 08/31/2020)

NOTICE OF APPEARANCE by Sopan Joshi on behalf of Bureau of

159

the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J.

Trump, United States Department of Commerce..(Joshi, Sopan)

(Entered: 09/01/2020)

160 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Thomas Buser-Clancy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-21460545. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by ADC Research Institute, American-Arab Anti-Discrimination Committee, CASA, FIEL Houston Inc, Make the Road New York, Casa, New York Immigration Coalition. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Text of Proposed Order)Filed In Associated Cases:

09/02/2020 09/03/2020
09/08/2020 09/08/2020

1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Buser-Clancy, Thomas) Modified on 9/3/2020 (bcu). (Entered: 09/02/2020)
161 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Edgar Saldivar to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-21460727. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by ADC Research Institute, American-Arab Anti-Discrimination Committee, CASA, FIEL Houston Inc, Make the Road New York, Casa, New York Immigration Coalition. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Text of Proposed Order)Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Saldivar, Edgar) Modified on 9/3/2020 (bcu). (Entered: 09/02/2020)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. (160 in 1:20-cv-05770-JMF, 53 in 1:20-cv-05781-JMF) MOTION for Thomas Buser-Clancy to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-21460545. Motion and supporting papers to be reviewed by Clerk's Office staff., (161 in 1:20-cv-05770-JMF, 54 in 1:20-cv-05781-JMF) MOTION for Edgar Saldivar to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-21460727. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): the motion to appear pro hac vice was spread to multiple civil cases;. Re-file the motion as a Corrected Motion to Appear Pro Hac Vice in the lead case and a separate Motion to Appear Pro Hac Vice in each case and pay the filing fee for each motion - attach the correct signed PDF select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv05781-JMF(bcu) (Entered: 09/03/2020)
162 MOTION for Miranda M. Cover to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21545143. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Commonwealth of Massachusetts. (Attachments: # 1 Declaration in Support of PHV Application, # 2 Certificate of Good Standing, # 3 Text of Proposed Order Order re: PHV Application).(Cover, Miranda) (Entered: 09/08/2020)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 162 MOTION for Miranda M. Cover to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21545143. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been

09/09/2020 09/10/2020

reviewed and there are no deficiencies. (vba) (Entered: 09/08/2020)
163 ORDER granting 162 Motion for Miranda M. Cover to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 09/09/2020)

164

OPINION AND ORDER re: 74 MOTION for Partial Summary

Judgment [PLAINTIFFS' MOTION FOR PARTIAL SUMMARY

JUDGMENT OR PRELIMINARY INJUNCTION]. filed by County of

El Paso, City of Central Falls, City of Seattle, State of Rhode Island,

State of Minnesota, United States Conference of Mayors, State of

Michigan, City of Phoenix, State of Vermont, City of Philadelphia,

State of New Jersey, State of Illinois, Commonwealth of Virginia,

ADC Research Institute, City of Providence, New York Immigration

Coalition, State of North Carolina, State of Maine, State of

Delaware, Howard County, City of Pittsburgh, CASA, City of New

York, State of Maryland, FIEL Houston Inc, Make the Road New

York, Casa, State of Hawaii, Commonwealth of Pennsylvania, State

of Connecticut, Commonwealth of Massachusetts, State of Nevada,

County of Monterey, County of Hidalgo, State of Oregon, City of

Columbus, District of Columbia, County of Cameron, American-

Arab Anti-Discrimination Committee, State of Wisconsin, City and

County of San Francisco, State of New Mexico, State of New York,

State of Colorado, State of Washington, City of Chicago, 117

MOTION to Dismiss . filed by Donald J. Trump, Steven Dillingham, Bureau of the Census, Wilbur L. Ross Jr., United States Department of Commerce. There is no dispute that the President has "accustomed supervisory powers over his executive officers," Franklin, 505 U.S. at 800, and thus retains some discretion in the conduct of the decennial census and resulting apportionment calculation. Nevertheless, where the authority of the President (or other members of the Executive Branch) to act is derived from statutes passed by Congress, the President must act in accordance with, and within the boundaries of, the authority that Congress has granted. For the reasons discussed above, we conclude that the President did not do so here and that 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. Accordingly, Plaintiffs' motion for summary judgment with respect to their statutory ultra vires claims is GRANTED, Defendants (other than the President) are ENJOINED as set forth above, and the Presidential

09/10/2020 165
09/14/2020 166

Memorandum is DECLARED unlawful. We need not and do not reach the merits of Plaintiffs' other claims and need not address their request, in the alternative, for a preliminary injunction. Finally, Defendants' motion to dismiss for lack of jurisdiction is DENIED and their motion to dismiss for failure to state a claim is DENIED as moot. The Clerk of Court is directed to terminate ECF Nos. 74 and 117 and to close this case. SO ORDERED. (Signed by United States Circuit Judge Richard C. Wesley, United States Circuit Judge Peter W. Hall and Judge Jesse M. Furman on 9/10/20) (yv) Transmission to Orders and Judgments Clerk for processing. (Main Document 164 replaced on 9/14/2020) (ab). (Entered: 09/10/2020)
FINAL JUDGMENT AND PERMANENT INJUNCTION: Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs' claims arising from an ultra vires violation of 2 U.S.C. § 2a and 13 U.S.C. § 141 (namely, the Fifth Claim for Relief in the Governmental Plaintiffs' Amended Complaint and Count Two in the NGO Plaintiffs' Amended Complaint). The July 21, 2020 Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census (the "Presidential Memorandum"), announcing that it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status, is DECLARED unlawful as an ultra vires violation of Congress's delegation of authority to conduct the decennial census and apportionment calculation pursuant to 2 U.S.C. § 2a and 13 U.S.C. § 141. The Secretary of Commerce in his official capacity, the Director of the Census Bureau in his official capacity, the U.S. Department of Commerce, and the U.S. Census Bureau, and any successors to those offices, together with their agents, servants, employees, attorneys, and other persons who are in active concert or participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are PERMANENTLY ENJOINED 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. SO ORDERED. (Signed by Judge Richard C. Wesley, Judge Peter W. Hall and Judge Jesse M. Furman on 9/10/2020) Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20cv-05781-JMF (kv) (Entered: 09/10/2020)
ERRATA ORDER: The Court has substituted a new version of its September 10, 2020 Opinion and Order of at 20-CV-5770, ECF No. 164, to correct the following three typographical errors... (See ORDER.) (Signed by Judges Jesse M. Furman, Richard C. Wesley,

09/16/2020 167
09/16/2020 168
09/16/2020
09/16/2020
09/16/2020 169

and Peter W. Hall on 9/14/2020) Filed In Associated Cases: 1:20-cv05770-JMF, 1:20-cv-05781-JMF (ab) (Entered: 09/14/2020)
FILING ERROR - NO ORDER SELECTED FOR APPEAL - NOTICE OF APPEAL. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States Department of Commerce, Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) Modified on 9/16/2020 (tp). (Entered: 09/16/2020)
FILING ERROR - NO ORDER SELECTED FOR APPEAL - NOTICE OF APPEAL. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States Department of Commerce, Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) Modified on 9/16/2020 (tp). (Entered: 09/16/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel to RE-FILE Document No. (167 in 1:20-cv-05770-JMF, 60 in 1:20-cv-05781JMF) Notice of Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF(tp) (Entered: 09/16/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel to RE-FILE Document No. (61 in 1:20-cv-05781-JMF, 168 in 1:20-cv-05770JMF) Notice of Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being appealed. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF(tp) (Entered: 09/16/2020)
FILING ERROR - DEFICIENT DOCKET ENTRY - CORRECTED NOTICE OF APPEAL re: (167 in 1:20-cv-05770-

09/16/2020 170
09/16/2020 09/16/2020 09/16/2020
09/16/2020

JMF, 60 in 1:20-cv-05781-JMF) Notice of Appeal,, (164 in 1:20-cv05770-JMF) Memorandum & Opinion, (165 in 1:20-cv-05770-JMF, 55 in 1:20-cv-05781-JMF) Judgment. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States Department of Commerce, Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) Modified on 9/17/2020 (tp). (Entered: 09/16/2020)
CORRECTED NOTICE OF APPEAL re: (61 in 1:20-cv-05781JMF, 168 in 1:20-cv-05770-JMF) Notice of Appeal,, (164 in 1:20cv-05770-JMF) Memorandum & Opinion,,,,,,,,,,,,, (165 in 1:20-cv05770-JMF, 55 in 1:20-cv-05781-JMF) Judgment,,,,,,,. Document filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States Department of Commerce, Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States Department of Commerce. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781JMF.(Mauler, Daniel) (Entered: 09/16/2020)
FILING ERROR - DEFICIENT DOCKET ENTRY - Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: (62 in 1:20-cv-05781-JMF, 169 in 1:20-cv-05770-JMF) Corrected Notice of Appeal. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) Modified on 9/17/2020 (nd). (Entered: 09/16/2020)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: (63 in 1:20-cv-05781-JMF, 170 in 1:20-cv-05770-JMF) Corrected Notice of Appeal. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) (Entered: 09/16/2020)
FILING ERROR - DEFICIENT DOCKET ENTRY - Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for (62 in 1:20-cv-05781-JMF, 169 in 1:20cv-05770-JMF) Corrected Notice of Appeal, filed by Wilbur L. Ross, Jr., United States Department of Commerce, Wilbur L. Ross Jr., Bureau of the Census, Donald J. Trump, Steven Dillingham were transmitted to the U.S. Court of Appeals. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) Modified on 9/17/2020 (nd). (Entered: 09/16/2020)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for (63 in 1:20-cv-05781-JMF, 170 in 1:20-cv-05770-JMF) Corrected Notice of Appeal, filed by Wilbur L. Ross, Jr., United States Department of Commerce, Wilbur L. Ross Jr., Bureau of the Census, Donald J. Trump, Steven

09/16/2020 09/16/2020
09/17/2020 09/17/2020 09/18/2020

Dillingham were transmitted to the U.S. Court of Appeals. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) (Entered: 09/16/2020)

MOTION to Stay re: (165 in 1:20-cv-05770-JMF, 55 in 1:20-cv-

171

05781-JMF) Judgment,,,,,,, (Motion for Stay of Judgment Pending

Appeal). Document filed by Bureau of the Census, Steven

Dillingham, Wilbur L. Ross, Jr., Donald J. Trump, United States

Department of Commerce, Bureau of the Census, Steven

Dillingham, Wilbur L. Ross Jr., Donald J. Trump, United States

Department of Commerce.Filed In Associated Cases: 1:20-cv-

05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) (Entered:

09/16/2020)

MEMORANDUM OF LAW in Support re: (64 in 1:20-cv-05781-

172

JMF, 171 in 1:20-cv-05770-JMF) MOTION to Stay re: (165 in 1:20-

cv-05770-JMF, 55 in 1:20-cv-05781-JMF) Judgment,,,,,,, (Motion

for Stay of Judgment Pending Appeal). . Document filed by Bureau

of the Census, Steven Dillingham, Wilbur L. Ross, Jr., Donald J.

Trump, United States Department of Commerce, Bureau of the

Census, Steven Dillingham, Wilbur L. Ross Jr., Donald J. Trump,

United States Department of Commerce. Filed In Associated Cases:

1:20-cv-05770-JMF, 1:20-cv-05781-JMF.(Mauler, Daniel) (Entered:

09/16/2020)

173 ORDER with respect to 171 Letter Motion to Stay: Plaintiffs shall file any opposition to Defendants' motion for a stay by noon on Wednesday, September 23, 2020. No reply may be filed without prior of leave of Court. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 09/17/2020)

***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel. Document No. (62 in 1:20-cv-05781-JMF, 169 in 1:20-cv-05770-JMF) Corrected Notice of Appeal,,.. The filing is deficient for the following reason(s): the wrong event type was used to file the appeal. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781JMF(nd) (Entered: 09/17/2020)

***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel to RE-FILE Document No. (62 in 1:20-cv-05781-JMF, 169 in 1:20-cv-05770JMF) Corrected Notice of Appeal. The filing is deficient for the following reason(s): the wrong event type was used to file the appeal. Re-file the appeal using the event type Notice of Appeal to the Supreme Court found under the event list Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct order/judgment being

09/18/2020 09/18/2020 09/18/2020 09/23/2020 09/23/2020 09/23/2020

appealed. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20cv-05781-JMF(tp) (Entered: 09/18/2020)

NOTICE OF APPEAL TO THE SUPREME COURT from (164 in

174

1:20-cv-05770-JMF) Memorandum & Opinion,,,,,,,,,,,,, (165 in 1:20-

cv-05770-JMF, 55 in 1:20-cv-05781-JMF) Judgment,,,,,,,. Document

filed by Bureau of the Census, Steven Dillingham, Wilbur L. Ross,

Jr., Donald J. Trump, United States Department of Commerce,

Bureau of the Census, Steven Dillingham, Wilbur L. Ross Jr.,

Donald J. Trump, United States Department of Commerce. Filed In

Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-

JMF.(Mauler, Daniel) (Entered: 09/18/2020)

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to Supreme Court of the United States re: (174 in 1:20-cv05770-JMF, 67 in 1:20-cv-05781-JMF) Notice of Appeal to the Supreme Court of the United States. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) (Entered: 09/18/2020)

Appeal Record Sent to Supreme Court of the United States (Electronic File). Certified Indexed record on Appeal Electronic Files for (174 in 1:20-cv-05770-JMF, 67 in 1:20-cv-05781-JMF) Notice of Appeal to the Supreme Court, filed by Wilbur L. Ross, Jr., United States Department of Commerce, Wilbur L. Ross Jr., Bureau of the Census, Donald J. Trump, Steven Dillingham were transmitted to the Supreme Court of the United States. Filed In Associated Cases: 1:20-cv-05770-JMF, 1:20-cv-05781-JMF. (tp) (Entered: 09/18/2020)

175 MOTION for Chase Raines to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-21799768. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by New York Immigration Coalition. (Attachments: # 1 Declaration of Chase Raines in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Certificate of Good Standing for the District of Columbia Court of Appeals, # 3 Text of Proposed Order).(Raines, Chase) (Entered: 09/23/2020)

176

MEMORANDUM OF LAW in Opposition re: 171 MOTION to

Stay re: (165 in 1:20-cv-05770-JMF, 55 in 1:20-cv-05781-JMF)

Judgment,,,,,,, (Motion for Stay of Judgment Pending Appeal). .

Document filed by ADC Research Institute, American-Arab Anti-

Discrimination Committee, CASA, Make the Road New York, Casa,

New York Immigration Coalition..(Ho, Dale) (Entered: 09/23/2020)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 175 MOTION for Chase Raines to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number

09/23/2020

ANYSDC-21799768. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (vba) (Entered: 09/23/2020)
177 ORDER granting 175 Motion for Chase Raines to Appear Pro Hac Vice (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 09/23/2020)

PACER Service Center Transaction Receipt

09/25/2020 07:45:57

PACER Login:

CRClearinghouse Client Code: Smith

Description:

Docket Report

Search Criteria:

1:20-cv-05770JMF

Billable Pages: 30

Cost:

3.00

Exempt flag: Not Exempt

Exempt reason: Not Exempt

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, DISTRICT OF COLUMBIA, STATE OF HAWAI‘I, STATE OF ILLINOIS, STATE OF MARYLAND, COMMONWEALTH OF MASSACHUSETTS, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW JERSEY, STATE OF NEW MEXICO, STATE OF NORTH CAROLINA, STATE OF OREGON, COMMONWEALTH OF PENNSYLVANIA, STATE OF RHODE ISLAND, STATE OF VERMONT, COMMONWEALTH OF VIRGINIA, STATE OF WASHINGTON; CITY OF CENTRAL FALLS, CITY OF CHICAGO, CITY OF COLUMBUS, CITY OF NEW YORK, CITY OF PHILADELPHIA, CITY OF PHOENIX, CITY OF PITTSBURGH, CITY OF PROVIDENCE, CITY AND COUNTY OF SAN FRANCISCO, CITY OF SEATTLE; CAMERON COUNTY, EL PASO COUNTY, HIDALGO COUNTY, and MONTEREY COUNTY,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES DEPARTMENT OF COMMERCE; WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; BUREAU OF THE CENSUS; and

20 Civ. ______
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

STEVEN DILLINGHAM, in his official capacity as Director of the United States Census Bureau,
Defendants.
INTRODUCTION 1. This lawsuit challenges President Donald J. Trump’s blatant disregard of an unambiguous constitutional command. The Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend. XIV, § 2. The Framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each State—including the “entire immigrant population not naturalized.” Cong. Globe, 39th Cong., 1st Sess. 432 (1866) (Rep. John Bingham). 2. For 150 years—since the United States recognized the whole personhood of those formerly bound in slavery—the unambiguous requirement that all persons be counted for apportionment purposes, regardless of immigration status, has been respected by every executive official, every cabinet officer, and every President. 3. Until now. On July 21, 2020, President Trump issued a “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1). For the first time in our history, the Memorandum announces a “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Id. at 44,680. It directs the Secretary of Commerce to provide the President with information to carry out this policy. And it declares the
2

President’s intent to make a determination of the “whole number of persons in each State” that will in fact exclude the undocumented immigrants he has targeted throughout his administration.
4. The President’s new policy and any actions Defendants take to implement it unequivocally violate the Fourteenth Amendment. The constitutional mandate to base apportionment on “the whole number of persons in each State” could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are “persons” under the Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.
5. But Defendants’ decision to exclude undocumented immigrants from apportionment also violates the Constitution and federal statutes in multiple additional ways. Defendants’ decision unlawfully discriminates against Hispanics and immigrant communities of color in violation of the Due Process Clause of the Fifth Amendment. By explicitly targeting and punishing States that refuse to assist in this administration’s enforcement of federal immigration law, Defendants’ decision violates the Tenth Amendment. And Defendants’ decision to exclude undocumented immigrants from apportionment—as well as any action they take to implement or further that decision—is both contrary to law and arbitrary and capricious, in violation of the Administrative Procedure Act.
6. Defendants’ decision harms Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests. If Defendants succeed in excluding undocumented immigrants from apportionment, some Plaintiffs will suffer severe injury to their most basic rights under our Constitution’s representational form of government: they will improperly lose one or more Members in the House of Representatives and one or more corresponding electors in the
3

Electoral College. And removing undocumented immigrants from the apportionment base will further harm Plaintiffs by, for example, undermining their ability to conduct congressional and state-level redistricting, depriving them of critical federal funding, and eroding the quality of census data on which they rely to perform essential government functions.
7. Plaintiffs the State of New York, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawai‘i, State of Illinois, State of Maryland, Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City and County of San Francisco, City of Seattle, Cameron County, El Paso County, Hidalgo County, and Monterey County therefore bring this action seeking declaratory and injunctive relief to hold Defendants to their obligation to base apportionment on “the whole number of persons in each State” and to forbid them from excluding undocumented immigrants—or any other person—from the apportionment base.
JURISDICTION AND VENUE 8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 9. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. Plaintiffs the State of New York and the City of New York are residents of this judicial district, and a
4

substantial part of the events or omissions giving rise to this Complaint occurred and are continuing to occur within the Southern District of New York.
PARTIES 11. Plaintiff the State of New York, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is New York State’s chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this action. 12. Plaintiff the State of Colorado is a sovereign state of the United States of America. The State of Colorado brings this action by and through its Attorney General, Philip J. Weiser. The Attorney General has authority to represent the state, its departments, and its agencies, and “shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party.” Colo. Rev. Stat. § 24-31-101. 13. Plaintiff the State of Connecticut, represented by and through its Attorney General, William Tong, is a sovereign state of the United States of America. The Attorney General brings this action as the state’s chief civil legal officer under Conn. Gen. Stat. § 3-124 et seq. 14. Plaintiff the State of Delaware is represented by and through its Attorney General Kathleen Jennings, and is a sovereign state of the United States of America. Attorney General Jennings is Delaware’s chief law enforcement officer, see Del. Const., art. III, and is authorized to pursue this action under 29 Del. Code § 2504. 15. Plaintiff the District of Columbia is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government. The District brings this case through the Attorney General for the District of Columbia, who is the chief legal officer for the District and possesses all powers afforded the
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Attorney General by the common and statutory law of the District. The Attorney General is responsible for upholding the public interest and has the authority to file civil actions in order to protect the public interest. D.C. Code § 1-301.81.
16. Plaintiff the State of Hawai‘i, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Clare E. Connors is the chief legal officer of the State of Hawai‘i and is authorized to appear, personally or by deputy, on behalf of the state in all courts and in all cases in which the state is a party. Haw. Const. art. V, § 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7.
17. Plaintiff the State of Illinois, represented by and through its Attorney General, Kwame Raoul, is a sovereign state of the United States of America. The Attorney General is Illinois’s chief law enforcement officer and is authorized under 15 ILCS 205/4 to pursue this action.
18. Plaintiff the State of Maryland, by and through its Attorney General, Brian E. Frosh, is a sovereign state of the United States of America. The Attorney General is Maryland’s chief legal officer with general charge, supervision, and direction of the State’s legal business. The Attorney General’s powers and duties include acting on behalf of the State and the people of Maryland in the federal courts on matters of public concern. Under the Constitution of Maryland, and as directed by the Maryland General Assembly, the Attorney General has the authority to file suit to challenge action by the federal government that threatens the public interest and welfare of Maryland residents. Md. Const. art. V, § 3(a)(2); 2017 Md. Laws, Joint Resolution 1.
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19. Plaintiff the Commonwealth of Massachusetts, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is authorized to pursue this action under Mass. Gen. Laws ch. 12, §§ 3 and 10.
20. Plaintiff the State of Michigan, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is Michigan’s chief law enforcement officer and is authorized under Michigan law, Mich. Comp. Laws §§ 14.28 and 14.29, to pursue this action.
21. Plaintiff the State of Minnesota, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is Minnesota’s chief legal officer and is authorized to pursue this action on behalf of the State. Minn. Stat. § 8.01.
22. Plaintiff the State of Nevada, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Aaron D. Ford is the chief legal officer of the State of Nevada and has the authority to commence actions in federal court to protect the interests of Nevada. Nev. Rev. Stat. § 228.170. Governor Stephen F. Sisolak is the chief executive officer of the State of Nevada. The Governor is responsible for overseeing the operations of the State and ensuring that its laws are faithfully executed. Nev. Const., art. 5, § 1.
23. Plaintiff the State of New Jersey, represented by and through its Attorney General Gurbir S. Grewal, is a sovereign state of the United States of America. The Attorney General is New Jersey’s chief legal officer and is authorized to pursue this action on behalf of the State. See N.J. Stat. Ann. § 52:17A-4(e), (g).
24. Plaintiff the State of New Mexico, represented by and through its Attorney General Hector Balderas, is a sovereign state of the United States of America. The Attorney
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General is authorized to bring an action on behalf of New Mexico in any court when, in his judgment, the interests of the State so require, N.M. Stat. Ann. § 8-5-2.
25. Plaintiff the State of North Carolina, represented by and through Attorney General Joshua H. Stein, is a sovereign state of the United States of America. The Attorney General is the State of North Carolina’s chief law enforcement officer and brings this challenge pursuant to his independent constitutional, statutory, and common-law authority.
26. Plaintiff the State of Oregon, acting by and through the Attorney General of Oregon, Ellen F. Rosenblum, is a sovereign state of the United States of America. The Attorney General is the chief law officer of Oregon and is empowered to bring this action on behalf of the State of Oregon, the Governor, and the affected state agencies under Or. Rev. Stat. §§ 180.060, 180.210, and 180.220.
27. Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United States of America. This action is brought on behalf of the Commonwealth by Attorney General Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory authority under 71 Pa. Stat. § 732-204.
28. Plaintiff the State of Rhode Island, represented by and through its Attorney General, is a sovereign state of the United States. Attorney General Peter F. Neronha is the chief legal advisor to the State of Rhode Island and is authorized to pursue this action pursuant to his constitutional, statutory, and common law authority. R.I. Const. art. IX § 12, R.I. Gen. Laws §§ 42-9-1 et seq.
29. Plaintiff the State of Vermont, represented by and through its Attorney General, Thomas J. Donovan, is a sovereign state in the United States of America. The Attorney General
8

is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt. Stat. Ann. tit. 3, §§ 152 and 157.
30. Plaintiff the Commonwealth of Virginia brings this action by and through its Attorney General, Mark R. Herring. The Attorney General has the authority to represent the Commonwealth, its departments, and its agencies in “all civil litigation in which any of them are interested.” Va. Code Ann. § 2.2-507(A).
31. Plaintiff the State of Washington, represented by and through its Attorney General, Robert W. Ferguson, is a sovereign state of the United States of America. The Attorney General is the chief legal adviser to the State of Washington and is authorized to pursue this action pursuant to RCW 43.10.030. The Attorney General’s powers and duties include acting in federal court on matters of public concern.
32. Plaintiff the City of Central Falls is a municipal corporation organized pursuant to the laws of the State of Rhode Island.
33. Plaintiff the City of Chicago is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Illinois.
34. Plaintiff the City of Columbus is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Ohio and the City’s Home Rule Charter.
35. Plaintiff the City of New York is a municipal corporation organized pursuant to the laws of the State of New York. New York City is a political subdivision of the State and derives its powers through the New York State Constitution, New York State laws, and the New York City Charter. New York City is the largest city in the United States by population.
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36. Plaintiff the City of Philadelphia is a municipal corporation organized pursuant to the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law, and the City’s Home Rule Charter.
37. Plaintiff the City of Phoenix is a municipal corporation organized pursuant to the laws of the State of Arizona.
38. Plaintiff the City of Pittsburgh is a municipal corporation organized pursuant to the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law, and the City’s Home Rule Charter.
39. Plaintiff the City of Providence is a municipal corporation organized pursuant to the laws of the State of Rhode Island.
40. Plaintiff the City and County of San Francisco, represented by and through its City Attorney, is a municipal corporation organized and existing under and by virtue of the laws of the State of California, and is a charter city and county.
41. Plaintiff the City of Seattle is a first-class charter city, incorporated under the laws of the State of Washington, empowered to sue and be sued, and represented by and through its elected City Attorney, Peter S. Holmes.
42. Plaintiff Cameron County, Texas is a political subdivision of the State of Texas. 43. Plaintiff El Paso County, Texas is a political subdivision of the State of Texas. 44. Plaintiff Hidalgo County, Texas is a political subdivision of the State of Texas. 45. Plaintiff Monterey County, California is a political subdivision of the State of California.
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46. Plaintiffs are aggrieved by Defendants’ decision and conduct and have standing to bring this action because Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until the challenged decision and conduct are enjoined.
47. Defendant Donald J. Trump is the President of the United States. He is responsible for the actions and decisions that are being challenged by Plaintiffs in this action and is sued in his official capacity.
48. Defendant the United States Department of Commerce is a cabinet agency within the executive branch of the United States government. The Commerce Department is responsible for planning, designing, and implementing the 2020 Census. 13 U.S.C. § 4.
49. Defendant Wilbur L. Ross, Jr. is the Secretary of Commerce. He is responsible for overseeing the Census Bureau, conducting the decennial census of the population, and reporting to the President the tabulation of total population by States for the apportionment of Representatives in Congress. 13 U.S.C. § 141. He is sued in his official capacity.
50. Defendant Bureau of the Census is an agency within, and under the jurisdiction of, the Department of Commerce. 13 U.S.C. § 2. The Census Bureau is responsible for planning and administering the decennial census.
51. Defendant Steven Dillingham is Director of the Census Bureau. He is sued in his official capacity.
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ALLEGATIONS I. Constitutional and statutory background.
A. The Constitution requires apportioning Members of the House of Representatives among the States based on the total number of persons living in each State.
52. The Constitution requires that the Members of the House of Representatives “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3.
53. The number of Representatives apportioned to each State, along with the two Senators given to each State, determines the allocation among the States of electors in the Electoral College. Id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3.
54. To apportion Representatives among the States properly (and ultimately to allocate electors among the States properly) the Constitution requires an “actual Enumeration” of the total population every ten years, id. art. I, § 2, cl. 3.
55. “By its terms, therefore, the Constitution mandates that every ten years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without,” and to use that enumeration of the total population “to apportion Representatives among the states.” New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2019).
56. More than two hundred years of history, practice, and judicial and administrative precedents establish that the apportionment of Representatives must be based on all persons living in each State, regardless of their citizenship or immigration status.
57. During the country’s founding, the Framers debated the proper basis on which to apportion Representatives and declared that Representatives “shall be apportioned among the
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several States which may be included within this Union, according to their respective Numbers.” U.S. Const. art. I, § 2, cl. 3 (emphasis added). The Framers repeatedly made clear that the basis for apportionment of Representatives was thus all persons. For example, as James Madison explained in 1788, the “fundamental principle of the proposed constitution” ensured that “the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants.” The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001).
58. The original Apportionment Clause provided for only two exceptions to the use of total population for apportionment. First, “Indians not taxed” were excluded from the apportionment base. U.S. Const. art. I, § 2, cl. 1, § 3. Second, slaves were counted as only three-fifth of a person. Id. No other exceptions were provided, making clear that all other persons living in the United States needed to be counted by the decennial enumeration and included in the apportionment base.
59. When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats among the States and reaffirmed that apportionment must be based on all persons living in each State—citizens and noncitizens alike. The Framers of the Fourteenth Amendment rejected numerous proposals to change the basis of apportionment from total population to voter population. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 10 (1865) (proposal to apportion representatives among the States “according to their respective legal voters”).
60. Instead, the Framers amended the Constitution to remove the provision that counted slaves as three-fifths of a person and declared that apportionment of Representatives must be based on the “whole number of persons in each State.” U.S. Const. amend. XIV, § 2.
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As the Fourteenth Amendment’s Framers explained, “numbers,” i.e., all persons living in each State, is “the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such . . . is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) (Jacob Howard).
61. Basing apportionment on all persons, the Framers further emphasized, ensured that each State’s representation in the House reflected all persons regardless of whether they could then vote, including women, children, and the “entire immigrant population not naturalized.” Id. at 432 (Rep. John Bingham); see, e.g., id. at 411 (representation based on number of voters improperly “takes from the basis of representation all unnaturalized foreigners” (Rep. Burton Cook)).
62. Since 1790, in accordance with the Constitution’s express requirement to base apportionment on all persons living in each State, the decennial actual enumeration has always counted all persons living in the United States based on where they “usually reside[].” See Census Act of 1790, § 5, 1 Stat. 101 (1790); 2020 Decennial Census Residence Rule and Residence Situations, 80 Fed. Reg, 28,950, 28,950 (May 20, 2015) (“The Census Act of 1790 established the concept of ‘usual residence’ as the main principle in determining where people are to be counted. This concept has been followed in all subsequent censuses.”).
63. Under the Census Bureau’s well-settled practice and a final rule that it promulgated pursuant to notice-and-comment rulemaking for the 2020 Census, usual residence means the place where a person lives and sleeps most of the time. See Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5533 (Feb. 8, 2018).
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64. Accordingly, the decennial enumeration and apportionment base includes all noncitizens who live and sleep most of the time in the United States, regardless of their place of citizenship or immigration status. See, e.g., id. The enumeration likewise counts noncitizens who are “members of the diplomatic community” “at the embassy, consulate, United Nations’ facility, or other residences where diplomats live.” Id.
65. By contrast, noncitizens who are temporarily visiting the United States, such as on a vacation or business trip, are not included in the decennial enumeration and apportionment base because they do not live and sleep most of the time in the United States. See, e.g., id.
66. The millions of undocumented immigrants who do live in the United States have an established presence here. These immigrants have moved to the United States, and they are members of their state and local communities.
67. For example, the Migration Policy Institute has estimated, based on data from 2012 to 2016, that more than nine million undocumented immigrants have lived in the United States for five years or more. The Migration Policy Institute estimated that more than seven million undocumented immigrants have lived in this country for ten years or more, and that nearly four million undocumented immigrants have lived here for twenty years or more.1
68. Undocumented immigrants residing here both contribute to and participate in their communities and in many public programs. For example, millions of undocumented immigrants
1 Migration Policy Institute, Profile of the Unauthorized Population: United States, https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US.
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work here and pay taxes.2 Many undocumented immigrants live here with their family members, including children who are United States citizens.3
69. Based on the Constitution’s text, more than two centuries of history, and well-
settled census practice, the Supreme Court and other courts have repeatedly made clear that the
Fourteenth Amendment requires apportionment of Representatives based on the total number of
all persons living in each State. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 10-18 (1964);
Evenwel v. Abbott, 136 S. Ct. 1120, 1127-29 (2016). Courts have also repeatedly determined
that the “whole number of persons” used to apportion Representatives includes all noncitizens
who are living in the United States regardless of their immigration status. See, e.g., Fed’n for
Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge
court).
70. The federal government, and several of the Defendants here, have conceded that
the decennial enumeration that constitutes the apportionment base must count all persons living
in the United States.
71. For example, on March 14, 2019, Secretary Ross testified under oath during a
congressional committee hearing, stating “The constitutional mandate, sir, for the census is to try
2 See, e.g., Jens Manuel Krogstad et al., Pew Research Center, 5 facts about illegal immigration in the U.S. (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-aboutillegal-immigration-in-the-u-s (estimating that in 2017, the United States’ civilian workforce included 7.6 million undocumented immigrants); American Immigration Council, Adding Up the Billions in Tax Dollars Paid by Undocumented Immigrants 1, https://www.americanimmigrationcouncil.org/sites/default/files/research/adding_up_the_billions _in_tax_dollars_paid_by_undocumented_immigrants.pdf; Hunter Hallman, Bipartisan Policy Center, How do Undocumented Immigrants Pay Federal Taxes? An Explainer (Mar. 28, 2018), https://bipartisanpolicy.org/blog/how-do-undocumented-immigrants-pay-federal-taxes-anexplainer/. 3 Migration Policy Institute, supra (estimating that more than 3 million undocumented immigrants over the age of 15 resided with a citizen child under the age of 18).
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to count every person residing in the U.S. at their place of residence on the dates when the census is conducted.” Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 31 (Mar. 14, 2019) (emphasis added). Secretary Ross further testified that “the Department of Commerce is fully committed to administering as complete and accurate decennial census as we can. We intend to try to count every person taking all necessary actions to do so.” Id. (emphasis added).
72. During a congressional committee hearing in February 2020, Census Bureau Director Dillingham stated that the Bureau will “count everyone, wherever they are living,” including undocumented immigrants. Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 12 (Feb. 12, 2020) (emphasis added).
73. The federal government has repeatedly argued that excluding undocumented immigrants from the decennial enumeration or the apportionment base violates the Constitution and applicable statutes. For example, in Federation for American Immigration Reform v. Klutznick, the government urged a district court to reject claims demanding exclusion of undocumented immigrants from the “whole number of persons” that constitutes the apportionment base. The government explained that “the plain language of the Constitution, as well as the intent of its framers, establishes that all inhabitants, including illegal aliens, must be enumerated for the purpose of apportioning Representatives.”4
74. Similarly, the Department of Justice’s Office of Legislative Affairs has opined that the Constitution requires inclusion of undocumented immigrants in the decennial
4 Defs.’ Mem. of Points & Authorities in Support of Mot. to Dismiss or for Summary Judgment, No. 79-3269 (D.D.C.), reprinted in 1980 Census: Counting Illegal Aliens, Hr’gs Before the S. Subcomm. on Energy, Nuclear Proliferation and Federal Services, 96th Cong. 125-156 (1980).
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enumeration that constitutes the apportionment base. See, e.g., Letter from Carol T. Crawford, Assistant Attorney General, to Senator Jeff Bingham (Sept. 22, 1989).
75. The population count derived from the census is used not only to apportion representatives and ultimately electors “but also to allocate federal funds to the States and to draw electoral districts.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2561 (2019).
76. For these reasons, the “decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs.” Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2481 (1997).
B. The Census Act requires that the total population count used for congressional apportionment include all persons living in the United States.
77. The Constitution provides that an “actual Enumeration shall be made” every ten years “in such manner as [Congress] shall direct by law.” U.S. Const. art. I, § 2. Congress has exercised its authority over the census by enacting various statutory provisions (“Census Act”).
78. Congress has assigned the responsibility of conducting the decennial enumeration to the Secretary of Commerce, and the Secretary may delegate authority for establishing procedures to conduct the census to the Census Bureau. 13 U.S.C. §§ 2, 4, 141.
79. The Census Act requires that the decennial census be taken on April 1, 2020, the “decennial census date.” 13 U.S.C. § 141(a). The Secretary of Commerce has no discretion to delay the decennial census date under the Census Act. Id.
80. Within nine months of the decennial census date, i.e., by January 1, 2021, the Secretary of Commerce must report to the President “[t]he tabulation of total population by States” that is “required for the apportionment of Representatives in Congress among the several States.” Id. § 141(b).
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81. Then, between January 3 and January 8, 2021, the President must transmit to Congress “a statement showing the whole number of persons in each State, excluding Indians not taxed, 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, no State to receive less than one Member.” 2 U.S.C. § 2a(a).
82. Within fifteen days of receiving the President’s statement, the Clerk of the House of Representatives must transmit “to the executive of each State a certificate of the number of Representatives to which such State is entitled.” Id. § 2a(b). II. Defendants’ unlawful attempt to add a citizenship question to the decennial census.
83. Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base are directly related to Secretary Ross’s earlier and unlawful attempt to alter the decennial census that provides the apportionment count by adding a question inquiring about citizenship status.
84. On March 26, 2018, Secretary Ross directed the Census Bureau to use the 2020 Census to demand information on the citizenship status of every resident in the country.5 Secretary Ross stated that he had decided to add the citizenship question because doing so was “necessary to provide complete and accurate data” that would aid enforcement of the Voting Rights Act (VRA) by the Department of Justice.
5 Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of Commerce for Econ. Affairs Karen Dunn Kelley, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire 7 (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files” /2018-03-26_2.pdf.
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85. Many of the plaintiffs here filed a lawsuit challenging the addition of the citizenship question as, among other things, arbitrary and capricious and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). See Second Am. Compl., New York v. U.S. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 210 (S.D.N.Y. filed July 23, 2018).
86. After an eight-day bench trial, the United States District Court for the Southern District of New York vacated Secretary Ross’s decision to add a citizenship question to the 2020 census questionnaire. New York, 351 F. Supp. 3d at 679. In so ruling, the court concluded that the plaintiffs had standing to sue because the inclusion of a citizenship question would deter participation in the census by households with a noncitizen and lead to a differential undercount of noncitizens and Hispanics that would concretely harm plaintiffs in various ways. Id. at 578593. For example, the court found that adding a citizenship question would cause some plaintiffs to lose congressional seats, impair state and local redistricting efforts that rely on census numbers, harm the quality and accuracy of census data, and reduce federal funding to plaintiffs’ jurisdictions. Id. at 593-98, 607-15.
87. The court also determined that Secretary Ross’s decision violated the Administrative Procedure Act for several reasons, including because his rationale for adding the citizenship question was pretextual. Id. at 660-64. As the court explained, the evidence was “clear that Secretary Ross’s rationale was pretextual—that is, that the real reason for his decision [to add the citizenship question] was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Id. at 660. The court noted that it was “unable to determine—based on the existing record, at least—what Secretary Ross’s real reasons for adding the citizenship question were.” Id. at 569-70.
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88. The Supreme Court granted certiorari before judgment and affirmed, in relevant part, the district court’s final judgment setting aside the Secretary’s decision to add a citizenship question. The Supreme Court held that “the Secretary’s decision must be set aside because it rested on a pretextual basis.” Dep’t of Commerce, 139 S. Ct. at 2573. The Court reasoned that the Secretary’s decision “cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA” because there was “a significant mismatch between the decision the Secretary made and the rationale he provided.” Id. at 2575. In short, Secretary Ross’s “VRA enforcement rationale—the sole stated reason—seems to have been contrived.” Id.
89. After the Supreme Court remanded the case to the district court, the court entered a permanent injunction that enjoined the defendants “from including a citizenship question on the 2020 decennial census questionnaire; from delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019 for the purpose of including a citizenship question; and from asking persons about citizenship status on the 2020 census questionnaire or otherwise asking a citizenship question as part of the 2020 decennial census.” Order, New York v. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 634 (S.D.N.Y. July 16, 2019).
90. On July 11, 2019, President Trump issued an Executive Order to “ensure that accurate citizenship data is compiled in connection with the census” notwithstanding the Supreme Court’s decision and the district court’s order precluding the use of a citizenship question in the 2020 Census. Collecting Information About Citizenship Status in Connection with the Decennial Census, Exec. Order 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019).
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91. To achieve that goal, President Trump directed all executive departments and agencies to provide to the Department of Commerce “the maximum assistance permissible, consistent with law, in determining the number of citizens and noncitizens in the country.” Id.
92. In a public statement accompanying the issuance of the Executive Order, given from the White House’s Rose Garden, President Trump made clear that the federal government would not be “backing down on our effort to determine the citizenship status of the United States population.” President Donald Trump, Remarks by President Trump on Citizenship and the Census (July 19, 2018), https://www.whitehouse.gov/briefings-statements/remarks-presidenttrump-citizenship-census/. President Trump stated that “[t]here used to be a time when you could proudly declare, ‘I am a citizen of the United States.’ Now they’re trying to erase the very existence of a very important word and a very important thing: citizenship.” Id.
93. President Trump further stated that, pursuant to the Executive Order, the federal government will be taking steps “to ensure that citizenship is counted so that we know how many citizens we have in the United States.” Id. III. The July 21, 2020 Memorandum directing exclusion of undocumented immigrants
from the apportionment count. 94. Recent events have now laid bare the real reasons driving Secretary Ross’s decision to add a citizenship question to the 2020 Census: to exclude undocumented persons from the “whole number of persons” that constitutes the apportionment base and to discriminate against Hispanics and noncitizens. 95. On July 21, 2020, President Trump issued a memorandum (i) declaring that undocumented immigrants will be excluded from the “whole number of persons in each State” enumerated by the 2020 Census and used to apportion the number of Representatives to each State, and (ii) directing the Secretary to take “all appropriate action” to provide the President
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with information to exclude undocumented immigrants from the apportionment base. Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1).
96. The Memorandum declares 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible.” Id. at 44,680.
97. The Memorandum asserts that the Executive branch has purported “discretion” to exclude from the apportionment base all undocumented immigrants who reside in the United States, id. at 44,679—no matter how long they have been living here.
98. The Memorandum acknowledges that the Constitution explicitly requires apportionment of Representatives based on the “whole number of persons in each State.” Id. It states that not every person who is physically present on the decennial census date is living in the United States. Id. For example, the Memorandum states, noncitizens who are temporarily visiting on vacation or for business are not “inhabitants” of the United States and are thus not included in the apportionment base. Id. Without any plausible basis, the Memorandum then asserts that purported “discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status”—even if those persons have been living in the United States for many years. Id.
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99. In the Memorandum, President Trump targets States (including some of the plaintiff States) that have many undocumented immigrants living in their jurisdictions or that have declined to affirmatively assist the federal government’s immigration enforcement efforts.
100. For example, President Trump stated that “[a]ffording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.” Id. at 44,680. The Memorandum further stated that States that decline to adopt state laws or policies to assist federal efforts to enforce the immigration laws passed by Congress should essentially be stripped of any “representation in the House of Representatives” that is based on undocumented immigrants living in their jurisdictions. Id.
101. The Memorandum requires Secretary Ross, in preparing his § 141(b) report of the actual enumeration on which apportionment must be based, to take actions “to provide information” to the President to exclude undocumented immigrants from apportionment. Id. The Memorandum thus directs the Secretary (and by extension the Commerce Department and Census Bureau) to take actions to enable the President to exclude undocumented immigrants from his § 2a(a) report of both the “whole number of persons in each State” and the corresponding number of Representatives that each State receives. Id.
102. On the same day that he issued the Memorandum, President Trump issued a public statement making clear that Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base are a continuation of the federal government’s prior unlawful attempt to add a citizenship question to the 2020 Census. President Donald Trump,
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Statement from the President Regarding Apportionment (July 21, 2020), https://www.whitehouse.gov/briefings-statements/statement-president-regarding-apportionment/.
103. As President Trump’s statement explained, he had previously asserted during his Rose Garden statements in July 2019 that he “would not back down in [his] effort to determine the citizenship status of the United States population.” Id. He further explained that he was now following “through on that commitment by directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.” Id. Echoing his earlier statements about the citizenship question, Trump further asserted that “[t]here used to be a time when you could proudly declare, ‘I am a citizen of the United States’” and that “the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country.” Id. He stated that his Memorandum directing exclusion of undocumented immigrants from the apportionment base responds to a purported “broader left-wing effort to erode the rights of Americans citizens.” Id.
104. Upon information and belief, following receipt of the Memorandum, the Secretary or Department of Commerce has issued (or will imminently issue) directives to the Census Bureau, constituting final agency action, to implement President Trump’s directive to exclude noncitizens from the enumeration and apportionment base. IV. Defendants’ decision to exclude undocumented immigrants from the apportionment
base is motivated by discriminatory animus toward Hispanics and immigrant communities of color. 105. The Memorandum explicitly states that its goal is to reduce political influence and congressional representation to jurisdictions with a larger share of undocumented immigrants. 85 Fed. Reg. at 44,680. 106. President Trump has repeatedly articulated concerns about the growth of immigrant communities and the impact of that growth on political power, and has sought to
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minimize the power of Hispanic and immigrant communities to increase the power of nonHispanic whites.
107. During the 2016 presidential campaign, for example, President Trump tweeted: “How crazy—7.5% of all births in U.S. are to illegal immigrants, over 300,000 babies per year. This must stop.”6
108. On April 5, 2018, when discussing his opposition to family-based immigration systems, President Trump claimed that Democrats favor “chain migration” because the party believes the immigrants will “vote Democratic.” Three weeks later, on April 28, President Trump revisited this topic, stating that Democrats favor undocumented immigration because “all of these people that are pouring across are going to vote for Democrats, they’re not going to vote for Republicans.”7
109. Defendants’ exclusion of undocumented immigrants from the apportionment base is of a piece with President Trump’s anti-immigrant and anti-Hispanic rhetoric and his Administration’s targeting of immigrant and Hispanic communities, which reflect animus towards those groups.
110. President Trump has long engaged in rhetoric that disparages Hispanics and immigrants of color. In statements stretching back to the beginning of his campaign, President Trump has repeatedly dehumanized, devalued, and vilified immigrants in general, and specifically immigrants from Latin America. For instance:
6 Donald Trump (@realDonaldTrump), Twitter (Aug. 21, 2015 6:56 AM), https://twitter.com/realdonaldtrump/status/634725641972248576. 7 Fox News (@FoxNews), Twitter (Apr. 28, 2018), https://twitter.com/foxnews/status/990383288232620032.
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a. During his campaign launch in June 2015, President Trump claimed that “[w]hen Mexico sends its people. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.”8
b. During a meeting about recent immigrants in the Oval Office in June 2017, President Trump stated that 15,000 immigrants from Haiti “all have AIDS” and that 40,000 immigrants from Nigeria would never “go back to their huts” in Africa after seeing the United States.9
c. During a January 2018 meeting with lawmakers, while discussing protections for immigrants from Haiti, El Salvador and other African countries, President Trump asked why the United States is “having all these people from shithole countries come here” and suggested that the United States should have more immigrants from countries like Norway.10
8 Full text: Donald Trump announces a presidential bid, Wash. Post, June 16, 2015, https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid/. 9 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017, https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. 10 Ali Vitali, Kasie Hunt & Frank Thorp V, Trump referred to Haiti and African nations as ‘shithole’ countries, Jan. 12, 2018, https://www.nbcnews.com/politics/white-house/trumpreferred-haiti-african-countries-shithole-nations-n836946.
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d. In a May 16, 2018 speech, President Trump stated that “[w]e have people coming into the country, or trying to come in . . . . You wouldn’t believe how bad these people are. These aren’t people, these are animals.”11
e. Speaking on the topic of migrant groups travelling to the United States from Central America at a rally on May 8, 2019, President Trump, stated, “[W]hen you see these caravans starting out with 20,000 people, that’s an invasion.”12
111. President Trump has acted on this rhetoric by adopting policies that seek to isolate, exclude, and instill fear in Hispanic immigrants and other immigrants of color. For instance, the Trump Administration has:
a. Attempted to rescind the Deferred Action for Childhood Arrivals program, which protected 800,000 individuals, 90% of whom were Hispanic and 80% of whom were Mexican-American;
b. Banned travel from several majority-Muslim countries; c. Suspended refugee admissions to the United States; d. Terminated special protections from removal for migrants from nations
experiencing war and natural disasters, including Nicaragua, Honduras, Haiti and El Salvador;
11 Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times, May 16, 2018, https://www.nytimes.com/2018/05/16/us/politics/trump-undocumentedimmigrants-animals.html. 12 President Trump Holds Rally in Panama City Beach, Florida, C-SPAN (May 8, 2019) (video), https://www.c-span.org/video/?460412-1/president-trump-holds-rally-panama-city-beach-florida.
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e. Increased actual and threatened raids and deportations of undocumented migrants, including, as recently as June 17, 2019, when President Trump tweeted a threat that “[n]ext week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in”;13
f. Attempted to build a physical wall along the Mexico-U.S. border; g. Adopted policies of separating children from their families when entering the
United States from Mexico, and detaining children separate from their parents and families thereafter; and h. Maintained children and other migrants across the U.S.-Mexico border in detention facilities that the United Nations Children’s Fund has described as “dire” and as causing “irreparable harm” to children housed in them.14 112. These public statements and actions from Defendant Trump establish that the rationale for excluding undocumented immigrants from the apportionment base is motivated by racial animus against immigrants of color, and a desire to curb the political power of immigrant communities of color.
13 Nick Miroff & Maria Sacchetti, Trump vows mass immigration arrests, removals of ‘millions of illegal aliens’ starting next week, Wash. Post, June 17, 2019, https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removalsof-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb74e6b2b46f6a_story.html?utm_term=.ece5e6a6b7e6. 14 After Rio Grande tragedy, UNICEF chief highlights “dire” detention centres on US-Mexico border, UN News (June 27, 2019), https://news.un.org/en/story/2019/06/1041421.
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V. Plaintiffs are harmed by Defendants’ decision to exclude undocumented immigrants from the apportionment base. 113. Defendants’ decision and actions to exclude undocumented immigrants from the
apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests because they will cause some Plaintiffs to lose congressional seats and decrease their share of presidential electors in the Electoral College; skew the division of electoral districts within Plaintiffs’ jurisdictions by impairing state and local redistricting efforts that rely on the census count; reduce federal funds to Plaintiffs’ jurisdictions by deterring immigrants from responding to the decennial census that is currently underway; and degrade the quality of census data that Plaintiffs rely on to perform critical governmental functions.
114. First, excluding undocumented immigrants from the apportionment count will likely cause several States to lose one or more Representatives in Congress, directly harming those Plaintiff States, as well as those Plaintiff counties and cities within affected States, by diluting their political power and undermining their interest in fair congressional representation.
115. For example, large numbers of undocumented immigrants reside in California, Texas, New York, New Jersey, and Illinois.15 Defendants’ decision to exclude undocumented immigrants from the apportionment count is likely to directly reduce representation for those jurisdictions in Congress, injuring the representational interests of Plaintiffs the State of New York, State of New Jersey, State of Illinois, City of Chicago, City of New York, City and County of San Francisco, Cameron County, El Paso County, Hidalgo County, and Monterey County.
15 Pew Research Center, November 27, 2018, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, https://www.pewresearch.org/hispanic/wpcontent/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-UnauthorizedImmigrants-Total-Dips_Updated-2019-06-25.pdf.
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Other Plaintiffs may also suffer direct representational harms if undocumented individuals are excluded from the apportionment count.
116. The Memorandum itself acknowledges and intends these harms. See 85 Fed. Reg. at 44,680 (recognizing that excluding undocumented immigrants will “result in the allocation” of fewer congressional seats “than would otherwise be allocated” to some states).
117. The loss of a congressional seat will also cause the affected Plaintiff States, counties, and cities to lose one or more votes in the Electoral College, impairing their ability to elect the President and Vice President and harming their political power.
118. Second, excluding undocumented immigrants from the apportionment base will harm Plaintiffs’ representational interests by directly impairing Plaintiffs’ ability to draw accurate districting lines for congressional, state, or local legislative districts.
119. To comply with the Fourteenth Amendment’s one-person, one-vote requirement, States must use total population as the population base for congressional redistricting. Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (describing “our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives”); see Evenwel, 136 S. Ct. at 1129. Defendants’ decision to exclude undocumented immigrants from the apportionment base will undermine Plaintiff States’ ability to comply with this Constitutional mandate.
120. Certain Plaintiffs are required by state constitutional or statutory provisions to use the total population count from the decennial census as the basis for redistricting within their jurisdictions. New York state law provides, for example, that “each federal census taken decennially . . . shall be controlling as to the number of inhabitants in the state or any part thereof for the purposes of the apportionment of members of assembly and readjustment or alteration of
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senate and assembly districts.” N.Y. Const. art. III, § 4(a); see also id. §§ 3-5, 5-a. Many of the other Plaintiffs have comparable laws.16
121. Third, excluding undocumented immigrants from the apportionment base will deprive Plaintiffs of critical federal funding and inflict substantial financial harms on Plaintiffs.
122. Political science literature establishes that States that lose seats in Congress typically see a decrease in their share of federal outlays in subsequent years due to the reduction in their voting power in Congress. See, e.g., Roy Elis, Neil Malhotra, & Marc Meredith, Apportionment Cycles as Natural Experiments, Political Analysis 358-76 (2009). Those Plaintiffs likely to lose representation in Congress therefore also stand to lose critical federal resources as a result.
123. All Plaintiffs will further suffer financial harm because Defendants’ decision to exclude undocumented immigrants from the apportionment base will deter participation in the ongoing decennial census, undermining the Census Bureau’s efforts to count immigrants and their families, and depriving Plaintiffs of their fair share of census-derived federal funds.
124. Plaintiffs are home to some of the hardest-to-count communities in the nation, including significant populations of authorized and undocumented immigrants.17 Many of these immigrants live in mixed-status families, with U.S. citizen children, siblings, or spouses. These
16 See, e.g., Chicago Municipal code § 2-8-300; D.C. Code § 1-1011.01; Mass. Const. Amend. art. CI, §§ 1, 2, arts. CIX, CXVII, CXIX; Nev. Const. art. IV, § 5, art. XV, § 13; Tex. Const. art. 3, § 26; Va. Code Ann. § 30-265; Vt. Const. Ch. II, §§ 13, 18, 73; Vt. Stat. tit. 17, § 1902; Wash. Const. art. II, § 43; Wash. Rev. Code §§ 29A.76.010, 44.05.090. 17 Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, Pew Research Center (Nov. 27, 2018), https://www.pewresearch.org/hispanic/wpcontent/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-UnauthorizedImmigrants-Total-Dips_Updated-2019-06-25.pdf.
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households are already less likely to respond to the census questionnaire; this Administration’s ongoing efforts to target immigrants—including Defendants’ failed efforts to add a citizenship question to the decennial census—have engendered substantial fear within these communities.18
125. The COVID-19 pandemic has further hampered efforts to ensure that all people— including hard-to-count populations—are counted. For example, the census relies upon nonresponse follow up operations (NRFU) to contact potential respondents and increase the census response rate. But NRFU operations were suspended and delayed during the pandemic, and the Government Accountability Office has raised concerns that even when resumed, these efforts will be less effective in light of the virus.19
126. Defendants’ decision to exclude undocumented immigrants from the apportionment base was announced just weeks before Census Bureau enumerators were finally scheduled to go into the field to encourage households to respond to the census,20 creating confusion and further increasing the risk of an undercount.
18 See, e.g., Alexandra Schmidt, Citizenship question is gone. Michigan immigrants still distrust the Census, (Mar. 2, 2020), https://www.bridgemi.com/michigan-government/citizenshipquestion-gone-michigan-immigrants-still-distrust-census (noting ongoing “fear among immigrants about what the government will do with information collected in the count”). 19 See U.S. Government Accountability Office, 2020 Census: COVID-19 Presents Delays and Risks to Census Count https://www.gao.gov/products/GAO-20-551R#summary. 20 U.S. Census Bureau, 2020 Census Operational Adjustments Due to COVID-19, https://2020census.gov/en/news-events/operational-adjustments-covid-19.html (last visited July 24, 2020).
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127. The announcement of Defendants’ decision was intended to promote fear and deter participation in the census by immigrants and their families, including through the President’s remarks that he “will not stand” for efforts to “conceal the number” of immigrants.21
128. The Census Bureau has repeatedly emphasized that “[e]veryone counts,” citizens and noncitizens alike.22 But Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base do the opposite. Excluding undocumented immigrants from the apportionment count communicates to immigrants that their census responses are less valuable and less important than those of citizens.
129. Many federal programs rely on the population figures collected in the decennial census to distribute federal funds among states and local governments. At least 320 federal domestic financial assistance programs rely on census data to allocate money; in fiscal year 2016, these programs “allocated about $900 billion using census-derived data.” New York, 351 F. Supp. 3d at 596. These programs support essential services for Plaintiffs, including healthcare, public education, social services, and infrastructure development. The reduction in census participation caused by Defendants’ announcement that they will exclude undocumented immigrants from the apportionment base will harm Plaintiffs by depriving them of their statutory fair share of federal funding and removing crucial resources for important government services.
130. Finally, by deterring immigrants and their families from responding to the decennial census, Defendants’ decision to exclude undocumented immigrations from the apportionment base will degrade the quality of census data. As census self-response rates
21 President Donald Trump, Statement from the President Regarding Apportionment (July 21, 2020), https://www.whitehouse.gov/briefings-statements/statement-president-regardingapportionment/. 22 See, e.g., Census Bureau, Setting the Record Straight, https://2020census.gov/en/newsevents/rumors.html.
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decline, the quality of the data—including information relating to population subgroups and their characteristics—worsens. But Plaintiffs “rely on accurate data to perform essential governmental functions,” including to draw school zones, deploy health care resources, and make infrastructure decisions. Id. at 600. Defendants’ decision will therefore undermine Plaintiffs’ interests in using accurate census data to perform critical governmental functions. VI. Defendants have not identified any reliable method to accurately enumerate the
population of undocumented immigrants. 131. Defendants cannot reliably exclude undocumented immigrants from the apportionment count. Just months ago, the Federal Government represented in separate litigation that there is a “lack of accurate estimates of the resident undocumented population” on a stateby-state basis.23 132. Although a previous executive order suggests that the Census Bureau may rely on administrative records to identify noncitizens, see 84 Fed. Reg. at 33,821, many noncitizens are lawfully present; and administrative records cannot provide sufficiently reliable or accurate information about whether noncitizens are undocumented, particularly for actual enumeration and apportionment purposes. Indeed, administrative records are “weak in their coverage of undocumented aliens because programs typically require documentation that many undocumented aliens do not have.”24 The limited administrative records available with respect to undocumented immigrants are incomplete, outdated, and often inaccurate.
23 Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1) Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv00772-RDP (N.D. Ala. Mar. 13, 2020). 24 John L. Czajka, Can Administrative Records Be Used to Reduce Nonresponse Bias?, 645 Annals Am. Acad. Pol. & Social Sci. 171, 175 (2013).
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133. For example, the Department of Homeland Security (DHS) recently acknowledged that determining immigration status from their records is “challenging,” given the “the decentralized nature of admission and immigration information, as well as the lack of a nationwide departure control system.”25 DHS has acknowledged that time lags between collecting and reporting data mean that “data accuracy issues may arise.”26 Even when used in combination, existing administrative records are inadequate to ascertain reliably whether individuals are undocumented.
134. Although the federal government has already suggested that they may resort to “statistical modeling” to estimate the undocumented population in furtherance of the Presidential Memorandum, the Census Bureau has not yet “formulated a methodology,”27 and Defendants have not articulated how such statistical modeling will comport with their constitutional obligation to conduct an “actual Enumeration.” U.S. Const. art. 1, § 2, cl. 3.
135. Despite Defendants’ failure to identify any reliable method to accurately enumerate the population of undocumented immigrants, Defendants have already decided to report that population to the President and to exclude that population from the tabulation of total population reported to Congress. Defendants’ commitment to proceeding on this course of action without regard to the unreliability or inaccuracy of their underlying enumeration demonstrates that they have prejudged the decision, violates their statutory obligations to report
25 Department of Homeland Security, Privacy Impact Assessment for the Department of Homeland Security Immigration-Related Information Sharing with the U.S. Census Bureau, 2, 11 (Dec. 20, 2019), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs079sharingwithcensus-december2019.pdf. 26 Id. at 6. 27 Hansi Lo Wang (@hansilowang), Twitter (July 22, 2020, 10:58 AM), https://twitter.com/hansilowang/status/1285952274410409985.
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total population, and confirms the irrational and arbitrary nature of their decision and actions to exclude undocumented immigrants from the actual enumeration and apportionment base.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (U.S. Constitution article I, section 2, clause 3; U.S. Constitution amend. XIV, sec. 2) 136. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 137. The Constitution requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3. 138. Undocumented immigrants are persons. Plyler, 457 U.S. at 210 (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”). 139. Defendants’ decision to exclude undocumented immigrants from the apportionment base for the purpose of reapportionment of Representatives following the 2020 Census, as well as any action they take to implement or further that decision, violates the constitutional command to apportion Representatives “counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. 140. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. SECOND CLAIM FOR RELIEF (U.S. Constitution amend. V—Due Process Clause) 141. Plaintiff States incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint.
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142. Under the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution, the federal government cannot deny to any person the equal protection of its laws. The Due Process Clause specifically prohibits the federal government from discriminating against individuals on the basis of race, ethnicity, and national origin. U.S. Const. amend. V.
143. Defendants’ decision to exclude undocumented immigrants from the apportionment base is motivated by discriminatory animus toward Hispanics and immigrant communities of color. This animus is reflected in Defendants’ repeated statements vilifying these communities.
144. The highly unusual chronology of events, sharp departure from centuries of past practice, articulation of a pretextual reason for Defendants’ now-enjoined efforts to demand citizenship information on the decennial census questionnaire, and disproportionate burden of Defendants’ decision on Hispanics and immigrant communities of color further indicate that Defendants’ decision is motivated by unconstitutional discriminatory purpose.
145. By excluding undocumented immigrants from the apportionment base, Defendants intend to reduce political power, influence, and funding resources among Hispanic and immigrant communities as compared to non-Hispanic whites.
146. Defendants’ violation causes ongoing harm to Plaintiff States and their residents. THIRD CLAIM FOR RELIEF (U.S. Constitution amend. X)
147. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint.
148. The Tenth Amendment prohibits the federal government from coercing states and localities to legislate or promote policies that capitulate to federal interests.
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149. Defendants’ decision to exclude undocumented immigrants from the apportionment count punishes Plaintiffs for refusing to assist in the enforcement of federal immigration law, in an attempt to coerce Plaintiffs to change their policies. 85 Fed. Reg. at 44,680.
150. The Tenth Amendment requires the federal government to respect the equal sovereignty of the sovereign states.
151. Without adequate justification, Defendants’ decision to exclude undocumented immigrants from the apportionment count impermissibly targets certain states for unfavorable treatment because of their refusal to assist in the enforcement of federal immigration law. 85 Fed. Reg. at 44,680.
152. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. FOURTH CLAIM FOR RELIEF
(Administrative Procedure Act, 5 U.S.C. § 706) 153. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 154. The Administrative Procedure Act provides that the Court “shall” “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 155. Defendants’ decision to exclude undocumented immigrants from the apportionment base, as well as any action they take to implement or further that decision, is arbitrary and capricious because it is contrary to the evidence before the agency and fails to consider important aspects of the problem, including that Defendants lack data reliably to exclude undocumented immigrants from the apportionment base.
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156. Defendants’ decision and any implementing actions they undertake are also not in accordance with law because the Census Act requires the Secretary to tabulate and report to the President a tabulation of “total population by States . . . as required for apportionment of Representatives in Congress.” 13 U.S.C. § 141(b).
157. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court: 1. Declare that Defendants’ decision to exclude undocumented immigrants from the apportionment base following the 2020 Census, as well as any action they take to implement or further that decision, is unauthorized by and contrary to the Constitution and laws of the United States; 2. Declare that Defendants’ decision to exclude undocumented immigrants from the apportionment base following the 2020 Census is intentionally discriminatory in violation of the equal protection component of the Due Process Clause of the Fifth Amendment; 3. Declare that Defendants’ decision and any implementing actions they take are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A); 4. Enjoin Defendants and all those acting on their behalf from excluding undocumented immigrants from the apportionment base following the 2020 Census, or taking any action to implement or further such a policy; 5. Issue an order holding unlawful, vacating, and setting aside the decision to exclude undocumented immigrants from the apportionment base, as well as any action taken to implement or further that decision;
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6. Issue a writ of mandamus compelling the Secretary of Commerce to tabulate and report to the President the total population by States under 13 U.S.C § 141(b) based solely on the total number of persons in each State, including undocumented immigrants, without providing any information about the number of undocumented immigrants in each State.
7. Issue a writ of mandamus compelling the President to transmit to Congress pursuant to 2 U.S.C. § 2a(a) a statement of the whole number of persons in each State, 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, based on the total number of residents of each state, including undocumented immigrants.
8. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees; and
9. Grant such other and further relief as the Court deems just and proper.

DATED: July 24, 2020
Steven C. Wu Deputy Solicitor General
Judith N. Vale Senior Assistant Solicitor General
Of Counsel

Respectfully submitted,
LETITIA JAMES Attorney General of the State of New York
By: /s/ Matthew Colangelo Matthew Colangelo
Chief Counsel for Federal Initiatives Elena Goldstein
Deputy Chief, Civil Rights Bureau Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6057 Matthew.Colangelo@ag.ny.gov
Attorneys for the State of New York

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PHILIP J. WEISER Attorney General of the State of Colorado
By: /s/ Eric R. Olson Eric R. Olson,* Solicitor General Office of the Attorney General Colorado Department of Law 1300 Broadway, 10th Floor Denver, CO 80203 Phone: (720) 508-6548 eric.olson@coag.gov
Attorney for the State of Colorado
KATHLEEN JENNINGS Attorney General of Delaware
By: /s/ Vanessa L. Kassab Christian Douglas Wright Director of Impact Litigation Vanessa L. Kassab Deputy Attorney General Delaware Department of Justice 820 N. French Street, 5th Floor Wilmington, DE 19801 Phone: (302) 577-8600 vanessa.kassab@delaware.gov
Attorneys for the State of Delaware

WILLIAM TONG Attorney General of Connecticut
By: /s/ Joshua Perry Joshua Perry Special Counsel for Civil Rights Office of the Attorney General 165 Capitol Avenue Hartford, CT 06106 Phone: (860) 808-5020 Joshua.Perry@ct.gov
Attorney for the State of Connecticut
KARL A. RACINE Attorney General for the District of Columbia
By: /s/ Kathleen Konopka Kathleen Konopka
Deputy Attorney General Brendan B. Downes* James Graham Lake
Assistant Attorneys General Public Advocacy Division Office of the Attorney General 441 4th Street NW Suite 600 South Washington, DC 20001 Phone: (202) 724-6610 Fax: (202) 741-0444 Kathleen.Konopka@dc.gov
Attorneys for the District of Columbia

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CLARE E. CONNORS Attorney General of the State of Hawai‘i
/s Nicholas M. McLean Nicholas M. McLean
Deputy Solicitor General Department of the Attorney General State of Hawai‘i 425 Queen Street Honolulu, HI 96813 (808) 586-1360 nicholas.mclean@hawaii.gov
Attorney for the State of Hawai‘i

KWAME RAOUL Attorney General of the State of Illinois
/s Jeffrey J. VanDam Jeffrey J. VanDam, Public Interest Counsel Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Tel. (312) 814-3400 Fax (312) 814-3212 jvandam@atg.state.il.us
Attorney for the State of Illinois

BRIAN E. FROSH Attorney General of the State of Maryland
/s Andrea Trento Andrea Trento, Assistant Attorney General Civil Litigation Division Maryland Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 atrento@oag.state.md.us Phone: (410) 576-6472
Attorney for the State of Maryland

MAURA HEALEY Attorney General of the Commonwealth of Massachusetts
/s Ann E. Lynch Ann E. Lynch* Miranda M. Cover*
Assistant Attorneys General Public Protection & Advocacy Bureau Massachusetts Attorney General’s Office One Ashburton Place Boston, MA 02108 ann.lynch@mass.gov mercy.cover@mass.gov Phone: (617) 727-2200 Fax: (617) 727-5762
Attorneys for the Commonwealth of Massachusetts

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DANA NESSEL Attorney General of the State of Michigan
/s/ Christina M. Grossi Christina M. Grossi (P67482) Assistant Attorney General Michigan Department of Attorney General 525 W. Ottawa Street Lansing, MI 48934 GrossiC@michigan.gov
Attorney for the State of Michigan

KEITH ELLISON Attorney General of the State of Minnesota
/s/ Jacob Campion Jacob Campion,* Assistant Attorney General Office of the Minnesota Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 jacob.campion@ag.state.mn.us (tel) 651-757-1459 (fax) 651-282-5832
Attorney for the State of Minnesota

AARON D. FORD Attorney General of the State of Nevada
By: /s/ Heidi Parry Stern Heidi Parry Stern, Solicitor General Office of the Nevada Attorney General 555 E. Washington Ave., Ste. 3900 Las Vegas, NV 89101 (775) 684-1136 HStern@ag.nv.gov
Attorney for the State of Nevada

GURBIR S. GREWAL Attorney General of the State of New Jersey
By: /s/ Mayur P. Saxena Mayur P. Saxena, Assistant Attorney General Marie Soueid, Deputy Attorney General Office of the Attorney General 25 Market Street Trenton, NJ 08625 Phone: (609) 376-2564 Marie.Soueid@law.njoag.gov
Attorneys for the State of New Jersey

HECTOR BALDERAS Attorney General of New Mexico
By: /s/ Tania Maestas Tania Maestas Chief Deputy Attorney General P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508 tmaestas@nmag.gov
Attorney for the State of New Mexico, by and through Attorney General Hector Balderas

JOSHUA H. STEIN Attorney General of the State of North Carolina
By: /s/ Sripriya Narasimhan Sripriya Narasimhan* Deputy General Counsel North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 SNarasimhan@ncdoj.gov Tel. (919) 716-6421

Attorney for the State of North Carolina

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ELLEN F. ROSENBLUM Attorney General of the State of Oregon
/s Brian de Haan Brian de Haan, Assistant Attorney General Trial Attorney Tel. (971) 673-1880 Fax (971) 673-5000 brian.a.dehaan@doj.state.or.us
Attorney for the State of Oregon

JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania
Michael J. Fischer Chief Deputy Attorney General
/s Aimee D. Thomson Aimee D. Thomson Jacob B. Boyer Deputy Attorneys General 1600 Arch Street, Suite 300 Philadelphia, PA 19103 athomson@attorneygeneral.gov Tel. (267) 940-6696
Attorneys for the Commonwealth of Pennsylvania

PETER F. NERONHA

THOMAS J. DONOVAN, JR.

Attorney General of the State of Rhode Island Attorney General of the State of Vermont

/s Justin J. Sullivan Justin J. Sullivan*, Special Assistant Attorney General Office of the Rhode Island Attorney General 150 South Main St. Providence, RI 02903 Phone: (401) 274-4400, ext. 2007 Fax: (401) 222-2995 jjsullivan@riag.ri.gov
Attorneys for the State of Rhode Island

/s Benjamin D. Battles Benjamin D. Battles, Solicitor General Julio A. Thompson*
Assistant Attorney General, Civil Rights Unit Office of the Vermont Attorney General 109 State Street Montpelier, VT 05609 Benjamin.Battles@vermont.gov Tel. (802) 828-5500 Fax (802) 828-3187
Attorneys for the State of Vermont

45

MARK R. HERRING Attorney General of the Commonwealth of Virginia
/s Michelle S. Kallen Michelle S. Kallen,* Deputy Solicitor General 202 North Ninth Street Richmond, VA 23219 MKallen@oag.state.va.us Tel. (804) 786-7704 Fax (804) 371-0200

ROBERT W. FERGUSON Attorney General of the State of Washington
/s/ Laura K. Clinton Laura K. Clinton* Assistant Attorney General Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 LauraC5@atg.wa.gov (206) 233-3383

Attorneys for the Commonwealth of Virginia

Peter Gonick, Deputy Solicitor General Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 peterg@atg.wa.gov Tel. (360) 753-6245

Attorneys for the State of Washington

MATTHEW JERZYK City Solicitor for the City of Central Falls
/s Matthew Jerzyk Matthew Jerzyk* City Solicitor City of Central Falls 580 Broad Street Central Falls, RI 02863 MJerzyk@CentralFallsRI.us Tel. (401) 727-7422

MARK A. FLESSNER Corporation Counsel of the City of Chicago
/s Stephen J. Kane Stephen J. Kane,* Deputy Corporation Counsel Rebecca Hirsch,* Assistant Corporation Counse City of Chicago Law Department 121 North LaSalle Street, Room 600 Chicago, IL 60602 Stephen.kane@@cityofchicago.org Rebecca.hirsch2@cityofchicago.org Tel. (312) 744-8143

46

ZACH KLEIN Columbus City Attorney
/s Richard N. Coglianese Richard N. Coglianese,* Assistant City Attorney Lara N. Baker-Morrish,* Assistant City Attorney 77 North Front Street, 4th Floor Columbus, Ohio 43215 rncoglianese@columbus.gov lnbaker-morrish@columbus.gov (tel) 614-645-7385 (fax) 614-645-6949

JAMES E. JOHNSON Corporation Counsel of the City of New York
/s Aaron Bloom Aaron Bloom Joseph Pepe Tonya Jenerette 100 Church Street New York, NY 10007 abloom@law.nyc.gov Tel. (212) 356-4055

MARCEL S. PRATT Solicitor of the City of Philadelphia
/s Marcel S. Pratt Marcel S. Pratt,* City Solicitor Diana P. Cortes*
Chair, Litigation Group Eleanor N. Ewing,* Chief Deputy Solicitor Benjamin H. Field*
Divisional Deputy City Solicitor Michael W. Pfautz, Assistant City Solicitor City of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19102 marcel.pratt@phila.gov Tel. (215)683-5000 Fax (215)683-5299

OFFICE OF THE PHOENIX CITY ATTORNEY Cris Meyer, City Attorney
/s Patricia J. Boland Patricia J. Boland* Assistant Chief Counsel City of Phoenix Law Department 200 West Washington, Suite 130 Phoenix, AZ 85003-1611 Patricia.Boland@phoenix.gov Tel. (602) 262-6761

47

YVONNE S. HILTON City Solicitor of the City of Pittsburgh

JEFFREY DANA City Solicitor for the City of Providence

/s Emily C. McNally Emily C. McNally,* Assistant City Solicitor Michael E. Kennedy, Associate City Solicitor City of Pittsburgh Law Department 414 Grant Street 313 City-County Building Pittsburgh, PA 15219 Tel. (412)255-2613 Fax. (412)255-0711 emily.mcnally@pittsburghpa.gov

/s Jeffrey Dana Jeffrey Dana,* City Solicitor City of Providence 444 Westminster Street Providence, RI 02903 JDana@providenceri.gov 401-680-5333

DENNIS J. HERRERA

CITY OF SEATTLE

City Attorney for the City and County of San City of Seattle City Attorney

Francisco

/s Peter S. Holmes

/s Dennis J. Herrera

Peter S. Holmes,* City Attorney

Dennis J. Herrera,* City Attorney

Erica R. Franklin, Assistant City Attorney

Jesse C. Smith, Chief Assistant City Attorney Ghazal Sharifi, Assistant City Attorney

Ronald P. Flynn, Chief Deputy City Attorney 701 Fifth Avenue, Suite 2050

Yvonne R. Meré

Seattle, WA 98104-7097

Chief of Complex and Affirmative Litigation Peter.Holmes@seattle.gov

Erin Kuka,* Deputy City Attorney

Erica.Franklin@seattle.gov

Neha Gupta, Deputy City Attorney

Ghazal.Sharifi@seattle.gov

San Francisco City Attorney’s Office

Tel. (206) 684-8200

City Hall, Room 234

Fax (206) 684-4648

1 Dr. Carlton B. Goodlett Place

San Francisco, CA 94102

Erin.Kuka@sfcityatty.org

Tel. (415) 554-4229

Fax (415) 554-4715

48

ROLANDO L. RIOS Special Counsel for Hidalgo and Cameron Counties
/s Rolando Rios Rolando Rios* Special Counsel for Hidalgo and Cameron Counties 115 E. Travis, Suite 1645 San Antonio, TX 78205 rrios@rolandorioslaw.com (210) 222-2102

JO ANNE BERNAL El Paso County Attorney
/s Jo Anne Bernal Jo Anne Bernal,* County Attorney Ian Kaplan, Assistant County Attorney El Paso County Attorney’s Office 500 E. San Antonio, Room 503 El Paso, TX 79901 Joanne.bernal@epcounty.com Ian.kaplan@epcounty.com Tel. (915) 546-2050

LESLIE J. GIRARD Monterey County Counsel
/s Leslie J. Girard Leslie J. Girard, County Counsel Susan K. Blitch, Assistant County Counsel William M. Litt, Deputy County Counsel Office of the County Counsel County of Monterey 168 West Alisal St., 3d Floor Salinas, CA 93901 GirardLJ@co.monterey.ca.us LittWM@co.monterey.ca.us Tel. (831) 755-5045 Fax (831) 755-5283

* Application for pro hac vice admission forthcoming

49

Case 1:20-cv-05770-JMF Document 1-1 Filed 07/24/20 Page 1 of 4
Exhibit 1

Case 1:20-cv-05770-JMF Document 1-1 Filed 07/24/20 Page 2 of 4

Federal Register Vol. 85, No. 142 Thursday, July 23, 2020

Presidential Documents

44679

Title 3—
The President

Memorandum of July 21, 2020
Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census

Memorandum for the Secretary of Commerce
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Background. In order to apportion Representatives among the States, the Constitution requires the enumeration of the population of the United States every 10 years and grants the Congress the power and discretion to direct the manner in which this decennial census is conducted (U.S. Const. art. I, sec. 2, cl. 3). The Congress has charged the Secretary of Commerce (the Secretary) with directing the conduct of the decennial census in such form and content as the Secretary may determine (13 U.S.C. 141(a)). By the direction of the Congress, the Secretary then transmits to the President the report of his tabulation of total population for the apportionment of Representatives in the Congress (13 U.S.C. 141(b)). The President, by law, makes the final determination regarding the ‘‘whole number of persons in each State,’’ which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). The Congress has provided that it is ‘‘the President’s personal transmittal of the report to Congress’’ that ‘‘settles the apportionment’’ of Representatives among the States, and the President’s discretion to settle the apportionment is more than ‘‘ceremonial or ministerial’’ and is essential ‘‘to the integrity of the process’’ (Franklin v. Massachusetts, 505 U.S. 788, 799, and 800 (1992)).
The Constitution does not specifically define which persons must be included in the apportionment base. Although the Constitution requires the ‘‘persons in each State, excluding Indians not taxed,’’ to be enumerated in the census, that requirement has never been understood to include in the apportionment base every individual physically present within a State’s boundaries at the time of the census. Instead, the term ‘‘persons in each State’’ has been interpreted to mean that only the ‘‘inhabitants’’ of each State should be included. Determining which persons should be considered ‘‘inhabitants’’ for the purpose of apportionment requires the exercise of judgment. For example, aliens who are only temporarily in the United States, such as for business or tourism, and certain foreign diplomatic personnel are ‘‘persons’’ who have been excluded from the apportionment base in past censuses. Conversely, the Constitution also has never been understood to exclude every person who is not physically ‘‘in’’ a State at the time of the census. For example, overseas Federal personnel have, at various times, been included in and excluded from the populations of the States in which they maintained their homes of record. The discretion delegated to the executive branch to determine who qualifies as an ‘‘inhabitant’’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.

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44680

Case 1:20-cv-05770-JMF Document 1-1 Filed 07/24/20 Page 3 of 4
Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents
In Executive Order 13880 of July 11, 2019 (Collecting Information About Citizenship Status in Connection With the Decennial Census), I instructed executive departments and agencies to share information with the Department of Commerce, to the extent permissible and consistent with law, to allow the Secretary to obtain accurate data on the number of citizens, non-citizens, and illegal aliens in the country. As the Attorney General and I explained at the time that order was signed, data on illegal aliens could be relevant for the purpose of conducting the apportionment, and we intended to examine that issue.
Sec. 2. Policy. For 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch. Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles. Many of these aliens entered the country illegally in the first place. Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law. States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives. Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population. Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.
I have accordingly determined that respect for the law and protection of the integrity of the democratic process warrant the exclusion of illegal aliens from the apportionment base, to the extent feasible and to the maximum extent of the President’s discretion under the law.
Sec. 3. Excluding Illegal Aliens from the Apportionment Base. In preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy set forth in section 2 of this memorandum. The Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 FR 5525 (Feb. 8, 2018).
Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

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Federal Register / Vol. 85, No. 142 / Thursday, July 23, 2020 / Presidential Documents

44681

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2020–16216 Filed 7–22–20; 2:00 pm] Billing code 3510–07–P

THE WHITE HOUSE, Washington, July 21, 2020

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 Case 1:20-cv-05770-JMF Document 34 Filed 08/03/20 Page 1 of 54

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, DISTRICT OF COLUMBIA, STATE OF HAWAI‘I, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MARYLAND, COMMONWEALTH OF MASSACHUSETTS, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW JERSEY, STATE OF NEW MEXICO, STATE OF NORTH CAROLINA, STATE OF OREGON, COMMONWEALTH OF PENNSYLVANIA, STATE OF RHODE ISLAND, STATE OF VERMONT, COMMONWEALTH OF VIRGINIA, STATE OF WASHINGTON, STATE OF WISCONSIN; CITY OF CENTRAL FALLS, CITY OF CHICAGO, CITY OF COLUMBUS, CITY OF NEW YORK, CITY OF PHILADELPHIA, CITY OF PHOENIX, CITY OF PITTSBURGH, CITY OF PROVIDENCE, CITY AND COUNTY OF SAN FRANCISCO, CITY OF SEATTLE; CAMERON COUNTY, EL PASO COUNTY, HIDALGO COUNTY, HOWARD COUNTY, MONTEREY COUNTY; and the UNITED STATES CONFERENCE OF MAYORS,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States; UNITED STATES

20 Civ. 5770 (JMF) AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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DEPARTMENT OF COMMERCE; WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; BUREAU OF THE CENSUS; and STEVEN DILLINGHAM, in his official capacity as Director of the United States Census Bureau,
Defendants.
INTRODUCTION 1. This lawsuit challenges President Donald J. Trump’s blatant disregard of an unambiguous constitutional command. The Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend. XIV, § 2. The Framers of the Fourteenth Amendment deliberately chose the phrase “whole number of persons” to refer to all persons living in each State—including the “entire immigrant population not naturalized.” Cong. Globe, 39th Cong., 1st Sess. 432 (1866) (Rep. John Bingham). 2. For 150 years—since the United States recognized the whole personhood of those formerly bound in slavery—the unambiguous requirement that all persons be counted for apportionment purposes, regardless of immigration status, has been respected by every executive official, every cabinet officer, and every President. 3. Until now. On July 21, 2020, President Trump issued a “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1). For the first time in our history, the Memorandum announces a “policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Id. at 44,680. It directs the Secretary of
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Commerce to provide the President with information to carry out this policy. And it declares the President’s intent to make a determination of the “whole number of persons in each State” that will in fact exclude the undocumented immigrants he has targeted throughout his administration.
4. The President’s new policy and any actions Defendants take to implement it unequivocally violate the Fourteenth Amendment. The constitutional mandate to base apportionment on “the whole number of persons in each State” could hardly be clearer, and the Supreme Court has long recognized that undocumented immigrants are “persons” under the Fourteenth Amendment, Plyler v. Doe, 457 U.S. 202, 210 (1982). The Memorandum’s open disregard of the Constitution’s plain text is reason enough to invalidate it and to prevent Defendants from taking steps to carry out its unlawful policy.
5. But Defendants’ decision to exclude undocumented immigrants from apportionment also violates the Constitution and federal statutes in multiple additional ways. Defendants’ decision unlawfully discriminates against Hispanics and immigrant communities of color in violation of the Due Process Clause of the Fifth Amendment. By explicitly targeting and punishing States that refuse to assist in this administration’s enforcement of federal immigration law, Defendants’ decision violates the Tenth Amendment. Further, Defendants’ decision to exclude undocumented immigrants from apportionment—as well as any action they take to implement or further that decision—is both contrary to law and arbitrary and capricious, in violation of the Administrative Procedure Act. And the Memorandum violates statutes Congress enacted to require the enumeration in the census of the whole number of persons in each State, and to command the President to provide a statement with a mathematical apportionment based solely on that enumeration.
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6. Defendants’ decision harms Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests. If Defendants succeed in excluding undocumented immigrants from apportionment, some Plaintiffs will suffer severe injury to their most basic rights under our Constitution’s representational form of government: they will improperly lose one or more Members in the House of Representatives and one or more corresponding electors in the Electoral College. And removing undocumented immigrants from the apportionment base will further harm Plaintiffs by, for example, undermining their ability to conduct congressional and state-level redistricting, depriving them of critical federal funding, and eroding the quality of census data on which they rely to perform essential government functions.
7. Plaintiffs the State of New York, State of Colorado, State of Connecticut, State of Delaware, District of Columbia, State of Hawai‘i, State of Illinois, State of Maine, State of Maryland, Commonwealth of Massachusetts, State of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, State of Wisconsin, City of Central Falls, City of Chicago, City of Columbus, City of New York, City of Philadelphia, City of Phoenix, City of Pittsburgh, City of Providence, City and County of San Francisco, City of Seattle, Cameron County, El Paso County, Hidalgo County, Howard County, Monterey County, and the United States Conference of Mayors therefore bring this action seeking declaratory and injunctive relief to hold Defendants to their obligation to base apportionment on “the whole number of persons in each State” and to forbid them from excluding undocumented immigrants—or any other person—from the apportionment base.
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JURISDICTION AND VENUE 8. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2201(a). 9. Declaratory and injunctive relief is sought as authorized in 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. Plaintiffs the State of New York and the City of New York are residents of this judicial district, and a substantial part of the events or omissions giving rise to this Complaint occurred and are continuing to occur within the Southern District of New York.
PARTIES 11. Plaintiff the State of New York, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is New York State’s chief law enforcement officer and is authorized under N.Y. Executive Law § 63 to pursue this action. 12. Plaintiff the State of Colorado is a sovereign state of the United States of America. The State of Colorado brings this action by and through its Attorney General, Philip J. Weiser. The Attorney General has authority to represent the state, its departments, and its agencies, and “shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party.” Colo. Rev. Stat. § 24-31-101. 13. Plaintiff the State of Connecticut, represented by and through its Attorney General, William Tong, is a sovereign state of the United States of America. The Attorney General brings this action as the state’s chief civil legal officer under Conn. Gen. Stat. § 3-124 et seq.
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14. Plaintiff the State of Delaware is represented by and through its Attorney General Kathleen Jennings, and is a sovereign state of the United States of America. Attorney General Jennings is Delaware’s chief law enforcement officer, see Del. Const., art. III, and is authorized to pursue this action under 29 Del. Code § 2504.
15. Plaintiff the District of Columbia is a municipal corporation empowered to sue and be sued, and is the local government for the territory constituting the permanent seat of the federal government. The District brings this case through the Attorney General for the District of Columbia, who is the chief legal officer for the District and possesses all powers afforded the Attorney General by the common and statutory law of the District. The Attorney General is responsible for upholding the public interest and has the authority to file civil actions in order to protect the public interest. D.C. Code § 1-301.81.
16. Plaintiff the State of Hawai‘i, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Clare E. Connors is the chief legal officer of the State of Hawai‘i and is authorized to appear, personally or by deputy, on behalf of the state in all courts and in all cases in which the state is a party. Haw. Const. art. V, § 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7.
17. Plaintiff the State of Illinois, represented by and through its Attorney General, Kwame Raoul, is a sovereign state of the United States of America. The Attorney General is Illinois’s chief law enforcement officer and is authorized under 15 ILCS 205/4 to pursue this action.
18. Plaintiff, the State of Maine, represented by and through its Attorney General Aaron M. Frey, is a sovereign state of the United State of America. The Attorney General of Maine is a constitutional officer with the authority to represent the State of Maine in all matters
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and serves as its chief legal officer with general charge, supervision, and direction of the State’s legal business. Me. Const. art. IX, Sec. 11; Me. Rev. Stat. tit. 5, §§ 191 et seq. The Attorney General’s powers and duties include acting on behalf of the State and the people of Maine in the federal courts on matters of public interest. The Attorney General has the authority to file suit to challenge action by the federal government that threatens the public interest and welfare of Maine residents as a matter of constitutional, statutory, and common law authority.
19. Plaintiff the State of Maryland, by and through its Attorney General, Brian E. Frosh, is a sovereign state of the United States of America. The Attorney General is Maryland’s chief legal officer with general charge, supervision, and direction of the State’s legal business. The Attorney General’s powers and duties include acting on behalf of the State and the people of Maryland in the federal courts on matters of public concern. Under the Constitution of Maryland, and as directed by the Maryland General Assembly, the Attorney General has the authority to file suit to challenge action by the federal government that threatens the public interest and welfare of Maryland residents. Md. Const. art. V, § 3(a)(2); 2017 Md. Laws, Joint Resolution 1.
20. Plaintiff the Commonwealth of Massachusetts, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is authorized to pursue this action under Mass. Gen. Laws ch. 12, §§ 3 and 10.
21. Plaintiff the State of Michigan, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is Michigan’s chief law enforcement officer and is authorized under Michigan law, Mich. Comp. Laws §§ 14.28 and 14.29, to pursue this action.
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22. Plaintiff the State of Minnesota, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is Minnesota’s chief legal officer and is authorized to pursue this action on behalf of the State. Minn. Stat. § 8.01.
23. Plaintiff the State of Nevada, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Aaron D. Ford is the chief legal officer of the State of Nevada and has the authority to commence actions in federal court to protect the interests of Nevada. Nev. Rev. Stat. § 228.170. Governor Stephen F. Sisolak is the chief executive officer of the State of Nevada. The Governor is responsible for overseeing the operations of the State and ensuring that its laws are faithfully executed. Nev. Const., art. 5, § 1.
24. Plaintiff the State of New Jersey, represented by and through its Attorney General Gurbir S. Grewal, is a sovereign state of the United States of America. The Attorney General is New Jersey’s chief legal officer and is authorized to pursue this action on behalf of the State. See N.J. Stat. Ann. § 52:17A-4(e), (g).
25. Plaintiff the State of New Mexico, represented by and through its Attorney General Hector Balderas, is a sovereign state of the United States of America. The Attorney General is authorized to bring an action on behalf of New Mexico in any court when, in his judgment, the interests of the State so require, N.M. Stat. Ann. § 8-5-2.
26. Plaintiff the State of North Carolina, represented by and through Attorney General Joshua H. Stein, is a sovereign state of the United States of America. The Attorney General is the State of North Carolina’s chief law enforcement officer and brings this challenge pursuant to his independent constitutional, statutory, and common-law authority.
27. Plaintiff the State of Oregon, acting by and through the Attorney General of Oregon, Ellen F. Rosenblum, is a sovereign state of the United States of America. The Attorney
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General is the chief law officer of Oregon and is empowered to bring this action on behalf of the State of Oregon, the Governor, and the affected state agencies under Or. Rev. Stat. §§ 180.060, 180.210, and 180.220.
28. Plaintiff the Commonwealth of Pennsylvania is a sovereign state of the United States of America. This action is brought on behalf of the Commonwealth by Attorney General Josh Shapiro, the “chief law officer of the Commonwealth.” Pa. Const. art. IV, § 4.1. Attorney General Shapiro brings this action on behalf of the Commonwealth pursuant to his statutory authority under 71 Pa. Stat. § 732-204.
29. Plaintiff the State of Rhode Island, represented by and through its Attorney General, is a sovereign state of the United States. Attorney General Peter F. Neronha is the chief legal advisor to the State of Rhode Island and is authorized to pursue this action pursuant to his constitutional, statutory, and common law authority. R.I. Const. art. IX § 12, R.I. Gen. Laws §§ 42-9-1 et seq.
30. Plaintiff the State of Vermont, represented by and through its Attorney General, Thomas J. Donovan, is a sovereign state in the United States of America. The Attorney General is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt. Stat. Ann. tit. 3, §§ 152 and 157.
31. Plaintiff the Commonwealth of Virginia brings this action by and through its Attorney General, Mark R. Herring. The Attorney General has the authority to represent the Commonwealth, its departments, and its agencies in “all civil litigation in which any of them are interested.” Va. Code Ann. § 2.2-507(A).
32. Plaintiff the State of Washington, represented by and through its Attorney General, Robert W. Ferguson, is a sovereign state of the United States of America. The Attorney
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General is the chief legal adviser to the State of Washington and is authorized to pursue this action pursuant to RCW 43.10.030. The Attorney General’s powers and duties include acting in federal court on matters of public concern.
33. Plaintiff State of Wisconsin is a sovereign state of the United States of America and brings this action by and through its Attorney General, Joshua L. Kaul, who is the chief legal officer of the State of Wisconsin and has the authority to file civil actions to protect Wisconsin’s rights and interests. See Wis. Stat. § 165.25(1m). The Attorney General’s powers and duties include appearing for and representing the State, on the governor’s request, “in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.” Id.
34. Plaintiff the City of Central Falls is a municipal corporation organized pursuant to the laws of the State of Rhode Island.
35. Plaintiff the City of Chicago is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Illinois.
36. Plaintiff the City of Columbus is a municipal corporation and home rule unit organized and existing under the constitution and laws of the State of Ohio and the City’s Home Rule Charter.
37. Plaintiff the City of New York is a municipal corporation organized pursuant to the laws of the State of New York. New York City is a political subdivision of the State and derives its powers through the New York State Constitution, New York State laws, and the New York City Charter. New York City is the largest city in the United States by population.
38. Plaintiff the City of Philadelphia is a municipal corporation organized pursuant to the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the
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Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law, and the City’s Home Rule Charter.
39. Plaintiff the City of Phoenix is a municipal corporation organized pursuant to the laws of the State of Arizona.
40. Plaintiff the City of Pittsburgh is a municipal corporation organized pursuant to the laws of the Commonwealth of Pennsylvania. The City is a political subdivision of the Commonwealth with powers derived from the Pennsylvania Constitution, Commonwealth law, and the City’s Home Rule Charter.
41. Plaintiff the City of Providence is a municipal corporation organized pursuant to the laws of the State of Rhode Island.
42. Plaintiff the City and County of San Francisco, represented by and through its City Attorney, is a municipal corporation organized and existing under and by virtue of the laws of the State of California, and is a charter city and county.
43. Plaintiff the City of Seattle is a first-class charter city, incorporated under the laws of the State of Washington, empowered to sue and be sued, and represented by and through its elected City Attorney, Peter S. Holmes.
44. Plaintiff Cameron County, Texas is a political subdivision of the State of Texas. 45. Plaintiff El Paso County, Texas is a political subdivision of the State of Texas. 46. Plaintiff Hidalgo County, Texas is a political subdivision of the State of Texas. 47. Plaintiff Howard County, Maryland, represented by and through its County Solicitor, Gary W. Kuc, is a body corporate and politic and a charter county and political subdivision of the State of Maryland, organized and existing under the Constitution and Laws of the State of Maryland and the Howard County Charter, with the power to bring this action.
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48. Plaintiff Monterey County, California is a political subdivision of the State of California.
49. Plaintiff United States Conference of Mayors is the official nonpartisan organization of cities with populations of 30,000 or more. There are nearly 1,400 such cities in the country today, and each member city is represented in the Conference by its chief elected official, the mayor.
50. Plaintiffs are aggrieved by Defendants’ decision and conduct and have standing to bring this action because Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until the challenged decision and conduct are enjoined.
51. Defendant Donald J. Trump is the President of the United States. He is responsible for the actions and decisions that are being challenged by Plaintiffs in this action and is sued in his official capacity.
52. Defendant the United States Department of Commerce is a cabinet agency within the executive branch of the United States government. The Commerce Department is responsible for planning, designing, and implementing the 2020 Census. 13 U.S.C. § 4.
53. Defendant Wilbur L. Ross, Jr. is the Secretary of Commerce. He is responsible for overseeing the Census Bureau, conducting the decennial census of the population, and reporting to the President the tabulation of total population by States for the apportionment of Representatives in Congress. 13 U.S.C. § 141. He is sued in his official capacity.
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54. Defendant Bureau of the Census is an agency within, and under the jurisdiction of, the Department of Commerce. 13 U.S.C. § 2. The Census Bureau is responsible for planning and administering the decennial census.
55. Defendant Steven Dillingham is Director of the Census Bureau. He is sued in his official capacity.
ALLEGATIONS I. Constitutional and statutory background.
A. The Constitution requires apportioning Members of the House of Representatives among the States based on the total number of persons living in each State.
56. The Constitution requires that the Members of the House of Representatives “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3.
57. The number of Representatives apportioned to each State, along with the two Senators given to each State, determines the allocation among the States of electors in the Electoral College. Id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3.
58. To apportion Representatives among the States properly (and ultimately to allocate electors among the States properly) the Constitution requires an “actual Enumeration” of the total population every ten years, id. art. I, § 2, cl. 3.
59. “By its terms, therefore, the Constitution mandates that every ten years the federal government endeavor to count every single person residing in the United States, whether citizen or noncitizen, whether living here with legal status or without,” and to use that enumeration of the total population “to apportion Representatives among the states.” New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2019).
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60. More than two hundred years of history, practice, and judicial and administrative precedents establish that the apportionment of Representatives must be based on all persons living in each State, regardless of their citizenship or immigration status.
61. During the country’s founding, the Framers debated the proper basis on which to apportion Representatives and declared that Representatives “shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.” U.S. Const. art. I, § 2, cl. 3 (emphasis added). The Framers repeatedly made clear that the basis for apportionment of Representatives was thus all persons. For example, as James Madison explained in 1788, the “fundamental principle of the proposed constitution” ensured that “the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants.” The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001).
62. The original Apportionment Clause provided for only two exceptions to the use of total population for apportionment. First, “Indians not taxed” were excluded from the apportionment base. U.S. Const. art. I, § 2, cl. 1, § 3. Second, slaves were counted as only three-fifth of a person. Id. No other exceptions were provided, making clear that all other persons living in the United States needed to be counted by the decennial enumeration and included in the apportionment base.
63. When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats among the States and reaffirmed that apportionment must be based on all persons living in each State—citizens and noncitizens alike. The Framers of the Fourteenth Amendment rejected numerous proposals to change the basis of apportionment from total population to voter population. See, e.g., Cong. Globe, 39th Cong., 1st
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Sess. 10 (1865) (proposal to apportion representatives among the States “according to their respective legal voters”).
64. Instead, the Framers amended the Constitution to remove the provision that counted slaves as three-fifths of a person and declared that apportionment of Representatives must be based on the “whole number of persons in each State.” U.S. Const. amend. XIV, § 2. As the Fourteenth Amendment’s Framers explained, “numbers,” i.e., all persons living in each State, is “the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such . . . is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) (Jacob Howard).
65. Basing apportionment on all persons, the Framers further emphasized, ensured that each State’s representation in the House reflected all persons regardless of whether they could then vote, including women, children, and the “entire immigrant population not naturalized.” Id. at 432 (Rep. John Bingham); see, e.g., id. at 411 (representation based on number of voters improperly “takes from the basis of representation all unnaturalized foreigners” (Rep. Burton Cook)).
66. Since 1790, in accordance with the Constitution’s express requirement to base apportionment on all persons living in each State, the decennial actual enumeration has always counted all persons living in the United States based on where they “usually reside[].” See Census Act of 1790, § 5, 1 Stat. 101 (1790); 2020 Decennial Census Residence Rule and Residence Situations, 80 Fed. Reg, 28,950, 28,950 (May 20, 2015) (“The Census Act of 1790
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established the concept of ‘usual residence’ as the main principle in determining where people are to be counted. This concept has been followed in all subsequent censuses.”).
67. Under the Census Bureau’s well-settled practice and a final rule that it promulgated pursuant to notice-and-comment rulemaking for the 2020 Census, usual residence means the place where a person lives and sleeps most of the time. See Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5533 (Feb. 8, 2018).
68. Accordingly, the decennial enumeration and apportionment base includes all noncitizens who live and sleep most of the time in the United States, regardless of their place of citizenship or immigration status. See, e.g., id. The enumeration likewise counts noncitizens who are “members of the diplomatic community” “at the embassy, consulate, United Nations’ facility, or other residences where diplomats live.” Id.
69. By contrast, noncitizens who are temporarily visiting the United States, such as on a vacation or business trip, are not included in the decennial enumeration and apportionment base because they do not live and sleep most of the time in the United States. See, e.g., id.
70. The millions of undocumented immigrants who do live in the United States have an established presence here. These immigrants have moved to the United States, and they are members of their state and local communities.
71. For example, the Migration Policy Institute has estimated, based on data from 2012 to 2016, that more than nine million undocumented immigrants have lived in the United States for five years or more. The Migration Policy Institute estimated that more than seven
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million undocumented immigrants have lived in this country for ten years or more, and that
nearly four million undocumented immigrants have lived here for twenty years or more.1
72. Undocumented immigrants residing here both contribute to and participate in their
communities and in many public programs. For example, millions of undocumented immigrants
work here and pay taxes.2 Many undocumented immigrants live here with their family members,
including children who are United States citizens.3
73. Based on the Constitution’s text, more than two centuries of history, and well-
settled census practice, the Supreme Court and other courts have repeatedly made clear that the
Fourteenth Amendment requires apportionment of Representatives based on the total number of
all persons living in each State. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 10-18 (1964);
Evenwel v. Abbott, 136 S. Ct. 1120, 1127-29 (2016). Courts have also repeatedly determined
that the “whole number of persons” used to apportion Representatives includes all noncitizens
who are living in the United States regardless of their immigration status. See, e.g., Fed’n for
Am. Immigration Reform v. Klutznick, 486 F. Supp. 564, 576-78 (D.D.C. 1980) (three-judge
court).
1 Migration Policy Institute, Profile of the Unauthorized Population: United States, https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US. 2 See, e.g., Jens Manuel Krogstad et al., Pew Research Center, 5 facts about illegal immigration in the U.S. (June 12, 2019), https://www.pewresearch.org/fact-tank/2019/06/12/5-facts-aboutillegal-immigration-in-the-u-s (estimating that in 2017, the United States’ civilian workforce included 7.6 million undocumented immigrants); American Immigration Council, Adding Up the Billions in Tax Dollars Paid by Undocumented Immigrants 1, https://www.americanimmigrationcouncil.org/sites/default/files/research/adding_up_the_billions _in_tax_dollars_paid_by_undocumented_immigrants.pdf; Hunter Hallman, Bipartisan Policy Center, How do Undocumented Immigrants Pay Federal Taxes? An Explainer (Mar. 28, 2018), https://bipartisanpolicy.org/blog/how-do-undocumented-immigrants-pay-federal-taxes-anexplainer/. 3 Migration Policy Institute, supra (estimating that more than 3 million undocumented immigrants over the age of 15 resided with a citizen child under the age of 18).
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74. The federal government, and several of the Defendants here, have conceded that the decennial enumeration that constitutes the apportionment base must count all persons living in the United States.
75. For example, on March 14, 2019, Secretary Ross testified under oath during a congressional committee hearing, stating “The constitutional mandate, sir, for the census is to try to count every person residing in the U.S. at their place of residence on the dates when the census is conducted.” Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 31 (Mar. 14, 2019) (emphasis added). Secretary Ross further testified that “the Department of Commerce is fully committed to administering as complete and accurate decennial census as we can. We intend to try to count every person taking all necessary actions to do so.” Id. (emphasis added).
76. During a congressional committee hearing in February 2020, Census Bureau Director Dillingham stated that the Bureau will “count everyone, wherever they are living,” including undocumented immigrants. Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 12 (Feb. 12, 2020) (emphasis added).
77. The federal government has repeatedly argued that excluding undocumented immigrants from the decennial enumeration or the apportionment base violates the Constitution and applicable statutes. For example, in Federation for American Immigration Reform v. Klutznick, the government urged a district court to reject claims demanding exclusion of undocumented immigrants from the “whole number of persons” that constitutes the apportionment base. The government explained that “the plain language of the Constitution, as
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well as the intent of its framers, establishes that all inhabitants, including illegal aliens, must be enumerated for the purpose of apportioning Representatives.”4
78. Similarly, the Department of Justice’s Office of Legislative Affairs has opined that the Constitution requires inclusion of undocumented immigrants in the decennial enumeration that constitutes the apportionment base. See, e.g., Letter from Carol T. Crawford, Assistant Attorney General, to Senator Jeff Bingham (Sept. 22, 1989).
79. The population count derived from the census is used not only to apportion representatives and ultimately electors “but also to allocate federal funds to the States and to draw electoral districts.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2561 (2019).
80. For these reasons, the “decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs.” Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2481 (1997).
B. The Census Act requires that the total population count used for congressional apportionment include all persons living in the United States.
81. The Constitution provides that an “actual Enumeration shall be made” every ten years “in such manner as [Congress] shall direct by law.” U.S. Const. art. I, § 2. Congress has exercised its authority over the census by enacting various statutory provisions (“Census Act”).
82. Congress has assigned the responsibility of conducting the decennial enumeration to the Secretary of Commerce, and the Secretary may delegate authority for establishing procedures to conduct the census to the Census Bureau. 13 U.S.C. §§ 2, 4, 141.
4 Defs.’ Mem. of Points & Authorities in Support of Mot. to Dismiss or for Summary Judgment, No. 79-3269 (D.D.C.), reprinted in 1980 Census: Counting Illegal Aliens, Hr’gs Before the S. Subcomm. on Energy, Nuclear Proliferation and Federal Services, 96th Cong. 125-156 (1980).
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83. The Census Act requires that the decennial census be taken on April 1, 2020, the “decennial census date.” 13 U.S.C. § 141(a). The Secretary of Commerce has no discretion to delay the decennial census date under the Census Act. Id.
84. Within nine months of the decennial census date, i.e., by January 1, 2021, the Secretary of Commerce must report to the President “[t]he tabulation of total population by States” that is “required for the apportionment of Representatives in Congress among the several States.” Id. § 141(b).
85. Then, between January 3 and January 8, 2021, the President must transmit to Congress “a statement showing the whole number of persons in each State, excluding Indians not taxed, 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, no State to receive less than one Member.” 2 U.S.C. § 2a(a).
86. Within fifteen days of receiving the President’s statement, the Clerk of the House of Representatives must transmit “to the executive of each State a certificate of the number of Representatives to which such State is entitled.” Id. § 2a(b). II. Defendants’ unlawful attempt to add a citizenship question to the decennial census.
87. Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base are directly related to Secretary Ross’s earlier and unlawful attempt to alter the decennial census that provides the apportionment count by adding a question inquiring about citizenship status.
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88. On March 26, 2018, Secretary Ross directed the Census Bureau to use the 2020 Census to demand information on the citizenship status of every resident in the country.5 Secretary Ross stated that he had decided to add the citizenship question because doing so was “necessary to provide complete and accurate data” that would aid enforcement of the Voting Rights Act (VRA) by the Department of Justice.
89. Many of the plaintiffs here filed a lawsuit challenging the addition of the citizenship question as, among other things, arbitrary and capricious and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). See Second Am. Compl., New York v. U.S. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 210 (S.D.N.Y. filed July 23, 2018).
90. After an eight-day bench trial, the United States District Court for the Southern District of New York vacated Secretary Ross’s decision to add a citizenship question to the 2020 census questionnaire. New York, 351 F. Supp. 3d at 679. In so ruling, the court concluded that the plaintiffs had standing to sue because the inclusion of a citizenship question would deter participation in the census by households with a noncitizen and lead to a differential undercount of noncitizens and Hispanics that would concretely harm plaintiffs in various ways. Id. at 578593. For example, the court found that adding a citizenship question would cause some plaintiffs to lose congressional seats, impair state and local redistricting efforts that rely on census numbers, harm the quality and accuracy of census data, and reduce federal funding to plaintiffs’ jurisdictions. Id. at 593-98, 607-15.
5 Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of Commerce for Econ. Affairs Karen Dunn Kelley, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire 7 (Mar. 26, 2018), https://www.commerce.gov/sites/commerce.gov/files” /2018-03-26_2.pdf.
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91. The court also determined that Secretary Ross’s decision violated the Administrative Procedure Act for several reasons, including because his rationale for adding the citizenship question was pretextual. Id. at 660-64. As the court explained, the evidence was “clear that Secretary Ross’s rationale was pretextual—that is, that the real reason for his decision [to add the citizenship question] was something other than the sole reason he put forward in his Memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” Id. at 660. The court noted that it was “unable to determine—based on the existing record, at least—what Secretary Ross’s real reasons for adding the citizenship question were.” Id. at 569-70.
92. The Supreme Court granted certiorari before judgment and affirmed, in relevant part, the district court’s final judgment setting aside the Secretary’s decision to add a citizenship question. The Supreme Court held that “the Secretary’s decision must be set aside because it rested on a pretextual basis.” Dep’t of Commerce, 139 S. Ct. at 2573. The Court reasoned that the Secretary’s decision “cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA” because there was “a significant mismatch between the decision the Secretary made and the rationale he provided.” Id. at 2575. In short, Secretary Ross’s “VRA enforcement rationale—the sole stated reason—seems to have been contrived.” Id.
93. After the Supreme Court remanded the case to the district court, the court entered a permanent injunction that enjoined the defendants “from including a citizenship question on the 2020 decennial census questionnaire; from delaying the process of printing the 2020 decennial census questionnaire after June 30, 2019 for the purpose of including a citizenship question; and from asking persons about citizenship status on the 2020 census questionnaire or
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otherwise asking a citizenship question as part of the 2020 decennial census.” Order, New York v. Dep’t of Commerce, No. 18-cv-2921, Doc. No. 634 (S.D.N.Y. July 16, 2019).
94. On July 11, 2019, President Trump issued an Executive Order to “ensure that accurate citizenship data is compiled in connection with the census” notwithstanding the Supreme Court’s decision and the district court’s order precluding the use of a citizenship question in the 2020 Census. Collecting Information About Citizenship Status in Connection with the Decennial Census, Exec. Order 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019).
95. To achieve that goal, President Trump directed all executive departments and agencies to provide to the Department of Commerce “the maximum assistance permissible, consistent with law, in determining the number of citizens and noncitizens in the country.” Id.
96. In a public statement accompanying the issuance of the Executive Order, given from the White House’s Rose Garden, President Trump made clear that the federal government would not be “backing down on our effort to determine the citizenship status of the United States population.” President Donald Trump, Remarks by President Trump on Citizenship and the Census (July 11, 2018), https://www.whitehouse.gov/briefings-statements/remarks-presidenttrump-citizenship-census/. President Trump stated that “[t]here used to be a time when you could proudly declare, ‘I am a citizen of the United States.’ Now they’re trying to erase the very existence of a very important word and a very important thing: citizenship.” Id.
97. President Trump further stated that, pursuant to the Executive Order, the federal government will be taking steps “to ensure that citizenship is counted so that we know how many citizens we have in the United States.” Id.
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III. The July 21, 2020 Memorandum directing exclusion of undocumented immigrants from the apportionment count. 98. Recent events have now laid bare the real reasons driving Secretary Ross’s
decision to add a citizenship question to the 2020 Census: to exclude undocumented persons from the “whole number of persons” that constitutes the apportionment base and to discriminate against Hispanics and noncitizens.
99. On July 21, 2020, President Trump issued a memorandum (i) declaring that undocumented immigrants will be excluded from the “whole number of persons in each State” enumerated by the 2020 Census and used to apportion the number of Representatives to each State, and (ii) directing the Secretary to take “all appropriate action” to provide the President with information to exclude undocumented immigrants from the apportionment base. Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679 (July 23, 2020) (attached as Ex. 1).
100. The Memorandum declares 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 under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible.” Id. at 44,680.
101. The Memorandum asserts that the Executive branch has purported “discretion” to exclude from the apportionment base all undocumented immigrants who reside in the United States, id. at 44,679—no matter how long they have been living here.
102. The Memorandum acknowledges that the Constitution explicitly requires apportionment of Representatives based on the “whole number of persons in each State.” Id. It states that not every person who is physically present on the decennial census date is living in the
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United States. Id. For example, the Memorandum states, noncitizens who are temporarily visiting on vacation or for business are not “inhabitants” of the United States and are thus not included in the apportionment base. Id. Without any plausible basis, the Memorandum then asserts that purported “discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’ includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status”—even if those persons have been living in the United States for many years. Id.
103. In the Memorandum, President Trump targets States (including some of the plaintiff States) that have many undocumented immigrants living in their jurisdictions or that have declined to affirmatively assist the federal government’s immigration enforcement efforts.
104. For example, President Trump stated that “[a]ffording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.” Id. at 44,680. The Memorandum further stated that States that decline to adopt state laws or policies to assist federal efforts to enforce the immigration laws passed by Congress should essentially be stripped of any “representation in the House of Representatives” that is based on undocumented immigrants living in their jurisdictions. Id.
105. The Memorandum requires Secretary Ross, in preparing his § 141(b) report of the actual enumeration on which apportionment must be based, to take actions “to provide information” to the President to exclude undocumented immigrants from apportionment. Id. The Memorandum thus directs the Secretary (and by extension the Commerce Department and Census Bureau) to take actions to enable the President to exclude undocumented immigrants
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from his § 2a(a) report of both the “whole number of persons in each State” and the corresponding number of Representatives that each State receives. Id.
106. On the same day that he issued the Memorandum, President Trump issued a public statement making clear that Defendants’ decision and actions to exclude undocumented immigrants from the apportionment base are a continuation of the federal government’s prior unlawful attempt to add a citizenship question to the 2020 Census. President Donald Trump, Statement from the President Regarding Apportionment (July 21, 2020), https://www.whitehouse.gov/briefings-statements/statement-president-regarding-apportionment/.
107. As President Trump’s statement explained, he had previously asserted during his Rose Garden statements in July 2019 that he “would not back down in [his] effort to determine the citizenship status of the United States population.” Id. He further explained that he was now following “through on that commitment by directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.” Id. Echoing his earlier statements about the citizenship question, Trump further asserted that “[t]here used to be a time when you could proudly declare, ‘I am a citizen of the United States’” and that “the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country.” Id. He stated that his Memorandum directing exclusion of undocumented immigrants from the apportionment base responds to a purported “broader left-wing effort to erode the rights of Americans citizens.” Id.
108. Upon information and belief, following receipt of the Memorandum, the Secretary or Department of Commerce has issued (or will imminently issue) directives to the Census Bureau, constituting final agency action, to implement President Trump’s directive to exclude noncitizens from the enumeration and apportionment base.
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IV. Defendants’ decision to exclude undocumented immigrants from the apportionment base is motivated by discriminatory animus toward Hispanics and immigrant communities of color. 109. The Memorandum explicitly states that its goal is to reduce political influence and
congressional representation to jurisdictions with a larger share of undocumented immigrants. 85 Fed. Reg. at 44,680.
110. President Trump has repeatedly articulated concerns about the growth of immigrant communities and the impact of that growth on political power, and has sought to minimize the power of Hispanic and immigrant communities to increase the power of nonHispanic whites.
111. During the 2016 presidential campaign, for example, President Trump tweeted: “How crazy—7.5% of all births in U.S. are to illegal immigrants, over 300,000 babies per year. This must stop.”6
112. On April 5, 2018, when discussing his opposition to family-based immigration systems, President Trump claimed that Democrats favor “chain migration” because the party believes the immigrants will “vote Democratic.” Three weeks later, on April 28, President Trump revisited this topic, stating that Democrats favor undocumented immigration because “all of these people that are pouring across are going to vote for Democrats, they’re not going to vote for Republicans.”7
113. Defendants’ exclusion of undocumented immigrants from the apportionment base is of a piece with President Trump’s anti-immigrant and anti-Hispanic rhetoric and his
6 Donald Trump (@realDonaldTrump), Twitter (Aug. 21, 2015 6:56 AM), https://twitter.com/realdonaldtrump/status/634725641972248576. 7 Fox News (@FoxNews), Twitter (Apr. 28, 2018), https://twitter.com/foxnews/status/990383288232620032.
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Administration’s targeting of immigrant and Hispanic communities, which reflect animus towards those groups.
114. President Trump has long engaged in rhetoric that disparages Hispanics and immigrants of color. In statements stretching back to the beginning of his campaign, President Trump has repeatedly dehumanized, devalued, and vilified immigrants in general, and specifically immigrants from Latin America. For instance:
a. During his campaign launch in June 2015, President Trump claimed that “[w]hen Mexico sends its people. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.”8
b. During a meeting about recent immigrants in the Oval Office in June 2017, President Trump stated that 15,000 immigrants from Haiti “all have AIDS” and that 40,000 immigrants from Nigeria would never “go back to their huts” in Africa after seeing the United States.9
c. During a January 2018 meeting with lawmakers, while discussing protections for immigrants from Haiti, El Salvador and other African countries, President Trump asked why the United States is “having all these people from shithole countries
8 Full text: Donald Trump announces a presidential bid, Wash. Post, June 16, 2015, https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid/. 9 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times, Dec. 23, 2017, https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html.
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come here” and suggested that the United States should have more immigrants from countries like Norway.10 d. In a May 16, 2018 speech, President Trump stated that “[w]e have people coming into the country, or trying to come in . . . . You wouldn’t believe how bad these people are. These aren’t people, these are animals.”11 e. Speaking on the topic of migrant groups travelling to the United States from Central America at a rally on May 8, 2019, President Trump, stated, “[W]hen you see these caravans starting out with 20,000 people, that’s an invasion.”12 115. President Trump has acted on this rhetoric by adopting policies that seek to isolate, exclude, and instill fear in Hispanic immigrants and other immigrants of color. For instance, the Trump Administration has: a. Attempted to rescind the Deferred Action for Childhood Arrivals program, which protected 800,000 individuals, 90% of whom were Hispanic and 80% of whom were Mexican-American; b. Banned travel from several majority-Muslim countries; c. Suspended refugee admissions to the United States;
10 Ali Vitali, Kasie Hunt & Frank Thorp V, Trump referred to Haiti and African nations as ‘shithole’ countries, Jan. 12, 2018, https://www.nbcnews.com/politics/white-house/trumpreferred-haiti-african-countries-shithole-nations-n836946. 11 Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times, May 16, 2018, https://www.nytimes.com/2018/05/16/us/politics/trump-undocumentedimmigrants-animals.html. 12 President Trump Holds Rally in Panama City Beach, Florida, C-SPAN (May 8, 2019) (video), https://www.c-span.org/video/?460412-1/president-trump-holds-rally-panama-city-beach-florida.
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d. Terminated special protections from removal for migrants from nations experiencing war and natural disasters, including Nicaragua, Honduras, Haiti and El Salvador;
e. Increased actual and threatened raids and deportations of undocumented migrants, including, as recently as June 17, 2019, when President Trump tweeted a threat that “[n]ext week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in”;13
f. Attempted to build a physical wall along the Mexico-U.S. border; g. Adopted policies of separating children from their families when entering the
United States from Mexico, and detaining children separate from their parents and families thereafter; and h. Maintained children and other migrants across the U.S.-Mexico border in detention facilities that the United Nations Children’s Fund has described as “dire” and as causing “irreparable harm” to children housed in them.14 116. These public statements and actions from Defendant Trump establish that the rationale for excluding undocumented immigrants from the apportionment base is motivated by racial animus against immigrants of color, and a desire to curb the political power of immigrant communities of color.
13 Nick Miroff & Maria Sacchetti, Trump vows mass immigration arrests, removals of ‘millions of illegal aliens’ starting next week, Wash. Post, June 17, 2019, https://www.washingtonpost.com/immigration/trump-vows-mass-immigration-arrests-removalsof-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9-aadb74e6b2b46f6a_story.html?utm_term=.ece5e6a6b7e6. 14 After Rio Grande tragedy, UNICEF chief highlights “dire” detention centres on US-Mexico border, UN News (June 27, 2019), https://news.un.org/en/story/2019/06/1041421.
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V. Plaintiffs are harmed by Defendants’ decision to exclude undocumented immigrants from the apportionment base. 117. Defendants’ decision and actions to exclude undocumented immigrants from the
apportionment base harm Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests because they will cause some Plaintiffs to lose congressional seats and decrease their share of presidential electors in the Electoral College; skew the division of electoral districts within Plaintiffs’ jurisdictions by impairing state and local redistricting efforts that rely on the census count; reduce federal funds to Plaintiffs’ jurisdictions by deterring immigrants from responding to the decennial census that is currently underway; and degrade the quality of census data that Plaintiffs rely on to perform critical governmental functions.
118. First, excluding undocumented immigrants from the apportionment count will likely cause several States to lose one or more Representatives in Congress, directly harming those Plaintiff States, as well as those Plaintiff counties and cities within affected States, by diluting their political power and undermining their interest in fair congressional representation.
119. For example, large numbers of undocumented immigrants reside in California, Texas, New York, New Jersey, and Illinois.15 Defendants’ decision to exclude undocumented immigrants from the apportionment count is likely to directly reduce representation for those jurisdictions in Congress, injuring the representational interests of Plaintiffs the State of New York, State of New Jersey, State of Illinois, City of Chicago, City of New York, City and County of San Francisco, Cameron County, El Paso County, Hidalgo County, and Monterey County.
15 Pew Research Center, November 27, 2018, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, https://www.pewresearch.org/hispanic/wpcontent/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-UnauthorizedImmigrants-Total-Dips_Updated-2019-06-25.pdf.
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Other Plaintiffs may also suffer direct representational harms if undocumented individuals are excluded from the apportionment count.
120. The Memorandum itself acknowledges and intends these harms. See 85 Fed. Reg. at 44,680 (recognizing that excluding undocumented immigrants will “result in the allocation” of fewer congressional seats “than would otherwise be allocated” to some states).
121. The loss of a congressional seat will also cause the affected Plaintiff States, counties, and cities to lose one or more votes in the Electoral College, impairing their ability to elect the President and Vice President and harming their political power.
122. Second, excluding undocumented immigrants from the apportionment base will harm Plaintiffs’ representational interests by directly impairing Plaintiffs’ ability to draw accurate districting lines for congressional, state, or local legislative districts.
123. To comply with the Fourteenth Amendment’s one-person, one-vote requirement, States must use total population as the population base for congressional redistricting. Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (describing “our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives”); see Evenwel, 136 S. Ct. at 1129. Defendants’ decision to exclude undocumented immigrants from the apportionment base will undermine Plaintiff States’ ability to comply with this Constitutional mandate.
124. Certain Plaintiffs are required by state constitutional or statutory provisions to use the total population count from the decennial census as the basis for redistricting within their jurisdictions. New York state law provides, for example, that “each federal census taken decennially . . . shall be controlling as to the number of inhabitants in the state or any part thereof for the purposes of the apportionment of members of assembly and readjustment or alteration of
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senate and assembly districts.” N.Y. Const. art. III, § 4(a); see also id. §§ 3-5, 5-a. Many of the other Plaintiffs have comparable laws.16
125. Third, excluding undocumented immigrants from the apportionment base will deprive Plaintiffs of critical federal funding and inflict substantial financial harms on Plaintiffs.
126. Political science literature establishes that States that lose seats in Congress typically see a decrease in their share of federal outlays in subsequent years due to the reduction in their voting power in Congress. See, e.g., Roy Elis, Neil Malhotra, & Marc Meredith, Apportionment Cycles as Natural Experiments, Political Analysis 358-76 (2009). Those Plaintiffs likely to lose representation in Congress therefore also stand to lose critical federal resources as a result.
127. All Plaintiffs will further suffer financial harm because Defendants’ decision to exclude undocumented immigrants from the apportionment base will deter participation in the ongoing decennial census, undermining the Census Bureau’s efforts to count immigrants and their families, and depriving Plaintiffs of their fair share of census-derived federal funds.
128. Plaintiffs are home to some of the hardest-to-count communities in the nation, including significant populations of authorized and undocumented immigrants.17 Many of these immigrants live in mixed-status families, with U.S. citizen children, siblings, or spouses. These
16 See, e.g., Chicago Municipal code § 2-8-300; D.C. Code § 1-1011.01; Mass. Const. Amend. art. CI, §§ 1, 2, arts. CIX, CXVII, CXIX; Nev. Const. art. IV, § 5, art. XV, § 13; Tex. Const. art. 3, § 26; Va. Code Ann. § 30-265; Vt. Const. Ch. II, §§ 13, 18, 73; Vt. Stat. tit. 17, § 1902; Wash. Const. art. II, § 43; Wash. Rev. Code §§ 29A.76.010, 44.05.090. 17 Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, Pew Research Center (Nov. 27, 2018), https://www.pewresearch.org/hispanic/wpcontent/uploads/sites/5/2019/03/Pew-Research-Center_2018-11-27_U-S-UnauthorizedImmigrants-Total-Dips_Updated-2019-06-25.pdf.
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households are already less likely to respond to the census questionnaire; this Administration’s ongoing efforts to target immigrants—including Defendants’ failed efforts to add a citizenship question to the decennial census—have engendered substantial fear within these communities.18
129. The COVID-19 pandemic has further hampered efforts to ensure that all people— including hard-to-count populations—are counted. For example, the census relies upon nonresponse follow up operations (NRFU) to contact potential respondents and increase the census response rate. But NRFU operations were suspended and delayed during the pandemic, and the Government Accountability Office has raised concerns that even when resumed, these efforts will be less effective in light of the virus.19
130. Defendants’ decision to exclude undocumented immigrants from the apportionment base was announced just weeks before Census Bureau enumerators were finally scheduled to go into the field to encourage households to respond to the census,20 creating confusion and further increasing the risk of an undercount.
18 See, e.g., Alexandra Schmidt, Citizenship question is gone. Michigan immigrants still distrust the Census, (Mar. 2, 2020), https://www.bridgemi.com/michigan-government/citizenshipquestion-gone-michigan-immigrants-still-distrust-census (noting ongoing “fear among immigrants about what the government will do with information collected in the count”). 19 See U.S. Government Accountability Office, 2020 Census: COVID-19 Presents Delays and Risks to Census Count https://www.gao.gov/products/GAO-20-551R#summary. 20 U.S. Census Bureau, 2020 Census Operational Adjustments Due to COVID-19, https://2020census.gov/en/news-events/operational-adjustments-covid-19.html (last visited July 24, 2020).
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131. Moreover, Defendants’ decision on or about July 30 to drastically curtail NRFU operations further jeopardizes the Bureau’s ability to enumerate hard-to-count populations, including immigrants. Field data collection and self-response operations are now set to conclude by September 30, 2020, rather than October 31, 2020. The Bureau had previously requested an extension of the October deadline in order to complete the enumeration in light of the pandemic; instead the Bureau has been directed to substantially abbreviate their operations.21 Accordingly, limited time remains to ensure that hard-to-count populations respond to the census.
132. Against this backdrop, the announcement of Defendants’ decision was intended to promote fear and deter participation in the census by immigrants and their families, including through the President’s remarks that he “will not stand” for efforts to “conceal the number” of immigrants.22
133. The Census Bureau has repeatedly emphasized that “[e]veryone counts,” citizens and noncitizens alike.23 But Defendants’ decision and actions to exclude undocumented
21 See Hansi Lo Wang, Census Door Knocking Cut A Month Short Amid Pressure To Finish Count, Nat’l Pub. Radio (July 30, 2020, 12:29 PM), https://www.npr.org/2020/07/30/896656747/when-does-census-counting-end-bureausends-alarming-mixed-signals; see also See 2020 Census Operational Adjustments Due to COVID-19, U.S. Census Bureau, https://2020census.gov/en/news-events/operationaladjustments-covid-19.html (last visited on July 31, 2020); Albert E. Fontenot, Jr., Adjustment of 2020 Census Operations in Response to COVID-19, U.S. Census Bureau (May 18, 2020), https://www2.census.gov/programs-surveys/decennial/2020/program-management/memoseries/2020-memo-2020_08.pdf.
22 President Donald Trump, Statement from the President Regarding Apportionment (July 21, 2020), https://www.whitehouse.gov/briefings-statements/statement-president-regardingapportionment/. 23 See, e.g., Census Bureau, Setting the Record Straight, https://2020census.gov/en/newsevents/rumors.html.
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immigrants from the apportionment base do the opposite. Excluding undocumented immigrants from the apportionment count communicates to immigrants that their census responses are less valuable and less important than those of citizens.
134. As John Thompson, a former Director of the Census Bureau, testified to Congress, the Presidential Memorandum “has a high potential to reduce the likelihood of census participation in hard to count populations, including non-citizens and immigrants.” The Presidential Memorandum “will increase the fears of many in the hard to count community that their data will not be safe,” likely resulting in “increased nonparticipation and increased undercounts of these populations.”24
135. Many federal programs rely on the population figures collected in the decennial census to distribute federal funds among states and local governments. At least 320 federal domestic financial assistance programs rely on census data to allocate money; in fiscal year 2016, these programs “allocated about $900 billion using census-derived data.” New York, 351 F. Supp. 3d at 596. These programs support essential services for Plaintiffs, including healthcare, public education, social services, and infrastructure development. The reduction in census participation caused by Defendants’ announcement that they will exclude undocumented immigrants from the apportionment base will harm Plaintiffs by depriving them of their statutory fair share of federal funding and removing crucial resources for important government services.
136. Finally, by deterring immigrants and their families from responding to the decennial census, Defendants’ decision to exclude undocumented immigrations from the
24 Counting Every Person: Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks: Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 8 (2020) (statement of Rep. Carolyn B. Maloney, Chairwoman, H. Comm. on Oversight & Reform).
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apportionment base will degrade the quality of census data. As census self-response rates decline, the quality of the data—including information relating to population subgroups and their characteristics—worsens. But Plaintiffs “rely on accurate data to perform essential governmental functions,” including to draw school zones, deploy health care resources, and make infrastructure decisions. Id. at 600. Defendants’ decision will therefore undermine Plaintiffs’ interests in using accurate census data to perform critical governmental functions. VI. Defendants have not identified any reliable method to accurately enumerate the
population of undocumented immigrants. 137. Defendants cannot reliably exclude undocumented immigrants from the apportionment count. Just months ago, the Federal Government represented in separate litigation that there is a “lack of accurate estimates of the resident undocumented population” on a stateby-state basis.25 138. Although a previous executive order suggests that the Census Bureau may rely on administrative records to identify noncitizens, see 84 Fed. Reg. at 33,821, many noncitizens are lawfully present; and administrative records cannot provide sufficiently reliable or accurate information about whether noncitizens are undocumented, particularly for actual enumeration and apportionment purposes. Indeed, administrative records are “weak in their coverage of undocumented aliens because programs typically require documentation that many
25 Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1) Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv00772-RDP (N.D. Ala. Mar. 13, 2020).
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undocumented aliens do not have.”26 The limited administrative records available with respect to undocumented immigrants are incomplete, outdated, and often inaccurate.
139. For example, the Department of Homeland Security (DHS) recently acknowledged that determining immigration status from their records is “challenging,” given the “the decentralized nature of admission and immigration information, as well as the lack of a nationwide departure control system.”27 DHS has acknowledged that time lags between collecting and reporting data mean that “data accuracy issues may arise.”28 Even when used in combination, existing administrative records are inadequate to ascertain reliably whether individuals are undocumented.
140. Although the federal government has already suggested that they may resort to “statistical modeling” to estimate the undocumented population in furtherance of the Presidential Memorandum, the Census Bureau has not yet “formulated a methodology,”29 and Defendants have not articulated how such statistical modeling will comport with their constitutional obligation to conduct an “actual Enumeration.” U.S. Const. art. 1, § 2, cl. 3.
141. Despite Defendants’ failure to identify any reliable method to accurately enumerate the population of undocumented immigrants, Defendants have already decided to report that population to the President and to exclude that population from the tabulation of total
26 John L. Czajka, Can Administrative Records Be Used to Reduce Nonresponse Bias?, 645 Annals Am. Acad. Pol. & Social Sci. 171, 175 (2013). 27 Department of Homeland Security, Privacy Impact Assessment for the Department of Homeland Security Immigration-Related Information Sharing with the U.S. Census Bureau, 2, 11 (Dec. 20, 2019), https://www.dhs.gov/sites/default/files/publications/privacy-pia-dhs079sharingwithcensus-december2019.pdf. 28 Id. at 6. 29 Hansi Lo Wang (@hansilowang), Twitter (July 22, 2020, 10:58 AM), https://twitter.com/hansilowang/status/1285952274410409985.
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population reported to Congress. Defendants’ commitment to proceeding on this course of action without regard to the unreliability or inaccuracy of their underlying enumeration demonstrates that they have prejudged the decision, violates their statutory obligations to report total population, and confirms the irrational and arbitrary nature of their decision and actions to exclude undocumented immigrants from the actual enumeration and apportionment base.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (U.S. Constitution article I, section 2, clause 3; U.S. Constitution amend. XIV, sec. 2) 142. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 143. The Constitution requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2; see id. art. I, § 2, cl. 3. The Constitution also requires that the number of persons in each State that constitute the apportionment base “shall be determined” according to an “actual Enumeration.” Id. art. I, § 2, cl. 3. 144. Undocumented immigrants are persons. Plyler, 457 U.S. at 210 (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”). 145. Defendants’ decision to exclude undocumented immigrants from the apportionment base for the purpose of reapportionment of Representatives following the 2020 Census, as well as any action they take to implement or further that decision, violates the constitutional command to apportion Representatives “counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. Defendants’ decision further violates the
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Constitution by apportioning Representatives following the 2020 Census based on information other than the total numbers of persons in each State determined by the “actual Enumeration.”
146. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. SECOND CLAIM FOR RELIEF
(U.S. Constitution amend. V—Due Process Clause) 147. Plaintiff States incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 148. Under the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution, the federal government cannot deny to any person the equal protection of its laws. The Due Process Clause specifically prohibits the federal government from discriminating against individuals on the basis of race, ethnicity, and national origin. U.S. Const. amend. V. 149. Defendants’ decision to exclude undocumented immigrants from the apportionment base is motivated by discriminatory animus toward Hispanics and immigrant communities of color. This animus is reflected in Defendants’ repeated statements vilifying these communities. 150. The highly unusual chronology of events, sharp departure from centuries of past practice, articulation of a pretextual reason for Defendants’ now-enjoined efforts to demand citizenship information on the decennial census questionnaire, and disproportionate burden of Defendants’ decision on Hispanics and immigrant communities of color further indicate that Defendants’ decision is motivated by unconstitutional discriminatory purpose. 151. By excluding undocumented immigrants from the apportionment base, Defendants intend to reduce political power, influence, and funding resources among Hispanic and immigrant communities as compared to non-Hispanic whites.
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152. Defendants’ violation causes ongoing harm to Plaintiff States and their residents. THIRD CLAIM FOR RELIEF (U.S. Constitution amend. X)
153. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint.
154. The Tenth Amendment prohibits the federal government from coercing states and localities to legislate or promote policies that capitulate to federal interests.
155. Defendants’ decision to exclude undocumented immigrants from the apportionment count punishes Plaintiffs for refusing to assist in the enforcement of federal immigration law, in an attempt to coerce Plaintiffs to change their policies. 85 Fed. Reg. at 44,680.
156. The Tenth Amendment requires the federal government to respect the equal sovereignty of the sovereign states.
157. Without adequate justification, Defendants’ decision to exclude undocumented immigrants from the apportionment count impermissibly targets certain states for unfavorable treatment because of their refusal to assist in the enforcement of federal immigration law. 85 Fed. Reg. at 44,680.
158. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. FOURTH CLAIM FOR RELIEF
(Administrative Procedure Act, 5 U.S.C. § 706) 159. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint.
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160. The Administrative Procedure Act provides that the Court “shall” “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
161. Defendants’ decision to exclude undocumented immigrants from the apportionment base, as well as any action they take to implement or further that decision, is arbitrary and capricious because it is contrary to the evidence before the agency and fails to consider important aspects of the problem, including that Defendants lack data reliably to exclude undocumented immigrants from the apportionment base.
162. Defendants’ decision and any implementing actions they undertake are also not in accordance with law because the Census Act requires the Secretary to tabulate and report to the President a tabulation of “total population by States . . . as required for apportionment of Representatives in Congress.” 13 U.S.C. § 141(b).
163. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. FIFTH CLAIM FOR RELIEF
(Ultra Vires—Violation of Census Act, 2 U.S.C. § 2a; 13 U.S.C. § 141) 164. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 165. The President’s Memorandum violates 2 U.S.C. § 2a and 13 U.S.C. § 141, which together comprise a statutory scheme enacted by Congress to govern the decennial Census and associated reapportionment of seats in the House of Representatives. 166. These provisions unambiguously require the President to use only a single source of information for purposes of his or her statutorily required apportionment statement: the decennial census’s count of total population by state.
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167. The report the President must receive is required to state “[t]he tabulation of total population by States under subsection (a) of this section,” with that subsection requiring the “decennial census of population” as of April 1 of a census year. 13 U.S.C. § 141(a), (b). So the report the President receives must be a report of “total population” based on census results.
168. The President’s apportionment report likewise must be based on the “whole number of persons in each State . . . as ascertained under [the census],” 2 U.S.C. § 2a (emphasis added), and contain an apportionment of representatives based on a mathematical method “known as the method of equal proportions.”
169. Other than the exclusion for “Indians not taxed” (as also provided for in the Fourteenth Amendment), there is no statutory basis for any other exclusion from the apportionment base. Nor is there any basis to conclude these statutory commands leave any room for exclusion from a State’s total population of any person based on alienage or immigration status. Indeed, in the 150 years since the ratification of the Fourteenth Amendment, neither Congress nor the Executive has ever done so. Each State’s total population has long been understood to rely on a person’s usual residence. Franklin v. Massachusetts, 505 U.S. 788, 80405 (1992) (describing use of “usual residence,” “usual place of abode,” “inhabitant,” and “usual resident” in the “first enumeration Act”) (citing Act of Mar. 1, 1790, § 5, 1 Stat. 103).
170. By requiring one or more Commerce Department reports to the President estimating population to be used for apportionment purposes that is different from the enumeration of total population determined in the Census, the Memorandum violates section 141.
171. Similarly, by stating that the President will transmit to Congress total population figures for each State, and an apportionment of House seats, with an excluded population of
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certain aliens, the Memorandum violates 2 U.S.C. § 2a because it unambiguously would rely on data that is not the “whole number of persons in each State” as ascertained in the census and would not compute an apportionment based on the “method of equal proportions” Congress adopted.
172. The President is simply not free to take Congress’s assignment of an essentially mathematical function—to perform, based on the method of equal proportions, an apportionment based solely on the decennial census count of population—but exclude any category of enumerated persons that the Constitution and the Congress have instructed be included.
173. The President’s Memorandum thus is ultra vires. See, e.g., Mountain States Legal Foundation v. Bush, 306 F. 3d. 1132, 1136 (D.C. Cir. 2002); Chamber of Commerce of United States v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“When an executive acts ultra vires, courts are normally available to reestablish the limits on his authority. . . . That the executive's action here is essentially that of the President does not insulate the entire executive branch from judicial review.”).
174. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court: 1. Declare that Defendants’ decision to exclude undocumented immigrants from the apportionment base following the 2020 Census, as well as any action they take to implement or further that decision, is unauthorized by and contrary to the Constitution and laws of the United States; 2. Declare that Defendants’ decision to exclude undocumented immigrants from the apportionment base following the 2020 Census is intentionally discriminatory in violation of the equal protection component of the Due Process Clause of the Fifth Amendment;
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3. Declare that Defendants’ decision and any implementing actions they take are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A);
4. Enjoin Defendants and all those acting on their behalf from excluding undocumented immigrants from the apportionment base following the 2020 Census, or taking any action to implement or further such a policy;
5. Issue an order holding unlawful, vacating, and setting aside the decision to exclude undocumented immigrants from the apportionment base, as well as any action taken to implement or further that decision;
6. Issue a writ of mandamus compelling the Secretary of Commerce to tabulate and report to the President the total population by States under 13 U.S.C § 141(b) based solely on the total number of persons in each State, including undocumented immigrants, without providing any information about the number of undocumented immigrants in each State.
7. Issue a writ of mandamus compelling the President to transmit to Congress pursuant to 2 U.S.C. § 2a(a) a statement of the whole number of persons in each State, 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, based on the total number of residents of each state, including undocumented immigrants.
8. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees; and
9. Grant such other and further relief as the Court deems just and proper.
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DATED: August 3, 2020
Steven C. Wu Deputy Solicitor General
Judith N. Vale Senior Assistant Solicitor General
Of Counsel
PHILIP J. WEISER Attorney General of the State of Colorado By: /s/ Eric R. Olson Eric R. Olson,* Solicitor General Office of the Attorney General Colorado Department of Law 1300 Broadway, 10th Floor Denver, CO 80203 Phone: (720) 508-6548 eric.olson@coag.gov Attorney for the State of Colorado

Respectfully submitted,
LETITIA JAMES Attorney General of the State of New York
By: /s/Elena Goldstein Elena Goldstein
Deputy Chief, Civil Rights Bureau Matthew Colangelo
Chief Counsel for Federal Initiatives Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6057 Matthew.Colangelo@ag.ny.gov
Attorneys for the State of New York
WILLIAM TONG Attorney General of Connecticut
By: /s/ Joshua Perry Joshua Perry Special Counsel for Civil Rights Office of the Attorney General 165 Capitol Avenue Hartford, CT 06106 Phone: (860) 808-5020 Joshua.Perry@ct.gov
Attorney for the State of Connecticut

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KATHLEEN JENNINGS Attorney General of Delaware
By: /s/ Vanessa L. Kassab Christian Douglas Wright Director of Impact Litigation Vanessa L. Kassab Deputy Attorney General Delaware Department of Justice 820 N. French Street, 5th Floor Wilmington, DE 19801 Phone: (302) 577-8600 vanessa.kassab@delaware.gov
Attorneys for the State of Delaware
CLARE E. CONNORS Attorney General of the State of Hawai‘i
/s/ Nicholas M. McLean Nicholas M. McLean
Deputy Solicitor General Department of the Attorney General State of Hawai‘i 425 Queen Street Honolulu, HI 96813 (808) 586-1360 nicholas.mclean@hawaii.gov
Attorney for the State of Hawai‘i

KARL A. RACINE Attorney General for the District of Columbia
By: /s/ Kathleen Konopka Kathleen Konopka
Deputy Attorney General Brendan B. Downes* James Graham Lake*
Assistant Attorneys General Public Advocacy Division Office of the Attorney General 441 4th Street NW Suite 600 South Washington, DC 20001 Phone: (202) 724-6610 Fax: (202) 741-0444 Kathleen.Konopka@dc.gov
Attorneys for the District of Columbia
KWAME RAOUL Attorney General of the State of Illinois
/s/ Jeffrey J. VanDam Jeffrey J. VanDam, Public Interest Counsel Office of the Illinois Attorney General 100 W. Randolph Street Chicago, IL 60601 Tel. (312) 814-3400 Fax (312) 814-3212 jvandam@atg.state.il.us
Attorney for the State of Illinois

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AARON M. FREY Attorney General of the State of Maine
/s/ Susan P. Herman Susan P. Herman* Chief Deputy Attorney General 6 State House Station Augusta, ME 04333-0006 (207) 626-8814 susan.herman@maine.gov
Attorney for Plaintiff State of Maine
MAURA HEALEY Attorney General of the Commonwealth of Massachusetts
/s/ Ann E. Lynch Ann E. Lynch* Miranda M. Cover*
Assistant Attorneys General Public Protection & Advocacy Bureau Massachusetts Attorney General’s Office One Ashburton Place Boston, MA 02108 Phone: (617) 727-2200 Fax: (617) 727-5762 ann.lynch@mass.gov mercy.cover@mass.gov

BRIAN E. FROSH Attorney General of the State of Maryland
/s/ Andrea Trento Andrea Trento, Assistant Attorney General Civil Litigation Division Maryland Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202 Phone: (410) 576-6472 atrento@oag.state.md.us
Attorney for the State of Maryland
DANA NESSEL Attorney General of the State of Michigan
/s/ Christina M. Grossi Christina M. Grossi (P67482) Assistant Attorney General Michigan Department of Attorney General 525 W. Ottawa Street Lansing, MI 48934 GrossiC@michigan.gov
Attorney for the State of Michigan

Attorneys for the Commonwealth of Massachusetts

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KEITH ELLISON Attorney General of the State of Minnesota

AARON D. FORD Attorney General of the State of Nevada

/s/ Jacob Campion Jacob Campion,* Assistant Attorney General Office of the Minnesota Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (tel) 651-757-1459 (fax) 651-282-5832 jacob.campion@ag.state.mn.us

By: /s/ Heidi Parry Stern Heidi Parry Stern, Solicitor General Office of the Nevada Attorney General 555 E. Washington Ave., Ste. 3900 Las Vegas, NV 89101 (775) 684-1136 HStern@ag.nv.gov

Attorney for the State of Minnesota

Attorney for the State of Nevada

GURBIR S. GREWAL

HECTOR BALDERAS

Attorney General of the State of New Jersey Attorney General of New Mexico

By: /s/ Mayur P. Saxena Mayur P. Saxena, Assistant Attorney General Marie Soueid, Deputy Attorney General Office of the Attorney General 25 Market Street Trenton, NJ 08625 Phone: (609) 376-2564 Marie.Soueid@law.njoag.gov
Attorneys for the State of New Jersey

By: /s/ Tania Maestas Tania Maestas Chief Deputy Attorney General P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508 tmaestas@nmag.gov
Attorney for the State of New Mexico, by and through Attorney General Hector Balderas

JOSHUA H. STEIN Attorney General of the State of North Carolina

ELLEN F. ROSENBLUM Attorney General of the State of Oregon

By: /s/ Sripriya Narasimhan Sripriya Narasimhan* Deputy General Counsel North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 Tel. (919) 716-6421 SNarasimhan@ncdoj.gov

/s/ Brian de Haan Brian de Haan, Assistant Attorney General Trial Attorney Tel. (971) 673-1880 Fax (971) 673-5000 brian.a.dehaan@doj.state.or.us
Attorney for the State of Oregon

Attorney for the State of North Carolina

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JOSH SHAPIRO Attorney General of the Commonwealth of Pennsylvania
Michael J. Fischer Chief Deputy Attorney General
/s/ Aimee D. Thomson Aimee D. Thomson Jacob B. Boyer Deputy Attorneys General 1600 Arch Street, Suite 300 Philadelphia, PA 19103 Tel. (267) 940-6696 athomson@attorneygeneral.gov

PETER F. NERONHA Attorney General of the State of Rhode Island
/s/ Justin J. Sullivan Justin J. Sullivan*, Special Assistant Attorney General Office of the Rhode Island Attorney General 150 South Main St. Providence, RI 02903 Phone: (401) 274-4400, ext. 2007 Fax: (401) 222-2995 jjsullivan@riag.ri.gov
Attorneys for the State of Rhode Island

Attorneys for the Commonwealth of Pennsylvania
THOMAS J. DONOVAN, JR. Attorney General of the State of Vermont

MARK R. HERRING Attorney General of the Commonwealth of Virginia

/s/ Benjamin D. Battles

/s/ Michelle S. Kallen

Benjamin D. Battles, Solicitor General

Michelle S. Kallen,* Deputy Solicitor General

Julio A. Thompson*

202 North Ninth Street

Assistant Attorney General, Civil Rights Unit Richmond, VA 23219

Office of the Vermont Attorney General

Tel. (804) 786-7704

109 State Street

Fax (804) 371-0200

Montpelier, VT 05609

MKallen@oag.state.va.us

Tel. (802) 828-5500

Fax (802) 828-3187

Attorneys for the Commonwealth of Virginia

Benjamin.Battles@vermont.gov

Attorneys for the State of Vermont

50

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ROBERT W. FERGUSON Attorney General of the State of Washington
/s/ Laura K. Clinton Laura K. Clinton* Assistant Attorney General Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 LauraC5@atg.wa.gov (206) 233-3383
Peter Gonick, Deputy Solicitor General Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 Tel. (360) 753-6245 peterg@atg.wa.gov

JOSHUA L. KAUL Attorney General of the State of Wisconsin
s/ Steven C. Kilpatrick Steven C. Kilpatrick* Assistant Attorney General Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 Tel. (608) 266-1792 Fax (608) 267-2223 kilpatricksc@doj.state.wi.us
Attorney for State of Wisconsin

Attorneys for the State of Washington
MATTHEW JERZYK City Solicitor for the City of Central Falls

MARK A. FLESSNER Corporation Counsel of the City of Chicago

/s Matthew Jerzyk Matthew Jerzyk* City Solicitor City of Central Falls 580 Broad Street Central Falls, RI 02863 Tel. (401) 727-7422 MJerzyk@CentralFallsRI.us

/s Stephen J. Kane Stephen J. Kane,* Deputy Corporation Counsel Rebecca Hirsch,* Assistant Corporation Counse City of Chicago Law Department 121 North LaSalle Street, Room 600 Chicago, IL 60602 Tel. (312) 744-8143 Stephen.kane@@cityofchicago.org Rebecca.hirsch2@cityofchicago.org

51

Case 1:20-cv-05770-JMF Document 34 Filed 08/03/20 Page 52 of 54

ZACH KLEIN
Columbus City Attorney
/s Richard N. Coglianese Richard N. Coglianese,* Assistant City Attorney Lara N. Baker-Morrish,* Assistant City Attorney 77 North Front Street, 4th Floor Columbus, Ohio 43215 (tel) 614-645-7385 (fax) 614-645-6949 rncoglianese@columbus.gov lnbaker-morrish@columbus.gov

JAMES E. JOHNSON Corporation Counsel of the City of New York
/s Aaron Bloom Aaron Bloom Joseph Pepe Tonya Jenerette 100 Church Street New York, NY 10007 Tel. (212) 356-4055 abloom@law.nyc.gov

MARCEL S. PRATT
Solicitor of the City of Philadelphia
/s Marcel S. Pratt Marcel S. Pratt,* City Solicitor Diana P. Cortes*
Chair, Litigation Group Eleanor N. Ewing,* Chief Deputy Solicitor Benjamin H. Field*
Divisional Deputy City Solicitor Michael W. Pfautz, Assistant City Solicitor City of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Tel. (215) 683-5000 Fax (215) 683-5299 marcel.pratt@phila.gov

OFFICE OF THE PHOENIX CITY ATTORNEY
Cris Meyer, City Attorney
/s Patricia J. Boland Patricia J. Boland* Assistant Chief Counsel City of Phoenix Law Department 200 West Washington, Suite 130 Phoenix, AZ 85003-1611 Tel. (602) 262-6761 Patricia.Boland@phoenix.gov

52

Case 1:20-cv-05770-JMF Document 34 Filed 08/03/20 Page 53 of 54

YVONNE S. HILTON City Solicitor of the City of Pittsburgh

JEFFREY DANA City Solicitor for the City of Providence

/s Emily C. McNally Emily C. McNally,* Assistant City Solicitor Michael E. Kennedy, Associate City Solicitor City of Pittsburgh Law Department 414 Grant Street 313 City-County Building Pittsburgh, PA 15219 Tel. (412)255-2613 Fax. (412)255-0711 emily.mcnally@pittsburghpa.gov

/s Jeffrey Dana Jeffrey Dana,* City Solicitor City of Providence 444 Westminster Street Providence, RI 02903 401-680-5333 JDana@providenceri.gov

DENNIS J. HERRERA

CITY OF SEATTLE

City Attorney for the City and County of San City of Seattle City Attorney

Francisco

/s Peter S. Holmes

/s Dennis J. Herrera

Peter S. Holmes,* City Attorney

Dennis J. Herrera,* City Attorney

Erica R. Franklin, Assistant City Attorney

Jesse C. Smith, Chief Assistant City Attorney Ghazal Sharifi, Assistant City Attorney

Ronald P. Flynn, Chief Deputy City Attorney 701 Fifth Avenue, Suite 2050

Yvonne R. Meré

Seattle, WA 98104-7097

Chief of Complex and Affirmative Litigation Tel. (206) 684-8200

Erin Kuka,* Deputy City Attorney

Fax (206) 684-4648

Neha Gupta, Deputy City Attorney

Peter.Holmes@seattle.gov

San Francisco City Attorney’s Office

Erica.Franklin@seattle.gov

City Hall, Room 234

Ghazal.Sharifi@seattle.gov

1 Dr. Carlton B. Goodlett Place

San Francisco, CA 94102

Tel. (415) 554-4229

Fax (415) 554-4715

Erin.Kuka@sfcityatty.org

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ROLANDO L. RIOS Special Counsel for Hidalgo and Cameron Counties
/s Rolando Rios Rolando Rios* Special Counsel for Hidalgo and Cameron Counties 115 E. Travis, Suite 1645 San Antonio, TX 78205 (210) 222-2102 rrios@rolandorioslaw.com

JO ANNE BERNAL
El Paso County Attorney
/s Jo Anne Bernal Jo Anne Bernal,* County Attorney Ian Kaplan, Assistant County Attorney El Paso County Attorney’s Office 500 E. San Antonio, Room 503 El Paso, TX 79901 Tel. (915) 546-2050 Joanne.bernal@epcounty.com Ian.kaplan@epcounty.com

GARY W. KUC
County Solicitor of Howard County
/s Gary W. Kuc Louis P. Ruzzi, Senior Assistant County Solicitor Tsega Girma,* Senior Assistant County Solicitor Office of Law 3450 Court House Drive Ellicott City, Maryland 21043 Tel. (410) 313-2104 Fax (410) 313-3292 lruzzi@howardcountymd.gov tgirma@howardcountymd.gov

LESLIE J. GIRARD
Monterey County Counsel
/s Leslie J. Girard Leslie J. Girard, County Counsel Susan K. Blitch, Assistant County Counsel William M. Litt, Deputy County Counsel Office of the County Counsel County of Monterey 168 West Alisal St., 3d Floor Salinas, CA 93901 Tel. (831) 755-5045 Fax (831) 755-5283 GirardLJ@co.monterey.ca.us LittWM@co.monterey.ca.us

UNITED STATES CONFERENCE OF MAYORS
/s John Daniel Reaves John Daniel Reaves* General Counsel United Conference of Mayor 1750 K Street, N.W., 11th Floor Washington, D.C. 20006 Tel. (202) 285-7482 jdreaves@usa.net

* Application for pro hac vice admission forthcoming

54

 
 Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al., Plaintiffs,

v.
DONALD J. TRUMP, in his official capacity as President of the United States of America, et al.,
Defendants.

Case No. 20-CV-5770 (RCW) (PWH) (JMF)

BRIEF OF THE U.S. HOUSE OF REPRESENTATIVES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 2 of 32
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE................................................................................................. 1
INTRODUCTION AND SUMMARY ........................................................................................... 2
ARGUMENT .................................................................................................................................. 3
I. The Memorandum Violates the Constitutional and Statutory Requirement of Apportionment Based on the Total Population................................................................... 3 A. The Constitution’s Text, History, and Purpose Require Apportionment Based on the Total Population ................................................................................ 4 B. Congress Has Long Understood the Constitution to Require Apportionment Based on Total Population and Has Implemented that Requirement by Statute........................................................................................... 7 C. The Executive Branch Has Consistently Recognized the Constitutional Requirement of Apportionment Based on Total Population................................. 10 D. The Memorandum Is Invalid Under the Constitution and Applicable Statutes .................................................................................................................. 13
II. The Memorandum Harms the Integrity of the House and Public Perceptions of its Legitimacy ........................................................................................................................ 15 A. The Memorandum Continues Efforts to Manipulate the Census, Undermining the Reality and Perception of Impartiality...................................... 16 B. The Memorandum Will Result in a Flawed and Inaccurate Apportionment........ 19 C. The Memorandum Will Distort the Composition of the House ........................... 22
CONCLUSION............................................................................................................................. 24

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 3 of 32
TABLE OF AUTHORITIES
Cases Alabama v. Dep’t of Commerce, No. 2:18-cv- 00772-RDP (N.D. Ala. Mar. 13, 2020) .............. 15 Assembly of State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916 (9th Cir. 1992) .................. 21 Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ................................................ 18, 20, 21 Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) ......................... 15, 16 Evenwel v. Abbott, 136 S. Ct. 1120 (2016) ....................................................................... 4, 5, 6, 24 Fed. for Am. Immigration Reform v. Klutznick, 486 F. Supp. 564 (D.D.C. 1980) ................ passim Franklin v. Massachusetts, 505 U.S. 788 (1992).......................................................................... 10 New York v. DHS, __ F.3d __, 2020 WL 4457951 (2d Cir. Aug. 4, 2020) .................................. 13 New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y. 2019)................. 17, 18, 22 NLRB v. Noel Canning, 573 U.S. 513 (2014) ............................................................................... 13 Plyler v. Doe, 457 U.S. 202 (1982)........................................................................................... 6, 23 Powell v. McCormack, 395 U.S. 486 (1969) ............................................................................ 1, 23 Ridge v. Verity, 715 F. Supp. 1308 (W.D. Pa. 1989) .................................................................... 12 Wesberry v. Sanders, 376 U.S. 1 (1964)......................................................................................... 5 Yick Wo v. Hopkins, 118 U.S. 356 (1896) ...................................................................................... 6 Young v. Klutznick, 652 F.2d 617 (6th Cir. 1981) ........................................................................ 21
Constitutional and Statutory Provisions U.S. Const. Art. I, § 2, cl. 3.................................................................................................... passim U.S. Const. Art. I, § 3 ................................................................................................................... 23 U.S. Const. Art. II, § 1, cl. 2 ........................................................................................................... 4
ii

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 4 of 32
U.S. Const. Amend. XVII ............................................................................................................. 23 U.S. Const. Amend. XIV ....................................................................................................... passim 13 U.S.C. § 141............................................................................................................... 2, 9, 15, 20 2 U.S.C. § 2a ....................................................................................................................... 1, 2, 3, 9 20 Stat. 475 § 8 (1879).................................................................................................................... 4
Other Authorities 1 Records of the Federal Convention of 1787 (M. Farrand ed. 1911)...................................... 5, 24 1980 Census: Counting Illegal Aliens: Hearing Before the S. Subcomm. on Energy, Nuclear
Proliferation, & Fed. Services of the Comm. on Gov’tl Affairs (1980 Census), 96th Cong. 10 (1980) .......................................................................................................................................... 8 83 Fed. Reg. 5,525 (2018) ............................................................................................................ 11 85 Fed. Reg. 44,679 (2020) ................................................................................................... passim 39 Op. Att’y Gen. 518 (1940) ......................................................................................................... 4 71 Cong. Rec. 1821 (1929) ............................................................................................................. 8 86 Cong. Rec. 4372 (1940) ............................................................................................................. 8 Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998).................................. 6 America Counts Staff, Responding to the Census Will Help Plan Health Care Programs for the Next Decade, U.S. Census Bureau (July 13, 2020), https://perma.cc/8TL2-6A2P .................. 22 Black’s Law Dictionary (11th ed. 2019)......................................................................................... 4 Brief for the United States as Amicus Curiae Supporting Appellees, Evenwel v. Abbott, No. 14940, 2015 WL 5675829 (2015)................................................................................................. 24 Carroll D. Wright, History and Grown of the U.S. Census, Prepared for the Senate Committee on the Census, Department of Labor (1900).................................................................................. 10 Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) .................................................................... 5, 6, 7 Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1) Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, No. 2:18-cv- 00772-RDP
iii

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 5 of 32
(N.D. Ala. Mar. 13, 2020)......................................................................................................... 15 Department of Homeland Security, Population Estimates: Illegal Alien Population Residing in
the United States: January 2015 (Dec. 2018), https://perma.cc/MM2Q-WBH3 .................... 15 Email from Brooke Alexander, Executive Assistant to the Secretary, Dep’t of Com., to Hilary
Geary (Apr. 5, 2017, 4:24 PM), https://perma.cc/8NJF-T73G?type=image ............................ 17 Email from Kris Kobach, Kansas Secretary of State, to Secretary Wilbur L. Ross, Jr., Dep’t of
Com. (July 14, 2017, 9:12 AM), https://perma.cc/P2NU-7S5P?type=image........................... 17 Email from Kris Kobach, Secretary of State of Kansas, to Wendy Teramoto, Chief of Staff,
Dep’t of Com. (July 21, 2017, 4:34 PM), https://perma.cc/8WQG-QYEH?type=image......... 17 Email from Ron Jarmin, Acting Director, Census Bureau, to Arthur Gary, Gen. Counsel, Justice
Management Division, Dep’t of Justice, (Dec. 22, 2017, 3:32 PM)......................................... 17 Federal Defs.’ Post-Trial Proposed Findings, 15 Arg. Mem., Fed. for Am. Immigration Reform v.
Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980)............................................................... 12 H.J. Res. 20, 71st Cong. (1931) ...................................................................................................... 8 H.J. Res.101, 71st Cong. (1931) ..................................................................................................... 8 H.J. Res.263, 71st Cong. (1931) ..................................................................................................... 8 H.J. Res.356, 71st Cong. (1931) ..................................................................................................... 8 H. Res. 484, 71st Cong. (1931)....................................................................................................... 8 H.R. 3639, 100th Cong. (1987)....................................................................................................... 8 H.R. 3797, 111th Cong. (2011)....................................................................................................... 8 Hansi Lo Wang, Republicans Signal They’re Willing to Cut Census Counting Short, NPR (July
28, 2020), https://perma.cc/VXX4-MF7P ................................................................................ 20 Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 12 (Feb. 12, 2020)........... 11 Jeffrey S. Passel, Measuring Illegal Immigration: How Pew Research Center Counts
Unauthorized Immigrants in the U.S., Pew Research Center (July 12, 2019), https://perma.cc/5ZP8-77KL .................................................................................................... 15 Jennifer D. Williams, Cong. Research Serv., Answers to Selected Questions About the Decennial Census (Apr. 27, 2017) ............................................................................................................... 9
iv

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 6 of 32
Jens Manuel Krogstad, et al., 5 Facts About Illegal Immigration in the U.S., Pew Research Ctr. (June 12, 2019), https://perma.cc/YQU8-J9E3......................................................................... 14
Jynnah Radford, Key Findings About U.S. Immigrants, Pew Research Ctr. (June 17, 2019), https://perma.cc/USU7-L9BM.................................................................................................. 14
Letter from Carol T. Crawford, Assistant Attorney General, to Senator Jeff Bingham (Sept. 22, 1989) ......................................................................................................................................... 12
Letter from Thomas M. Boyd, Acting Assistant Attorney, to Hon. James C. Miller III, Director of Office of Management & Budget (June 29, 1988) ............................................................... 12
Margaret Mikyung Lee & Erika Lunder, Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes, Cong. Research Serv. (Apr. 13, 2012)........ 8, 9
Memorandum from Acting Chairwoman Carolyn B. Maloney to Members of the Committee on Oversight and Reform, Update on Investigation of Census Citizenship Question Since House Held Attorney General Barr and Commerce Secretary Ross in Contempt of Congress (Nov. 12, 2019), https://perma.cc/A4WB-HVAP ............................................................................... 18
Memorandum from Wilbur L. Ross, Jr., Secretary of Commerce, to Karen Dunn Kelley, Under Secretary of Commerce for Economic Affairs, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire (Mar. 26, 2018), https://perma.cc/2XDF-Q7E8 ......... 16
Press Release, H. Comm. on Oversight and Reform, Four Former Census Bureau Directors Testify the Trump Administration’s Attempt to Ban Undocumented Immigrants from 2020 Census is Unconstitutional (July 29, 2020) .............................................................................. 11
Press Release, H. Comm. on Oversight and Reform, Oversight Committee Held Emergency Hearing on Trump Administration’s Unconstitutional Politicization of 2020 Census (July 29, 2020) ......................................................................................................................................... 22
Randy Capps et al., Migration Policy Inst., A Profile of U.S. Children with Unauthorized Immigrant Parents 1 (2016), https://perma.cc/9TDT-BYKL................................................... 23
Remarks by President Trump Before Marine One Departure, White House, (July 5, 2019), https://perma.cc/QK6V-833H ................................................................................................... 18
Response Rates, United States Census 2020, https://2020census.gov/en/response-rates.html..... 21
Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F496H............................................................................................................................................ 1
S. 1688, 111th Cong. (2011) ........................................................................................................... 8
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Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 7 of 32
S. 2366, 96th Cong. (1980) ............................................................................................................. 8 S. Rep. 71-2 (1929) ......................................................................................................................... 9 Statement from the President Regarding Apportionment, White House, (July 21, 2020)
https://perma.cc/PZ5Y-23GS.................................................................................................... 18 Stephanie Ebbs, 2020 Census to end data collection Sept. 30, raising concerns about
undercounting, ABC News (Aug. 4, 2020), https://perma.cc/54KX-NUUB ........................... 21 The Federalist No. 54 (G. Carey & J. McClellan eds. 2001).......................................................... 4 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting (2015),
https://perma.cc/22RT-5EWN. ........................................................................................... 16, 17 Thomas M. Durbin, The 1990 Decennial Census and the Counting of Illegal Aliens, Cong. Rsch.
Serv., 88-62 A (1988) ................................................................................................................. 9 U.S. Census Bureau, Population of The United States in 1860, https://perma.cc/MBR8-AKDU.
................................................................................................................................................... 10 U.S. Census Bureau, Historical Perspective, https://perma.cc/Y6LW-XKF8. ............................ 14 U.S. Census Bureau, Frequently Asked Questions on Congressional Apportionment,
https://perma.cc/2HCH-NYVZ ................................................................................................. 11 U.S. Census Bureau, Computing Apportionment, https://perma.cc/29ZD-9V76. ........................ 11
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INTEREST OF AMICUS CURIAE Amicus curiae, the United States House of Representatives (House),1 respectfully submits this brief in furtherance of its compelling institutional interests in this case. First, the House has a paramount interest in the integrity of its own composition, see Powell v. McCormack, 395 U.S. 486, 548 (1969), which depends upon the lawful and accurate apportionment of Representatives among the States based on the decennial census. Second, the Apportionment and Enumeration Clauses of Article I of the Constitution place responsibility for the census and apportionment with Congress. See U.S. Const. Art. I, § 2, cl. 3 (the enumeration shall be conducted “in such Manner as [Congress] shall by Law direct”). The House therefore has a compelling interest in ensuring that the President and the Secretary of Commerce do not transgress constitutional and statutory constraints in the administration of the census and the certification of the apportionment to Congress. Third, federal law requires the Clerk of the House, on the basis of the apportionment, to notify each State’s governor of the number of Representatives to which the State is entitled. 2 U.S.C. § 2a(b). The House has an interest in the integrity and legality of the process its officers and personnel are directed to carry out. Finally, the House has a powerful interest in ensuring that all of our Nation’s communities—who contribute to the public fisc and are equally subject to its laws—receive the representation in the House to which they are entitled.
1 The Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives has authorized the filing of an amicus brief in this matter. The BLAG comprises the Honorable Nancy Pelosi, Speaker of the House, the Honorable Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip, and “speaks for, and articulates the institutional position of, the House in all litigation matters.” Rules of the U.S. House of Representatives, 116th Cong., Rule II.8(b) (2019), https://perma.cc/M25F-496H. The Republican Leader and Republican Whip dissented.

Case 1:20-cv-05770-JMF Document 107-1 Filed 08/14/20 Page 9 of 32
INTRODUCTION AND SUMMARY By memorandum issued on July 21, 2020, President Trump ordered the exclusion of noncitizens “who are not in a lawful immigration status” from “the reapportionment of Representatives following the 2020 census.” Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679, 44,680 (July 23, 2020) (the Memorandum). The Memorandum justifies that exclusion on the basis of the President’s purported discretion to redefine which U.S. residents qualify as “inhabitants” in determining the total population of each State for purposes of apportionment. Id. at 44,679. The Constitution, as well as the Census and Reapportionment Acts, prohibit the President’s action. Section 2 of the Fourteenth Amendment requires the “counting [of] the whole number of persons in each State,” U.S. Const. Amend. XIV, § 2 (emphasis added), and its Apportionment Clause commands that “Representatives shall be apportioned among the several States according to their respective numbers,” as determined in the enumeration. Id.; see also U.S. Const. Art. I, § 2, cl. 3. Based on this language and the enactment history of the original Constitution and the Fourteenth Amendment, all three branches of the Federal Government have long understood that the Constitution requires the Congressional apportionment base to encompass all “persons” residing in each State—irrespective of citizenship or immigration status. The implementing statutes reflect the Constitution’s clear mandate, requiring “the tabulation of total population by States,” 13 U.S.C. § 141(b), and counting the “whole number of persons in each State,” 2 U.S.C. § 2a(a). The President therefore cannot lawfully transmit an apportionment calculation based on anything other than “the whole number of persons in each State.” Id.
2

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The actions directed by the Memorandum not only violate the law but also threaten serious harm to the integrity of the House and its composition. This Administration’s implementation of the census has been marked by efforts to manipulate the count for apparently political purposes, and the Memorandum is a new and troubling chapter in that history. The Memorandum compounds the perception that the Administration is using the census as a partisan tool designed to enhance the voting power of certain favored groups while suppressing the voting power of others. Even setting these problems aside, the Memorandum’s goal of ascertaining the number of immigrants without lawful status is impossible as a practical matter to do accurately, because any attempt to do so would either use statistical sampling that federal law prohibits or would yield wildly inaccurate figures that would distort the composition of the House. An inaccurate census tainted by partisan political influence will harm the public’s faith in the apportionment, impair effective governance, and undermine the foundational principle, central to the House’s legitimacy, that in our democracy all the people count.
ARGUMENT I. The Memorandum Violates the Constitutional and Statutory Requirement of
Apportionment Based on the Total Population Every tool of constitutional and statutory interpretation demonstrates that the Memorandum is unlawful. The text of the Apportionment and Enumeration Clauses and the Fourteenth Amendment, viewed in light of the history and purpose of those provisions, confirms that apportionment must be based on a count of the total population of all persons. Congress, the courts, and the Executive Branch have consistently interpreted the Constitution to require an allpersons enumeration. Congress has not only enacted statutes that implement the Constitution’s command to count all persons, but has also refused to enact legislation that would accomplish what the Memorandum attempts to achieve by executive fiat.
3

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A. The Constitution’s Text, History, and Purpose Require Apportionment Based on the Total Population
As originally drafted, the Constitution required that all persons be counted for purposes of apportioning seats in the House and allocating electors in the Electoral College, see U.S. Const. Art. I, § 2, cl. 3; id. Art. II, § 1, cl. 2, subject to two notorious and explicitly identified exceptions: Enslaved people were counted as only three-fifths of a person, and “Indians not taxed” were excluded from the total population. Id. Art. I, § 2, cl. 3. The Fourteenth Amendment, ratified in the wake of the Civil War to establish full political representation for all, amended the Enumeration Clause of Article I to remove the Three-Fifths Clause and declare that apportionment of Representatives be based on the “whole number of persons in each State.” U.S. Const. Amend. XIV, § 2.2
The meaning of these provisions is clear. The term “person” includes any “human being,” Black’s Law Dictionary (11th ed. 2019), and necessitates that every individual living in the United States be included in the decennial count. This was the understanding of the Constitution’s framers. James Madison explained in the Federalist Papers that “the aggregate number of representatives allotted to the several states” was to be “founded on the aggregate number of inhabitants,” even though a State could deny many of its residents the franchise. The Federalist No. 54, at 284 (G. Carey & J. McClellan eds., 2001) (quoted in Evenwel v. Abbott, 136 S. Ct. 1120, 1127 (2016)). Alexander Hamilton, speaking in support of apportionment based on total population, stated: “There can be no truer principle than this—that every individual of the
2 The exception for “Indians not taxed” was retained in the Fourteenth Amendment but is no longer applicable. See, e.g., An Act to Provide for Taking the Tenth and Subsequent Censuses, ch. 195 § 8, 20 Stat. 475 (1879) (authorizing the Census Bureau to enumerate all Native Americans); Exclusion of “Indians Not Taxed” When Apportioning Representatives, 39 Op. Att’y Gen. 518, 519–20 (1940) (recommending that the Secretary of Commerce continue enumerating all Native Americans in light of both the Supreme Court’s determination that all Native Americans are subject to federal income tax laws and the uncertainty about the meaning of the constitutional phrase “Indians not taxed”).
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community at large has an equal right to the protection of government.” 1 Records of the Federal Convention of 1787, at 473 (M. Farrand ed., 1911) (quoted in Evenwel, 136 S. Ct. at 1127). The debates at the Constitutional Convention make “abundantly clear” that “when the delegates agreed that the House should represent ‘people’ they intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State’s inhabitants.” Wesberry v. Sanders, 376 U.S. 1, 13 (1964).
The Fourteenth Amendment abandoned the Three-Fifths Clause but otherwise retained total population as the apportionment base, specifying that Representatives must be apportioned “according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. Amend. XIV, § 2 (emphasis added). That the Fourteenth Amendment uses distinct language in other provisions to refer specifically to citizens underscores that the broader reference to “persons” includes all inhabitants, regardless of citizenship status. Compare id., § 1, cl. 2 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .” with id., § 1, cl. 3 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .”).
The ratification history of the Fourteenth Amendment further confirms that the provision encompasses all persons, regardless of immigration status. The framers of the Fourteenth Amendment deliberately chose a total-population basis for the apportionment of Representatives in the House. See Evenwel, 136 S. Ct. at 1127–29; Wesberry, 376 U.S. at 13 (finding it “abundantly clear . . . that in allocating Congress[ional seats] . . . the number assigned to each state should be determined solely by the number of the State’s inhabitants”); see also Cong. Globe, 39th Cong., 1st Sess. 2767 (1866) (remarks of Sen. Jacob Howard) (“Numbers, not voters … [or] property; this is the theory of the Constitution.”).
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The selection of the word “persons” for the apportionment base reflected an understanding that all individuals “have as vital an interest in the legislation of the country as those who actually deposit the ballot.” Evenwel, 136 S. Ct. at 1128 (quoting Cong. Globe, 39th Cong., 1st Sess., 141 (1866) (remarks of Rep. James Blaine)); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 169–72, 217–18 (1998) (emphasizing the framers’ “paradigmatic[]” concern to use the term “persons” to encompass “nonvoting aliens” in the wake of the Supreme Court’s Dred Scott decision). In making this choice, the Amendment’s framers recognized that elected federal officials represent and act in the name of all their constituents, including nonvoting classes, like women (at the time), children, incarcerated persons, and noncitizens.3
In light of the text and history of the Fourteenth Amendment, the Supreme Court has explained that “[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’” under the Fourteenth Amendment. Plyler v. Doe, 457 U.S. 202, 210 (1982). “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sentence of that term.” Id. The references to “persons” in the Fourteenth Amendment therefore “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
Contrary to the Memorandum’s assertion, the Fourteenth Amendment did not leave open the possibility that some classes of state residents would be excluded from the enumeration and
3 See Cong. Globe, 39th Cong., 1st Sess. 141 (1866) (remarks of Rep. James Blaine) (describing rejected amendment’s proposed use of “suffrage instead of population [as] the basis of apportioning Representatives”); id. at 353 (remarks of Rep. Andrew Rogers) (asserting “the States are entitled to representation” for women and children, who “constitute[ed] nearly one half of the population of this country, [but] cannot vote”).
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apportionment. The primary drafter of the Fourteenth Amendment, Representative John Bingham, made clear that the Fourteenth Amendment’s use of the term “whole number of persons” encompasses all persons living in each State, including the “entire immigrant population not naturalized.” Cong. Globe, 39th Cong., 1st Sess. 432 (1866) (remarks of Rep. John Bingham); see also id. at 1256 (remarks of Rep. Henry Wilson) (recognizing that “unnaturalized foreign-born” individuals and others ineligible to vote are included in the census count). Bingham argued vehemently against alternative proposals that would have limited the apportionment base, asserting that “[u]nder the Constitution as it now is and as it always has been, the entire immigrant population of this country is included in the basis of representation.” Id. at 432 (emphasis added); see also id. at 411 (remarks of Rep. Burton Cook) (expressing concern that representation based on number of voters would inappropriately “take[] from the basis of representation all unnaturalized foreigners”).
The unambiguous text and drafting history of Article I and the Fourteenth Amendment thus make clear that the Constitution requires “the population base for purposes of apportionment” to “include[] all persons, including aliens both lawfully and unlawfully within our borders.” Fed’n for Am. Immigr. Reform (FAIR) v. Klutznick, 486 F. Supp. 564, 576 (D.D.C. 1980) (three-judge court).
B. Congress Has Long Understood the Constitution to Require Apportionment Based on Total Population and Has Implemented that Requirement by Statute
Congress has consistently understood that the Constitution mandates apportionment based on all who reside in the United States. Every statute that Congress has ever passed regarding the census has reflected this understanding, and every census has included undocumented immigrants in the apportionment count. FAIR, 486 F. Supp. at 576.
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In light of Congress’s understanding of the constitutional requirement to count all inhabitants, legislative efforts to alter the apportionment to exclude certain noncitizens from the apportionment count have always failed. Immediately after adoption of the Fourteenth Amendment, a proposal to exclude “aliens” from apportionment was defeated in the House. See Cong. Globe, 39th Cong., 1st Sess. 535, 538 (1866) (proposal to exclude); see also id. at 2767 (remarks of Sen. Jacob Howard) (explaining that the “basis of representation” is the “whole population” as “the principle upon which the Constitution itself was originally framed . . . [which] is the safest and most secure principle upon which the Government can rest”).
Subsequent attempts to exclude either all aliens or undocumented immigrants from the apportionment base failed in the Seventy-first, Seventy-sixth, Ninety-sixth, One Hundredth, and One Hundred Eleventh Congresses.4 These efforts were rejected due to a broad recognition that the “statutory exclusion of aliens from the apportionment base would be unconstitutional” absent constitutional amendment. 71 Cong. Rec. 1821 (1929); see also 86 Cong. Rec. 4372 (1940) (remarks of Rep. Emanuel Celler) (“The Constitution says that all persons shall be counted,” including “those aliens here illegally.”); 1980 Census: Counting Illegal Aliens: Hearing Before the S. Subcomm. on Energy, Nuclear Proliferation, & Fed. Services of the Comm. on Gov’tl Affairs (1980 Census), 96th Cong. 10 (1980) (remarks of Sen. Jacob Javits ) (maintaining that the Constitution cannot mean “anything other than as described in Federalist papers, the aggregate
4 See Margaret Mikyung Lee & Erika K. Lunder, Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes, Cong. Research Serv. at 6, n.37 (Apr. 13, 2012) (citing H.J. Res. 20, 101, 263, 356, and 484, 71st Cong. (1931); 86 Cong. Rec. 4372 (1940) (Senate); S. 2366, 96th Cong. (1980)); see also H.R. 3639, 100th Cong. (1987) (House)); H.R. 3797, 111th Cong. (2011) and S. 1688, 111th Cong. (2011).
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number of inhabitants, which includes aliens, legal and illegal.”).5 Congress has routinely
received counsel on this question reaching the same conclusion.6
The statutes that currently implement the Constitution’s Apportionment and Enumeration
Clauses reflect this consistent understanding of the Constitution’s meaning. The Census Act
requires the “tabulation of total population by States . . . as required for the apportionment of
Representatives in Congress among the several States.” 13 U.S.C. § 141(b) (emphasis added).
The Reapportionment Act then requires the President to “transmit to the Congress a statement
showing the whole number of persons in each State . . . as ascertained . . . [by the] decennial
census of the population” and, in turn, to transmit an apportionment of Representatives
calculated based on that full count. 2 U.S.C. § 2a(a) (emphasis added); see also S. Rep. No. 71-
2, at 4–5 (1929) (requiring the President “to report upon a problem in mathematics . . . for which
rigid specifications are provided by Congress itself, and to which there can be but one
mathematical answer”).
5 Although the Senate passed two bills with a provision “prohibit[ing] the use of funds to include illegal aliens in the census for apportionment,” neither of these measures was enacted. Margaret Mikyung Lee & Erika K. Lunder, Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes, Cong. Research Serv. at 13 (2012) (referencing S. 358, § 601, 101st Cong. (1989) and Senate-passed version of H.R. 2991, 101st Cong. (1989)).
6 See Thomas M. Durbin, The 1990 Decennial Census and the Counting of Illegal Aliens, Cong. Rsch. Serv., 88-62 A (1988) (concluding that “aliens, legal and illegal,” are included within “persons” in the Enumeration Clause and “that a constitutional amendment would seem to be necessary to exclude illegal aliens from the decennial census”); Margaret Mikyung Lee & Erika K. Lunder, Cong. Rsch. Serv., Analysis of Whether Unauthorized Aliens Must be Included in the Census 1 (2009) (concluding that the Framers intended that “persons” would be “allinclusive,” so the “apportionment calculation” must be “based on the states’ total resident population,” including “both citizens and noncitizens”); Cong. Rsch. Serv., R41048, Constitutionality of Excluding Aliens from the Census for Apportionment and Redistricting Purposes 2 (2012) (finding “the total resident population of the states . . . includes both citizens and aliens”); Jennifer D. Williams, Cong. Rsch. Serv., Answers to Selected Questions About the Decennial Census 3 (2017) (citing Census Bureau’s analysis concluding “the Constitution specified persons as the basis for apportionment, without regard to citizenship or legal resident status”).
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While the President has certain policy discretion in the administration of the census, his role in the reapportionment process is limited to reporting the “whole number of persons in each State” to Congress. Franklin v. Massachusetts, 505 U.S. 788, 791, 799 (1992). Like the Constitution itself, the statutory framework provides the President with no discretion to deviate from apportioning Congressional districts based on the “total,” “whole,” or “full” population.
C. The Executive Branch Has Consistently Recognized the Constitutional Requirement of Apportionment Based on Total Population
The Executive Branch, throughout both Republican and Democratic administrations, has joined Congress and the Judicial Branch in reading the Constitution to require the enumeration of all persons and the inclusion of all those enumerated in apportionment. In particular, the Census Bureau and the Department of Justice (DOJ) have both acknowledged the constitutional requirement that apportionment account for all persons, including undocumented immigrants.
Since the first census, “[t]he Census Bureau has always attempted to count every person residing in a state on Census day, and the population base for purposes of apportionment has always included all persons, including aliens both lawfully and unlawfully within our borders.” FAIR, 486 F. Supp. at 576. Thus, the census has historically counted individuals who have been present without regard to legal status.7 For instance, enslaved persons who escaped to a free State were counted as inhabitants of that State, despite the fact these individuals were considered under law to be fugitives illegally residing there.8 The Bureau has similarly always relied on total population in making apportionment determinations, because “[t]he apportionment
7 See Margaret Mikyung Lee & Erika K. Lunder, Analysis of Whether Unauthorized Aliens Must be Included in the Census, Cong. Rsch. Serv., 4 (2009) (referencing “reprint[ed] instructions [disseminated] to the Marshals for the 1820 and 1830 censuses” in Carroll D. Wright, History and Grown of the U.S. Census, Prepared for the Senate Committee on the Census, Department of Labor (1900), at 135, 140–41).
8 U.S. Census Bureau, Population of The United States in 1860, at ix–xii, https://perma.cc/MBR8-AKDU (assessing fluctuations in the fugitive slave population).
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population count for each of the 50 states includes the state’s total resident population (citizens and non-citizens).”9 No census has ever systematically excluded undocumented immigrants.10
Recent history is in accord. As recently as 2018, the Census Bureau issued a rule recognizing that the Constitution and federal statutes compel the conclusion that “[f]oreign citizens are considered to be ‘living’ in the United States if, at the time of the census, they are living and sleeping most of the time at a residence in the United States.” Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5,525, 5,530 (2018). Earlier this year, the Director of the Census Bureau told Congress that the Bureau’s directive and mission is to “count everyone, wherever they are living.” Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. 12 (Feb. 12, 2020). And four former Directors of the Census Bureau recently testified before a House committee that President Trump’s effort to exclude undocumented immigrants from the apportionment count was unconstitutional.11
Like the Census Bureau, the DOJ has made clear that enumeration and apportionment must include the entire population, including unauthorized immigrants. In 1980, DOJ correctly observed that removing undocumented immigrants from the census and apportionment counts would constitute “a radical revision of the constitutionally mandated system for allocation of Representatives to the States of the Union and an equally radical revision of the historic mission of the decennial census.” Federal Defs.’ Post-Trial Proposed Findings, 15 Arg. Mem. at 1,
9 U.S. Census Bureau, Frequently Asked Questions on Congressional Apportionment, https://perma.cc/2HCH-NYVZ; see also U.S. Census Bureau, Computing Apportionment, https://perma.cc/29ZD-9V76 (explaining “Equal Proportions Method” of calculating apportionment, used since 1941, relies on “a state’s total population”).
10 See Hearing, Counting Every Person: Safeguarding the 2020 Census, H. Comm. on Oversight & Government Reform (testimony of Kenneth Prewitt and Robert M. Groves).
11 See Press Release, H. Comm. on Oversight & Reform, Four Former Census Bureau Directors Testify the Trump Administration’s Attempt to Ban Undocumented Immigrants from 2020 Census is Unconstitutional (July 29, 2020).
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Klutznick, No. 79-3269 (D.D.C. Feb. 15, 1980) (acknowledging that “for 200 years the decennial census has counted all residents of the states irrespective of their citizenship or immigration status”); see also Ridge v. Verity, 715 F. Supp. 1308, 1311 (W.D. Pa. 1989) (describing DOJ’s argument on behalf of defendants as contending “that they are constitutionally mandated . . . to count all persons in the 1990 census, including illegal aliens, for purpose of apportionment” and that they have done so for 200 years).
DOJ has espoused the same position outside of litigation. In 1988, DOJ’s Office of Legislative Affairs asserted there was a “clear” constitutional mandate to count “all persons, including aliens residing in this country” in the census and “insisted upon their inclusion [in the apportionment base] . . . notwithstanding their acknowledgement that aliens were not bona fide members of the body politic.” Letter from Thomas M. Boyd, Acting Assistant Attorney, to Rep. William D. Ford, House of Representatives (June 29, 1988) (reprinted in 1990 Census Procedures and Demographic Impact on the State of Michigan, U.S. Gov’t Printing Off., 240–44 (1988)). In writing to Members of Congress, the DOJ has recognized that “the original Apportionment and Census Clauses of Article I section two of the Constitution require that inhabitants of States who are illegal aliens be included in the census count.” Letter from Carol T. Crawford, Assistant Attorney General, to Senator Jeff Bingham (Sept. 22, 1989) (reprinted in 135 Cong. Rec. S22,521 (daily ed. Sept. 29, 1989) (noting that DOJ “found no basis for reversing this position”)). These longstanding DOJ analyses correctly reflect the unambiguous historical and legislative record of the Enumeration and Apportionment Clauses.
The consistent historical understanding of the Enumeration and Apportionment Clauses by all three branches establishes an unbroken precedent that the President may not transgress: all persons, regardless of immigration status, are to be counted in the census, and Representatives
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must be apportioned based on that count. Congress is entitled to rely on such uniform judicial, administrative, and legislative treatments of the Constitution’s text. See N.L.R.B. v. Noel Canning, 573 U.S. 513, 525 (2014) (noting that “the longstanding practice of government can inform our determination of what the law is” (internal citation and quotations marks omitted)); cf. New York v. DHS, __ F.3d __, 2020 WL 4457951, at *21 (2d Cir. Aug. 4, 2020).
D. The Memorandum Is Invalid Under the Constitution and Applicable Statutes The Memorandum conflicts with the clear constitutional and statutory command that all persons must be included in the apportionment base, and the rationales offered in support of excluding immigrants without lawful status do not withstand scrutiny. The President asserts that “the term ‘persons in each State’” in the Enumeration Clause “has been interpreted to mean that only the ‘inhabitants’ of each State should be included” within the apportionment base. Excluding Illegal Aliens, 85 Fed. Reg. at 44,679. The Memorandum then reasons that Congress has delegated to the President the discretion “to determine who qualifies as an ‘inhabitant,’” and that this discretion “includes authority to exclude from the apportionment base aliens who are not in a lawful immigration status.” Id. This logical leap fails under the plain language of the Constitution and the applicable statutes. Any discretion the President might have to determine who qualifies as an “inhabitant” does not include the discretion to exclude residents based solely on their immigration status. The inclusion of all “persons” in the Constitution’s mandate for enumeration and apportionment, in addition to the historical reliance on total population for both, establishes that legal status is not a prerequisite for habitancy. The Act of March 1, 1790, passed just three years after ratification of the Constitution, specified that persons be enumerated at their “usual residence.” Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525-01. An individual’s residence is his or her “usual place of abode,” which is assessed without regard to the
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individual’s immigration status. Id. Thus, “[t]he apportionment population base always has included those persons who have established a residence in the United States,” regardless of their legal status.12
Nor could the President plausibly interpret “inhabitants” categorically to exclude immigrants without lawful status. In reality, many immigrants, whatever their legal status, are longstanding members of their communities. While there is no accurate data regarding the actual number of unauthorized immigrants living in the United States, the Pew Research Center estimates that, in addition to 12.3 million lawful permanent residents and 2.2 million temporary lawful residents, an estimated 10.5 million unauthorized immigrants live in the United States.13 Per Pew’s estimates, “[a]bout two-thirds (66%) of unauthorized immigrant adults in 2017 had been in the U.S. more than 10 years,” with at least half of undocumented adults having “lived in the U.S. for a median of 15.1 years.”14 If the President had discretion to read the word “inhabitant” to exclude someone living in the United States for over a decade, then there would be few limits on his ability to expand and contract who is represented in our democracy.
The Memorandum’s attempt to exclude immigrants without lawful status from the apportionment base violates the applicable statutes for an additional reason. The Memorandum implicitly assumes that the census process will provide data on which the President can reliably and accurately determine which persons are immigrants without lawful status, and thus excludable. That assumption is incorrect. The 2020 census does not include any question about citizenship status, let alone address the more complex question whether each person counted is
12 U.S. Census Bureau, Historical Perspective (2020), https://perma.cc/Y6LW-XKF8. 13 Jynnah Radford, Key Findings About U.S. Immigrants, Pew Rsch. Ctr. (June 17, 2019), https://perma.cc/USU7-L9BM. 14 Jens Manuel Krogstad, et al., 5 Facts About Illegal Immigration in the U.S., Pew Rsch. Ctr. (June 12, 2019), https://perma.cc/YQU8-J9E3.
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lawfully present in the United States. Id.; see infra Section II(A). And the Census Bureau itself has announced that it lacks “accurate estimates of the resident undocumented population” in each State.15
Presumably, therefore, to discern the number of people who should be excluded from the enumeration, the Executive Branch would need to resort to the type of statistical sampling methods that the Census Act explicitly prohibits. See 13 U.S.C. §§ 141(a), 195 (prohibiting the use of statistical sampling “for the determination of population for purposes of apportionment of Representatives in Congress among the several States”); U.S. Dep’t of Com. v. U.S. House of Representatives, 525 U.S. 316, 343 (1999) (holding that the use of sampling in the decennial census to complete the enumeration “for apportionment purposes” violates the Census Act).16 Thus, the President not only lacks the discretion he claims, but also could not exercise any such discretion in compliance with the Census Act even if he had it.
II. The Memorandum Harms the Integrity of the House and Public Perceptions of its Legitimacy The census count has direct and substantial stakes for the distribution of political power
across the country. For that reason, an objective and impartial process, resulting in accurate and reliable data, is critical to implementing a constitutionally sound census. See, e.g., Dep’t of Com. v. House, 525 U.S. at 348–49 (Scalia, J., concurring in part) (discussing the need for the census process to pursue “the most accurate way of determining population with minimal possibility of
15 Decl. of Census Bureau Senior Advisor Enrique Lamas, Defs.’ Supp. Rule 26(a)(1) Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Com., No. 2:18-cv-00772RDP (N.D. Ala. Mar. 13, 2020); see infra Section II(B).
16 Both Pew and the Department of Homeland Security use sampling to estimate the number of unauthorized immigrants. See Jeffrey S. Passel, Measuring Illegal Immigration: How Pew Research Center Counts Unauthorized Immigrants in the U.S., Pew Rsch. Ctr. (July 12, 2019), https://perma.cc/5ZP8-77KL; Dep’t of Homeland Sec., Off. of Immigr. Stat., Population Estimates: Illegal Alien Population Residing in the United States: January 2015 (Dec. 2018), https://perma.cc/U8LN-V6Y7.
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partisan manipulation”). The Trump Administration, however, has attempted to manipulate the census in novel and troubling ways, and the Memorandum deepens serious concerns that the Administration’s goal throughout has been to use the enumeration as a means of achieving partisan political ends. The Memorandum will also result in a grossly inaccurate count of the population for apportionment purposes. It therefore poses a direct institutional threat to the House, which draws its legitimacy from the accuracy and integrity of the census upon which its composition is determined.
A. The Memorandum Continues Efforts to Manipulate the Census, Undermining the Reality and Perception of Impartiality
The Memorandum does not arise in isolation. Instead, it is the latest step in the Trump Administration’s broader manipulation of the census process. That pattern began with the attempt to add a citizenship question to the 2020 Census questionnaire—an apparent effort to enhance the political representation of “Republicans and non-Hispanic whites.” 17
In March 2018, the Secretary of Commerce directed the Census Bureau to include a citizenship question on the 2020 Census. In a public memorandum, Secretary Ross claimed that the question was added to help the Department of Justice enforce the Voting Rights Act18—a law intended to protect the political power of racial minorities. During litigation, however, it became clear that the White House had in fact encouraged Secretary Ross to consider adding the question and to speak to Kansas Secretary of State Kris Kobach, who urged Ross to address “the problem” of undocumented residents being counted for apportionment.19 As explained by a
17 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting at 8 (2015), https://perma.cc/22RT-5EWN.
18 Memorandum from Wilbur L. Ross, Jr., Sec’y of Com., to Karen Dunn Kelley, Under Sec’y of Commerce for Econ. Affairs, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire, 1 (Mar. 26, 2018), https://perma.cc/2XDF-Q7E8.
19 See Email from Brooke Alexander, Executive Assistant to the Sec’y, Dep’t of Com., to Hilary Geary (Apr. 5, 2017, 4:24 PM), https://perma.cc/8NJF-T73G?type=image; Email from
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Republican gerrymandering expert who consulted with both White House staff and DOJ,
including only voting-age citizens for purposes of legislative districts “would be advantageous to
Republicans and Non-Hispanic Whites,” but would be “functionally unworkable” without a citizenship question in 2020.20 Secretary Ross endorsed the citizenship question over the
objections of career Census Bureau officials, who warned that its inclusion would “harm[] the
quality of the census count.” Email from Dr. Ron Jarmin, Acting Director, Census Bureau, to
Arthur Gary, Gen. Counsel, Justice Management Division, Dep’t of Justice, 1, (Dec. 22, 2017, 3:32 PM).21
The District Court for the Southern District of New York concluded that Secretary Ross’s
explanation had been “materially inaccurate” and that Secretary Ross had made similar
misrepresentations to the court itself and to two committees of the House. New York v. Dept. of
Com., 351 F. Supp. 3d at 547. The Supreme Court subsequently rejected the Commerce
Department’s attempt to add the question, holding that the Court could “[]not ignore the
disconnect between the decision made and the explanation given” for adding the question, and
further noting that the sole rationale provided for adding the question “seems to have been
contrived.” U.S. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575 (2019). This holding
represented the first time in history that the Supreme Court had invalidated an agency’s
Kris Kobach, Kansas Sec’y of State, to Wilbur L. Ross, Jr., Sec’y of Com. (July 14, 2017, 9:12 AM), https://perma.cc/P2NU-7S5P?type=image; Email from Kris Kobach, Sec’y of State of Kansas, to Wendy Teramoto, Chief of Staff, Dep’t of Com. (July 21, 2017, 4:34 PM), https://perma.cc/8WQG-QYEH?type=image.
20 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting at 8 (2015), https://perma.cc/22RT-5EWN.
21 White House staff members had discussed the citizenship question since the 2016 transition, including with Hofeller. Dep. of A. Mark Neuman at 33, 40–41, Kravitz v. Dep’t of Com., No. 18-cv-1041 (D. Md. Oct. 28, 2018). In 2017, Hofeller was also involved in reviewing DOJ’s draft correspondence with the Census Bureau, in what the District Court for the Southern District of New York later described as an effort to “launder” Secretary Ross’s decision through DOJ. New York v. U.S. Dep’t of Com., 351 F. Supp. 3d 502, 570 (S.D.N.Y. 2019).
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explanation for its action as pretextual. Id. at 2574–76; see also id. at 2583 (Thomas, J.,
dissenting).
After the Supreme Court decided the case, the President hinted at the real purpose of the
citizenship question: “You need it for Congress, for districting. You need it for appropriations.”22 The Executive Branch, however, has refused to provide Congress with the
documents that would reveal the true motivation of the Administration’s effort to add the
citizenship question, even after the House held the Attorney General and Secretary of Commerce in contempt and sued to enforce its subpoenas in federal court.23
With this Memorandum, the President has abandoned any pretense. He released the
Memorandum with the statement: “I told the American people that I would not back down in my
effort to determine the citizenship status of the United States population. Today, I am following
through on that commitment by directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.”24 The Memorandum, following
closely on the heels of the failed effort to insert a citizenship question onto the census, appears to
confirm that the Administration has all along intended to use the census to enhance the voting
power of certain favored constituencies at the expense of others. These efforts to manipulate the
census can only undermine the public’s faith in the impartiality, objectivity, and integrity of the
enumeration so essential to a successful census.
22 Remarks by President Trump Before Marine One Departure, White House (July 5, 2019), https://perma.cc/QK6V-833H.
23 See Memorandum from Rep. Carolyn B. Maloney, Acting Chairwoman of the Comm. on Oversight & Reform, to Members of the Committee on Oversight & Reform, Update on Investigation of Census Citizenship Question Since House Held Attorney General Barr and Commerce Secretary Ross in Contempt of Congress 1–3 (Nov. 12, 2019), https://perma.cc/A4WB-HVAP; see also Complaint, Comm. on Oversight & Reform v. Barr, No. 19-cv-3557 (D.D.C. Nov. 26, 2019). 24 Statement from the President Regarding Apportionment, White House (July 21, 2020), https://perma.cc/PZ5Y-23GS.
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B. The Memorandum Will Result in a Flawed and Inaccurate Apportionment The Memorandum not only supports the perception of improper partisan influence, but also will seriously diminish the accuracy of the count and thereby skew the apportionment. For reasons explained above, the Executive Branch cannot attempt to determine the number of “aliens without lawful immigration status” except by using sampling techniques in direct violation of the law. See supra, Section I(D). Aside from those legal obstacles, there are insurmountable practical problems to arriving at any kind of accurate figure of undocumented immigrants. Using those figures for apportionment would inflict lasting harm to public faith in the census and the resulting redistricting. The Executive Branch has long acknowledged the difficulty of accurately capturing the kinds of data contemplated by the Memorandum. The Census Bureau has historically lacked the ability to obtain data regarding undocumented immigrants. See FAIR, 486 F. Supp. at 568 (D.D.C. 1980) (“The [Census] Bureau responds that it is constitutionally required to include all persons, including illegal aliens, in the apportionment base … [and] as a practical matter, it contends accurate methods to count illegal aliens . . . would take months to develop, if it could be done at all.” (emphasis added)). The current Administration has admitted that the Census Bureau’s citizenship data, obtained through the American Communities Survey, is “not reported at the level of the census block, the basic component of legislative districting plans; … ha[s] substantial margins of error; and … [does] not align in time with the census-based population counts used to draw legislative districts.” Dep’t of Com. v. New York, 139 S. Ct. at 2562 (also citing Secretary Ross’s decision not to pursue an ACS-based model to estimate citizenship because the Census Bureau “‘could not confirm’ that such ACS-based data modeling was possible ‘with a sufficient degree of accuracy.’”). In other words, the Census Bureau’s data is
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inadequate to calculate either the number of undocumented immigrants or the total number of immigrants in the country.
Similar issues would arise with the use of records from other federal agencies. See Excluding Illegal Aliens, 85 Fed. Reg. at 44,680 (referencing E.O. 13880). In 2018, Secretary Ross argued that other agencies’ records were “inadequate” for identifying immigrants because “they were missing for more than 10% of the population.” Dep’t of Com. v. New York, 139 S. Ct. at 2563. Even if these records could create a reliable data set to estimate the citizen and immigrant populations, neither the White House nor the Commerce Department has articulated a reliable methodology to determine which percentage of immigrants are “not in a lawful immigration status under the Immigration and Nationality Act.” See Excluding Illegal Aliens, 85 Fed. Reg. at 44,680; 13 U.S.C. § 141. The Census Bureau has neither the resources nor the legal expertise to answer this statutory question. As one court recognized:
the determination of [this] legal fact can be a complicated process, as our numerous cases involving attempts by the [Immigration and Naturalization Service] to deport residents of this country demonstrate. The Immigration and Nationality Act is long and complex, full of provisos and exceptions. It would be absurd to expect the Census Bureau to develop figures . . . of the number of deportable aliens present in this country. . . FAIR, 486 F. Supp. at 573 n.12. The status of the 2020 census exacerbates these data problems. Only several weeks ago, senior Census Bureau officials acknowledged they would be unable to complete a full census by the statutory deadline, with fewer than two-thirds of households having responded to the Census as of August 13, 2020.25 The challenge of enumerating the remaining population of the United
25 See Hansi Lo Wang, Republicans Signal They’re Willing to Cut Census Counting Short, NPR (July 28, 2020), https://perma.cc/VXX4-MF7P (citing the Bureau’s associate director for the 2020 census and associate director for field operations); Response Rates, United States Census 2020, https://2020census.gov/en/response-rates.html.
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States—an estimated 120 million people—on a tight deadline has been made more difficult by the Bureau’s abrupt decision to end its follow-up efforts by September 30, a month earlier than originally planned.26 These factors all but guarantee a substantial undercount that will be “most severe among urban minority populations.” See Assembly of State of Cal. v. U.S. Dep’t of Com., 968 F.2d 916, 917 (9th Cir. 1992).
Even if the Memorandum is never implemented, it still threatens to worsen the undercount. The accuracy of the census depends on the willingness of members of the public to provide their information to the government and to trust that this information will be used for legitimate ends. But noncitizens and members of their households have “historically responded to the census at lower rates than other groups.” Dep’t of Com. v. New York, 139 S. Ct. at 2566. Undocumented immigrants are particularly “fearful” of responding to the census given a concern about the “possibility of [census] information being used against them.” FAIR, 486 F. Supp. at 568; see also Young v. Klutznick, 652 F.2d 617, 619 n.4 (6th Cir. 1981) (citing “attitudes toward government” and “immigration status” as reasons for not responding to the census).
The very existence of the Memorandum, and the hostility it demonstrates toward undocumented residents, risks further suppressing response rates of those residents and members of their households. And many undocumented residents, already fearful of the Administration, may decline to respond to the census if they believe that they will not be counted anyway. Thus, a former Director of the Census Bureau recently testified that there is cause to be “very concerned that the release of this directive will increase the fear of many” that “their information
26 Stephanie Ebbs, 2020 Census to end data collection Sept. 30, raising concerns about undercounting, ABC News (Aug. 4, 2020, 4:24 PM), https://perma.cc/54KX-NUUB.
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will be given to immigration enforcement,” which would likely result in “increased undercounts of these populations.”27
An undercount impairs Congress’s functioning and has a host of negative downstream consequences. Congress depends on accurate census data to legislate effectively. Census data guides many of the most significant federal programs, including Medicaid assistance, Medicare, the Supplemental Nutrition Assistance Program, the National School Lunch Program, and the Children’s Health Insurance Program.28 In addition, “policy makers at all levels of government, as well as private businesses, households, researchers, and nonprofit organizations, rely on an accurate census in myriad ways that range far beyond the single fact of how many people live in each state.” New York v. Dep’t of Com., 351 F. Supp. 3d at 519. An undercount thus distorts the data on which many of the government’s most important decisions are based. Even if the Memorandum is never implemented, it risks worsening an undercount of populations that are already among the least represented in government decision-making.
C. The Memorandum Will Distort the Composition of the House For the reasons discussed above, the Memorandum, if implemented, will violate the law and yield an inaccurate apportionment of Representatives among the States, corrupting the composition of the House for at least the next decade. Because the success of the census depends on the public’s trust and cooperation, the Memorandum is also likely to harm the quality of future enumerations.
27 Press Release, H. Comm. on Oversight & Reform, Oversight Committee Held Emergency Hearing on Trump Administration’s Unconstitutional Politicization of 2020 Census (July 29, 2020).
28 See America Counts Staff, Responding to the Census Will Help Plan Health Care Programs for the Next Decade, U.S. Census Bureau (July 13, 2020), https://perma.cc/8TL26A2P.
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Such an outcome obviously compromises the House’s “[u]nquestionabl[e] … interest in preserving its institutional integrity.” Powell, 395 U.S. at 548. But the Memorandum’s harms to the House also accrue on a broader level. Since its inception, the House has been uniquely connected to its constituents. The House of Representatives—or the “People’s House,” as it often has been called—is the only federal body that has been directly elected since the Constitution’s ratification in 1788.29 Members of the House are the closest federal representatives to their constituents: whereas Senators represent the residents of their whole State, Representatives generally represent smaller communities within each State. Members of the House represent the interests of all residents in their districts—including the interests of nonvoters, like children—and provide important services to their constituents, regardless of citizenship status.30
Basing apportionment on anything other than the actual total population of each State would not affect just the House’s composition, but also undermine its members’ ability to represent fairly and fully all of their constituents. As the DOJ has told the Supreme Court, “the federal government act[s] in the name of (and thereby represent[s]) all people, whether they [are] voters or not, and whether they [are] citizens or not.” Brief for the United States as Amicus
29 Prior to the ratification of the Seventeenth Amendment in 1913, U.S. Senators were elected by state legislatures, rather than directly by the public. See U.S. Const. Art. I, § 3; id. Amend. XVII.
30 Nor is it simple to extricate the interests of citizens from the interests of noncitizens within a community. For example, according to one recent analysis, over 4 million U.S.-citizen children under 18 were living with at least one unauthorized immigrant parent between 2009 and 2013. Randy Capps et al., A Profile of U.S. Children with Unauthorized Immigrant Parents, Migration Policy Inst. 1 (2016), https://perma.cc/9TDT-BYKL. Any benefits or assistance provided to the child thus aids the parent as well as the broader community in which that family lives. Cf. Plyler, 457 U.S. at 230 (requiring states to permit undocumented immigrant children to attend public schools).
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Curiae Supporting Appellees at 19, Evenwel v. Abbott, No. 14-940, 2015 WL 5675829 (W.D. Tex. Sept. 25, 2015).
Therefore, when Congress enacts new laws; provides funding for federal, state, and local programs; or performs oversight, its actions affect all segments of American communities— regardless of immigration status. The foundational logic of democratic representation therefore demands what federal law requires: Congressional representation must reflect the country’s full population, not merely voters or those lawfully present. Alexander Hamilton’s words bear repeating: “There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.” 1 Records of the Federal Convention of 1787, at 473 (M. Farrand ed., 1911) (quoted in Evenwel, 136 S. Ct. at 1127).
CONCLUSION The Constitution requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. Amend. XIV, § 2; Art. I, § 2 (emphasis added). This unambiguous mandate, also reflected in federal statutes, leaves no room for interpretation or deviation by the President. Accordingly, the House joins Plaintiffs in requesting that this Court hold the Memorandum unlawful.
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Of Counsel
JENNIFER SAFSTROM JONATHAN L. BACKER JOSHUA A. GELTZER AMY M. MARSHAK MARY B. MCCORD ANNIE OWENS INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., NW Washington, DC 20001 (202) 661-6728 jg1861@georgetown.edu
DAVID A. O’NEIL LAURA E. O’NEILL TARA GANAPATHY KATHERINE NELSON DEBEVOISE & PLIMPTON, LLP 801 Pennsylvania Ave. NW Washington, DC 20004 Telephone: (202) 383-8000 daoneil@debevoise.com
JAMES B. AMLER DEBEVOISE & PLIMPTON, LLP 919 3rd Avenue New York, NY 10022 Telephone: (212) 909-6000 jbamler@debevoise.com
NEAL KUMAR KATYAL HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 (202) 637-5600 neal.katyal@hoganlovells.com

Respectfully submitted,
/S/ Douglas N. Letter DOUGLAS N. LETTER
Counsel of Record General Counsel TODD B. TATELMAN Principal Deputy General Counsel MEGAN BARBERO JOSEPHINE MORSE ADAM A. GROSS WILLIAM E. HAVEMANN JONATHAN B. SCHWARTZ OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 Douglas.Letter@mail.house.gov
Counsel for Amicus Curiae
August 14, 2020

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 Case 1:20-cv-05770-JMF Document 164 Filed 09/10/20 Page 1 of 86

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

STATE OF NEW YORK, et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

DONALD J. TRUMP, in his official capacity as

:

President of the United States, et al.,

:

:

Defendants.

:

:

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20-CV-5770 (RCW) (PWH) (JMF) OPINION AND ORDER

Before:

RICHARD C. WESLEY, United States Circuit Judge PETER W. HALL, United States Circuit Judge JESSE M. FURMAN, United States District Judge

BACKGROUND ............................................................................................................................ 6 A. The Constitutional and Statutory Scheme........................................................................... 6 B. The Use of Census Data...................................................................................................... 8 C. The Citizenship Question Litigation and Its Aftermath.................................................... 10 D. The 2020 Census............................................................................................................... 12 E. The Presidential Memorandum......................................................................................... 15 F. This Litigation................................................................................................................... 17
SUMMARY JUDGMENT STANDARD .................................................................................... 19 STANDING AND RIPENESS ..................................................................................................... 20
A. The Law of Standing......................................................................................................... 21 B. Facts Relevant to Standing................................................................................................ 25 C. Standing Analysis ............................................................................................................. 36

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1. Injury in Fact................................................................................................................. 40 a. Degradation of Census Data ..................................................................................... 41 b. Diversion of Resources ............................................................................................. 46
2. Traceability ................................................................................................................... 50 3. Redressability................................................................................................................ 53 4. Conclusion .................................................................................................................... 57 D. Prudential Ripeness........................................................................................................... 58 THE MERITS ............................................................................................................................... 62 A. Apportionment Must Be Based on the Results of the Census Alone ............................... 63 B. The Apportionment Base Cannot Exclude Illegal Aliens Who Reside in a State ............ 69 C. Conclusion ........................................................................................................................ 77 REMEDIES................................................................................................................................... 79 A. Injunctive Relief................................................................................................................ 79 B. Declaratory Relief ............................................................................................................. 84 CONCLUSION............................................................................................................................. 85
PER CURIAM. The Constitution provides that “Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole number of persons in each State.” U.S. Const. amend. XIV, § 2. To enable that apportionment, it mandates that an “actual Enumeration” be conducted “every . . . ten Years, in such Manner as [Congress] shall by Law direct,” an effort commonly known as the decennial census. Id. art. I, § 2, cl. 3. Congress has delegated the task of conducting the census to the Secretary of Commerce, who is required to
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report “[t]he tabulation of total population by States” to the President. 13 U.S.C. § 141(a)-(b). The President, in turn, is required 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” using a mathematical formula “known as the method of equal proportions.” 2 U.S.C. § 2a(a). Throughout the Nation’s history, the figures used to determine the apportionment of Congress — in the language of the current statutes, the “total population” and the “whole number of persons” in each State — have included every person residing in the United States at the time of the census, whether citizen or non-citizen and whether living here with legal status or without.
On July 21, 2020, however, the President announced that this long-standing practice will no longer be the case. In a Presidential Memorandum issued on that date (and entered into the Federal Register two days later), the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census” — which, as of today, is still ongoing — “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679, 44,680 (July 23, 2020) (ECF No. 1-1) (the “Presidential Memorandum”).1 To implement this new policy, the President ordered the Secretary of Commerce (the “Secretary”) to provide him two sets of numbers for each State: first, the total population as determined in the 2020 census and, second, the total population as determined in the 2020 census minus the number of “aliens who are not in a lawful immigration status.” Id. The President left it to the Secretary of Commerce to figure out how to calculate the number of “aliens who are not in a lawful immigration status” in each State. But one thing is

1

Unless otherwise noted, all docket references are to 20-CV-5770.

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clear: that number would not come from the census itself, as the 2020 census is not collecting information regarding citizenship status, let alone legal immigration status in this country, and the 2020 census will count illegal aliens according to where they reside.
In these consolidated cases, filed only three days after the Presidential Memorandum, two sets of Plaintiffs — one, a coalition of twenty-two States and the District of Columbia, fifteen cities and counties, and the United States Conference of Mayors (the “Governmental Plaintiffs”) and the other, a coalition of non-governmental organizations (the “NGO Plaintiffs”) — challenge the decision to exclude illegal aliens from the apportionment base for Congress on the ground that it violates the Constitution, statutes governing the census and apportionment, and other laws. On August 7, 2020, they filed a motion for summary judgment or, in the alternative, a preliminary injunction. Plaintiffs allege that the Presidential Memorandum will cause, or is already causing, two forms of irreparable harm. First, noting that the Presidential Memorandum itself identifies a State — believed to be California — that would stand to lose two or three seats in the House of Representatives if illegal aliens are excluded from the apportionment base, they argue that the Memorandum will result in the loss of seats in the House. Second, they argue that the Presidential Memorandum is having an immediate impact on the census count — which is still ongoing — and that that, in turn, is resulting, and will result, in various forms of injury. Defendants — the President, Secretary of Commerce Wilbur L. Ross, Jr., Director of the U.S. Census Bureau Steven Dillingham (the “Director”), the United States Department of Commerce (the “Department”), and the Bureau of the Census (the “Census Bureau”) — oppose Plaintiffs’ motion and filed a cross-motion to dismiss, arguing that the Court lacks jurisdiction to entertain Plaintiffs’ claims and that the exclusion of illegal aliens from the apportionment base is a lawful
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exercise of the President’s discretion with respect to the conduct of the census and apportionment.
For the reasons that follow, Plaintiffs are entitled to summary judgment. The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — “[t]he tabulation of total population by States” under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme. Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.
On those bases, we declare the Presidential Memorandum to be an unlawful exercise of the authority granted to the President by statute and enjoin Defendants — but not the President himself — from including in the Secretary’s report to the President 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. Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.
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The merits of the parties’ dispute are not particularly close or complicated. Before getting to the merits, however, we must confront a question that is closer: whether we have jurisdiction to even consider the merits.
It is axiomatic that federal courts are courts of limited jurisdiction and may consider the merits of a case only if the case is of the sort traditionally amenable to, and resolvable by, the judicial process. That requires a plaintiff seeking relief in federal court to demonstrate that it has “standing” to bring suit and that its claims are ripe for decision. Here, if the sole harm that Plaintiffs alleged were the harm to their apportionment interests, they might not satisfy the requirements of standing and ripeness, as the Secretary has not yet taken any public action in response to the Presidential Memorandum and could conceivably conclude that it is not feasible (or lawful) to exclude illegal aliens from the apportionment base. But Plaintiffs allege — and have proved — that they are suffering, and will suffer, more immediate and certain injuries by virtue of the harm that the Presidential Memorandum is causing to the accuracy of the census count itself. In light of those injuries, we conclude that we have jurisdiction to grant Plaintiffs the relief they are seeking.
BACKGROUND The following background facts, drawn from the admissible materials submitted by the parties and materials of which the Court may take judicial notice, are undisputed except where noted. See, e.g., Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).2 A. The Constitutional and Statutory Scheme Article I of the Constitution requires that an “actual Enumeration” of the population, known as the decennial census, be conducted “every . . . ten Years, in such Manner as [Congress]

2

We discuss facts relevant to the issues of standing and ripeness below.

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shall by Law direct.” U.S. Const. art I, § 2, cl. 3. The primary purpose of this enumeration was to apportion congressional representatives among the States “according to their respective Numbers.” Id. The number of Representatives apportioned to each State determines, in turn, that State’s share of electors in the Electoral College. See id. art. II, § 1, cl. 2; see also 3 U.S.C. § 3. For the first eighty years of the Nation’s history, the States’ “respective Numbers” were calculated according to the formula set forth in the Constitution’s infamous “Three-Fifths Clause,” which provided that the “actual Enumeration” established by the census would be arrived at by “adding to the whole Number of free Persons . . . , and excluding Indians not taxed, three fifths of all other Persons” — “all other Persons” being people then held as slaves. U.S. Const. art I, § 2, cl. 3. In 1868, that provision was modified by the Fourteenth Amendment, which provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” U.S. Const. amend. XIV, § 2 (emphasis added).3
The modern census is governed by the Census Act, which Congress most recently amended in 1976. See Act. of Oct. 17, 1976 (the “Census Act” or the “Act”), Pub. L. No. 94521, 90 Stat. 2459 (codified in scattered sections of 13 U.S.C.). Section 141(a) of the Act broadly delegates to the Secretary the duty to “take a decennial census of population as of the first day of April of such year . . . in such form and content as he may determine.” 13 U.S.C. § 141(a). The Act then mandates that “[t]he tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date” — in this

3

For practical purposes, the “Indians not taxed” proviso was rendered moot by the Indian

Citizenship Act of 1924, Pub. L. No. 68-175, 43 Stat. 253 (codified as amended at 8 U.S.C.

§ 1401(b)), which declared that all Native Americans born in the United States are citizens.

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case, January 1, 2021 — “and reported by the Secretary to the President of the United States.” Id. § 141(b). Within a short time thereafter — in this case, between January 3 and January 10, 2021 — “the President shall transmit to the Congress a statement showing the whole number of persons in each State, excluding Indians not taxed, 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, no State to receive less than one Member.” 2 U.S.C. § 2a(a). The Clerk of the House of Representatives must, in turn, “send to the executive of each State a certificate of the number of Representatives to which such State is entitled” within fifteen days of the President’s statement. Id. § 2a(b). With limited exceptions not relevant here, the Census Act strictly prohibits disclosure — even to other federal agencies — of any data or information concerning individual respondents to the census. See 13 U.S.C. §§ 8-9; New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 523 (S.D.N.Y.), aff’d, 139 S. Ct. 2551 (2019). B. The Use of Census Data
Although the “initial” — and core — “constitutional purpose” of the census was to “provide a basis for apportioning representatives among the states in the Congress” (and, in turn, allocating members of the Electoral College), the census has long “fulfill[ed] many important and valuable functions for the benefit of the country.” Baldrige v. Shapiro, 455 U.S. 345, 353 (1982). As the Supreme Court has observed, it “now serves as a linchpin of the federal statistical system by collecting data on the characteristics of individuals, households, and housing units throughout the country.” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999) (internal quotation marks and citation omitted). Indeed, “[t]oday, policy makers at all levels of government, as well as private businesses, households, researchers, and nonprofit
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organizations, rely on an accurate census in myriad ways that range far beyond the single fact of
how many people live in each state.” New York v. Dep’t of Commerce, 351 F. Supp. 3d at 519
(citation omitted). Among other things, the data are now used not only for apportionment, but
also “for such varied purposes as computing federal grant-in-aid benefits, drafting of legislation,
urban and regional planning, business planning, and academic and social studies.” Baldrige, 455
U.S. at 353 n.9.
In New York v. Department of Commerce, the court described many of the varied uses
beyond congressional apportionment to which the federal, state, and local governments put
census data, which Plaintiffs reiterate in this case. See 351 F. Supp. 3d at 596-99, 610-13. To
provide a few examples here:
• The federal government relies on census data to allocate vast sums of money among and within States. In fiscal year 2016, for example, at least 320 such programs allocated about $900 billion using census-derived data. See id. at 596.
• State governments — including those among the Governmental Plaintiffs here — mandate the use of census data to draw intrastate political districts. See id. at 59495, 612; House of Representatives, 525 U.S. at 333 n.4, 334; see also, e.g., ECF No. 76-11 (“Brower Decl.”), ¶ 16-18 (Minnesota); ECF No. 76-37 (“Rapoza Decl.”), ¶ 5 (Rhode Island).
• State law requires the use of census data for various purposes, ranging from the allocation of governmental resources and imposition of expenses among local governments to the setting of utility fees and official salaries. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 612-13 (citing various state statutes).
• State and local governments — including those among the Governmental Plaintiffs here — rely on census data, including granular local-level “characteristic data,” to perform essential government functions. New York City, for example, makes important decisions about how to allocate public services in reliance on demographic data derived from the census, as when its Department of Education redraws school zone boundary lines, ECF No. 76-21, (“Salvo Decl.”), ¶ 15; when its Department of Health deploys resources based on its best understanding of the age, race, and Hispanic origin characteristics within particular communities, id. ¶ 14; and when its Population Division uses age data to target services for aged individuals, id. ¶ 16.
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Thus, inaccuracies in federal census data would affect state and local governments — and, by extension, their residents — in many ways, only some of which would be measurable. Critically, in many instances, that would be true even if the total population counts were not materially affected — because of the importance of accuracy at the local or subgroup level.4 C. The Citizenship Question Litigation and Its Aftermath
This is not the first time issues relating to the 2020 census have been brought in this District. On March 22, 2018, the Secretary announced that he had decided to include “a question about citizenship on the 2020 decennial census questionnaire,” claiming “that he was acting at the request of the Department of Justice (DOJ), which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2562 (2019). Shortly thereafter, two groups of plaintiffs — including most, if not all, Plaintiffs here — filed suit in this District, alleging that the decision to include the citizenship question violated the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. On January 15, 2019, after an eight-day bench trial, Judge Furman issued detailed findings of fact and conclusions of law, holding that the Secretary’s decision was arbitrary and capricious, contrary to law, and pretextual. New York v. Dep’t of

4

Although less relevant here, accurate census data is also critical to others, including

scholars and private-sector businesses. See, e.g., Br. of Amici Curiae 16 Businesses & Business

Organizations at 3, ECF No. 103-1 (“Businesses Amicus”) (“The Census provides critical data

that informs decision-making in both the private and public sectors. . . . Consequently,

government action that threatens the accuracy of Census data directly harms the businesses

nationwide that rely on that data.”); MARGO J. ANDERSON, THE AMERICAN CENSUS: A SOCIAL

HISTORY 260-61 (2d ed. 2015) (describing how “[s]ocial scientists in university settings, in

businesses, or in stand-alone research organization [have become] the market” for census data in

the modern era). For instance, businesses rely on census data “to make a variety of decisions,

including where to put new brick-and-mortar locations, how to market their products, and how to

predict which products will be successful in a given market. . . . All of these things depend on

the availability of accurate Census data.” Businesses Amicus 2.

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Commerce, 351 F. Supp. 3d at 516; see id. at 635-64. He vacated the Secretary’s decision and enjoined its implementation. See id. at 671-80. The defendants filed a notice of appeal and a petition for certiorari before judgment in the Supreme Court. The Supreme Court granted their petition and then affirmed on the ground that the Secretary’s stated rationale was pretextual. See Dep’t of Commerce v. New York, 139 S. Ct. at 2573-76. Thereafter, on consent, Judge Furman entered a permanent injunction barring the Secretary from asking persons about citizenship status as part of the 2020 decennial census. See Order at 2, ECF No. 653, New York, No. 18-CV-2921 (JMF) (S.D.N.Y. Aug. 7, 2019).
Shortly after the Supreme Court affirmed Judge Furman’s judgment, the President responded with an Executive Order aimed at “compil[ing]” citizenship data “by other means.” Collecting Information About Citizenship Status in Connection With the Decennial Census, Exec. Order No. 13,880 § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019). The Executive Order directed “all executive departments and agencies” to provide to the Department “the maximum assistance permissible, consistent with law, in determining the number of citizens and noncitizens in the country, including by providing any access that the Department may request to administrative records.” Id. § 3 at 33,824. The Executive Order explained that data identifying citizens would, among other things, “help . . . generate a more reliable count of the unauthorized alien population in the country,” which “would,” in turn, “be useful . . . in evaluating many policy proposals.” Id. § 1 at 33,823. Noting that the Supreme Court’s decision in Evenwel v. Abbott, 136 S. Ct. 1120 (2016), had “left open the question whether ‘States may draw districts to equalize voter-eligible population rather than total population,’” the Executive Order also explained that citizenship data could be used by states “to design State and local legislative districts based on the population of voter-eligible citizens.” Id. § 1 at 33,823-24. The Executive
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Order said nothing about using citizenship data for purposes of congressional apportionment. Similarly, in remarks he made when announcing the Executive Order, the President made no mention of using citizenship data in connection with congressional apportionment. See Remarks on Citizenship and the Census, 2019 DAILY COMP. PRES. DOC. 465 (July 11, 2019), https://www. govinfo.gov/content/pkg/DCPD-201900465/pdf/DCPD-201900465.pdf. D. The 2020 Census
On February 8, 2018 the Census Bureau promulgated the “Residence Rule” establishing the residence criteria for the 2020 census. See Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (Feb. 8, 2018) (the “Residence Rule” or the “Rule”). “The residence criteria are used to determine where people are counted during each decennial census.” Id. at 5526. “[G]uided by the constitutional and statutory mandates to count all residents of the several states,” the Rule explains, “[t]he state in which a person resides and the specific location within that state is determined in accordance with the concept of ‘usual residence,’ which is defined by the Census Bureau as the place where a person lives and sleeps most of the time. . . . This concept of ‘usual residence’ is grounded in the law providing for the first census, the Act of March 1, 1790, expressly specifying that persons be enumerated at their ‘usual place of abode.’” Id. Applying these criteria, the Rule explains that all “[c]itizens of foreign countries living in the United States” are to be “[c]ounted at the U.S. residence where they live and sleep most of the time,” with the exception of “[c]itizens of foreign countries living in the United States who are members of the diplomatic community” (who are counted at the embassy, consulate, United Nations’ facility, or other residences where diplomats live) and “[c]itizens of foreign countries visiting the United States, such as on a vacation or business trip” (who are not counted at all). Id. at 5533. Notably, during the notice-and-comment process, the
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Census Bureau considered a comment “express[ing] concern about the impact of including undocumented people in the population counts for redistricting because these people cannot vote.” Id. at 5530. But the Census Bureau decided to “retain the proposed residence situation guidance for foreign citizens in the United States,” reiterating that “[f]oreign citizens are considered to be ‘living’ in the United States if, at the time of the census, they are living and sleeping most of the time at a residence in the United States.” Id. (emphasis added).
The Census Bureau relies on various means to obtain census data, beginning with a questionnaire to which households are asked to self-respond and ending with a set of procedures known as “Non-Response Follow-Up” operations. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 521. The 2020 census count “officially began in the rural Alaskan village of Toksook Bay” on January 21, 2020. U.S. Census Bureau, Important Dates, U.S. CENSUS 2020, https://2020census.gov/en/important-dates.html (last visited September 7, 2020). Census operations were in full swing by mid-March, when the Census Bureau was confronted with the unprecedented challenge of the COVID-19 pandemic. On April 13, 2020, the Secretary and the Director announced that, due to the pandemic, the Census Bureau would temporarily suspend field data collection activities; seek a 120-day extension from Congress of the deadline “to deliver final apportionment counts”; and “extend the window for field data collection and selfresponse to October 31, 2020, which will allow for apportionment counts to be delivered to the President by April 30, 2021.” U.S. Department of Commerce Secretary Wilbur Ross and U.S. Census Bureau Director Steven Dillingham Statement on 2020 Census Operational Adjustments Due to COVID-19, U.S. CENSUS BUREAU (Apr. 13, 2020), https://www.census.gov/newsroom/ press-releases/2020/statement-covid-19-2020.html. In the following months, representatives of
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the Census Bureau reiterated on multiple occasions that additional time was required to complete the apportionment count and deliver it to the President.5
The Census Bureau resumed field operations in May 2020. See U.S. Census Bureau, 2020 Census Operational Adjustments Due to COVID-19 (“Census Operations Adjustments”), U.S. CENSUS 2020, https://2020census.gov/en/news-events/operational-adjustments-covid-19. html (last visited Sept. 9, 2020). Despite the Census Bureau’s earlier statements indicating the need for more time to complete the census, Director Dillingham announced on August 3, 2020, that the Census Bureau would end field operations on September 30, 2020, a month earlier than the previously announced deadline of October 31, 2020. See Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count, U.S. CENSUS BUREAU (Aug. 3, 2020), https://www.census.gov/newsroom/press-releases/2020/ delivering-complete-accurate-count.html; see also ECF No. 62 (“NGO Pls. Compl.”), ¶¶ 10 & n.3, 114, 174 n.69. As of today, therefore, the census is still ongoing — with enumerators conducting in-person Non-Response Follow-Up work to ensure that any household that did not self-respond to the census is nonetheless counted as part of the “actual Enumeration.” See Census Operations Adjustments; see also ECF No. 34 (“Gov’t Pls.’ Compl.”), ¶ 130 & n.20. In fact, there is some doubt about the date on which these efforts will end and the counting will

5

See, e.g., U.S. CENSUS BUREAU, OPERATIONAL PRESS BRIEFING – 2020 CENSUS UPDATE

21 (July 8, 2020), https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news-

briefing-program-transcript-july8.pdf (statement of Albert Fontenot, Assoc. Dir. for Decennial

Census Programs) (explaining that the Bureau was “past the window of being able” to produce

the apportionment count by December 31, 2020); see also, e.g., Nat’l Conf. of Am. Indians, 2020

Census Webinar: American Indian/Alaska Native, YOUTUBE (May 26, 2020), https://www.

youtube.com/watch?v=F6IyJMtDDgY&feature=youtu.be&t=4689 (statement of Tim Olson,

Assoc. Dir. For Field Operations) (explaining that “[w]e have passed the point where [the

Bureau] could even meet the current legislative requirement of December 31. We can’t do that

anymore. We’ve passed that for quite a while now.”).

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stop. On September 5, 2020, the Honorable Lucy H. Koh, United States District Judge for the Northern District of California, entered a temporary restraining order enjoining the Census Bureau from “implementing the August 3, 2020 [plan] or allowing to be implemented any actions as a result of the shortened timelines in the August 3, 2020 [plan].” Nat’l Urban League v. Ross, No. 20-CV-5799 (LHK), 2020 WL 5291452, at *4 (N.D. Cal. Sept. 5, 2020). A preliminary injunction hearing is scheduled in that case for September 17, 2020. See id. E. The Presidential Memorandum
In the meantime — that is, with the census count still being conducted — on July 21, 2020, the President issued the 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.” Id. at 44,680. “Excluding these illegal aliens from the apportionment base,” the President posited, “is more consonant with the principles of representative democracy underpinning our system of Government. Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.” Id. Additionally, the President asserted that “[i]ncreasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law” and that “States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the
15

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immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.” Id. Referring to one State with “more than 2.2 million illegal aliens” — apparently California, see ECF No. 75 (“Pls.’ Rule 56.1 Statement”), ¶ 4 — the Presidential Memorandum noted that “[i]ncluding these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.” Presidential Memorandum, 85 Fed. Reg. at 44,680.
To implement this new “policy of the United States,” the President directed the Secretary to provide him with two sets of data. First, the Presidential Memorandum mandates that, “[i]n preparing his report to the President under section 141(b) of title 13, United States Code, the Secretary shall take all appropriate action, consistent with the Constitution and other applicable law, to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.” Id. Second, “[t]he Secretary shall also include in that report information tabulated according to the methodology set forth in Final 2020 Census Residence Criteria and Residence Situations, 83 FR 5525 (Feb. 8, 2018).” Id. (emphasis added). In other words, to the extent “feasible” or “practicable,” the Secretary is now required to include two sets of numbers for each State in his report to the President under Section 141(b) of the Census Act: first, the total population as determined in accordance with the Residence Rule, which includes citizens of foreign countries “living in the United States,” without regard for the legal status of such persons in this country, Residence Rule, 83 Fed. Reg. at 5533; and second, the total population minus the number of “aliens who are not in a lawful immigration status.” Presidential Memorandum, 85 Fed. Reg. at 44,680.
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F. This Litigation On July 24, 2020 — only three days after the Presidential Memorandum — both the
Governmental Plaintiffs and the NGO Plaintiffs filed their initial complaints. See ECF No. 1; 20-CV-5781, ECF No. 1.6 In their now-amended Complaints, Plaintiffs contend that the Presidential Memorandum violates the Constitution’s Enumeration Clause, as modified by the Fourteenth Amendment; is motivated by discriminatory animus toward Hispanics and immigrant communities of color, in violation of the equal protection component of the Fifth Amendment’s Due Process Clause; coerces state and local governments and denigrates the equal sovereignty of the States in violation of the Tenth Amendment; violates the constitutional separation of powers by usurping the authority Congress delegated to the Secretary; constitutes an ultra vires violation of 2 U.S.C. § 2a and 13 U.S.C. § 141; violates the APA; and violates the Census Act’s prohibition on the use of statistical sampling for purposes of congressional apportionment, see 13 U.S.C. §§ 141, 195. They seek a declaration that the Presidential Memorandum is unlawful, an injunction prohibiting Defendants from taking any action to implement or further the Memorandum, and writs of mandamus compelling the Secretary and the President to transmit figures that do not exclude illegal aliens based on immigration status.
The cases were initially assigned to Judge Furman alone, who consolidated them pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure. ECF No. 43, at 1. On August 5, 2020, Judge Furman held an initial pretrial conference by telephone. During the conference,

6

At least six other cases in four other Districts have been filed challenging the Presidential

Memorandum. See Compl., Common Cause v. Trump, No. 20-CV-2023 (D.D.C. July 23, 2020);

Compl., Haitian-Ams. United, Inc. v. Trump, No. 20-CV-11421 (D. Mass. July 27, 2020);

Compl., City of San Jose v. Trump, No. 20-CV-5167 (N.D. Cal. July 27, 2020); Compl.,

California v. Trump, No. 20-CV-5169 (N.D. Cal. July 28, 2020); Compl., Useche v. Trump, No.

20-CV-2225 (D. Md. July 31, 2020); Second Am. Compl., La Union Del Pueblo Entero v.

Trump, No. 19-CV-2710 (D. Md. Aug. 13, 2020).

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Plaintiffs advised that they intended to immediately file a motion for summary judgment (or, in the alternative, a preliminary injunction), and Defendants advised that they intended to file a motion to dismiss. ECF No. 79 (“Aug. 5, 2020 Tr.”), at 11, 27, 36-38; see also ECF No. 37 (“Joint Pre-Conference Ltr.”), at 6. Noting that Plaintiffs disclaimed the need for any discovery in connection with their motion for summary judgment or a preliminary injunction, Judge Furman set an expedited schedule and cautioned that, “[i]f defendants believe[d]” upon seeing Plaintiffs’ motion papers “that there is any need for discovery,” they were required “to confer” with Plaintiffs “immediately and then submit a joint letter.” Aug. 5, 2020 Tr. at 46.
At Plaintiffs’ request, and without objection from Defendants, Judge Furman filed a formal request on August 7, 2020, for the appointment of a three-judge district court pursuant to 28 U.S.C. § 2284(b). See ECF No. 68; see also ECF Nos. 58, 65. On August 10, 2020, the Honorable Robert A. Katzmann, then the Chief Judge of the Second Circuit, designated Judges Wesley and Hall to serve as the other members of a three-judge panel to hear these cases. See ECF No. 82. Thereafter, the panel adopted the scheduling order previously entered by Judge Furman alone. See ECF No. 86.
Pursuant to that scheduling order, Plaintiffs filed their motion on August 7, 2020. See ECF No. 74. Plaintiffs seek summary judgment (or, in the alternative, a preliminary injunction) on only some of their claims, namely that the Presidential Memorandum violates the Enumeration Clause and Fourteenth Amendment and constitutes an ultra vires violation of the statutes governing the census and apportionment. See ECF No. 77 (“Pls.’ Mem.”), at 10-40. Plaintiffs’ motion is supported by declarations of both fact and expert witnesses. See ECF No. 76 (“Colangelo Decl.”); ECF No. 149 (“Goldstein Decl.”).
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In response, Defendants did not ask to depose Plaintiffs’ declarants or request discovery of any kind; nor did they seek a hearing. Instead, on August 19, 2020, they filed their opposition to Plaintiffs’ motion and a cross-motion to dismiss. See ECF No. 117. To the extent relevant here, they argue that the Court lacks jurisdiction to hear Plaintiffs’ claims because they are unripe and Plaintiffs lack standing; that the Enumeration Clause and ultra vires claims fail because the decision to exclude illegal aliens from the apportionment base is a lawful exercise of the President’s discretion with respect to the census and apportionment; that Plaintiffs are not entitled to injunctive relief because they cannot show irreparable harm; and that the President is not a proper defendant. See ECF No. 118 (“Defs.’ Mem.”). On August 28, 2020, the motions became fully briefed, see ECF No. 154 (“Defs.’ Reply”), and on September 3, 2020, the Court held oral argument by telephone.
SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the admissible evidence and pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The initial burden of establishing that no genuine factual dispute exists rests upon the party seeking summary judgment. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). If the moving party shows a prima facie entitlement to summary judgment,
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“the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006).
In ruling on a motion for summary judgment, a court must view all evidence “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Mil. & Naval Affs., 373 F.3d 83, 89 (2d Cir. 2004), and must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). To defeat a motion for summary judgment, the non-moving party must advance more than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party “cannot defeat the motion by relying on the allegations in [its] pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citation omitted).
STANDING AND RIPENESS As noted, Plaintiffs move for summary judgment on two grounds: that Defendants’ decision to exclude illegal aliens from the apportionment base violates the Enumeration Clause and the Fourteenth Amendment of the Constitution; and that it exceeds the authority granted by Congress in the statutes that govern the census and congressional apportionment. See Pls.’ Mem. 10-40. Before reaching the merits of either argument, however, we must address Defendants’ contention that we lack jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S.
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83, 88-89 (1998) (noting that subject-matter jurisdiction cannot be assumed and is a “threshold question that must be resolved . . . before proceeding to the merits”).
Defendants argue and move to dismiss on the ground that we lack jurisdiction for two reasons: because Plaintiffs fail to establish that they have standing to sue and because their claims are not yet ripe. Where, as here, the question is whether a plaintiff’s injury is sufficiently “real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 113839 (9th Cir. 2000) (citation omitted); accord Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014); Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (quoting Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003). Thus, courts often address them together under the single umbrella term of “standing,” see, e.g., Susan B. Anthony List, 573 U.S. at 157 n.5; Nat’l Org. for Marriage, 714 F.3d at 689 n.6, and we will do the same here. But there is a second, arguably distinct form of ripeness doctrine that Defendants invoke: prudential ripeness, which concerns whether a case that might qualify as a bona fide case or controversy is nevertheless better decided later. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010) (“Ripeness reflects constitutional considerations that implicate Article III limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction.” (internal quotation marks and citation omitted)). We will begin with the issue of standing — the toughest issue in this case — and then turn briefly to prudential ripeness. A. The Law of Standing
Article III of the Constitution limits the “judicial Power” of the United States to “Cases” and “Controversies.” See U.S. Const. art. III, § 2. This means that all suits filed in federal court must be “cases and controversies of the sort traditionally amenable to, and resolved by, the
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judicial process.” Steel Co., 523 U.S. at 102. One way courts implement that requirement is by ensuring that “at least one plaintiff” in any federal case has “standing.” Dep’t of Commerce v. New York, 139 S. Ct. at 2565; see also Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (noting that, in a case with multiple plaintiffs, “the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement”). Standing, in turn, is measured by a “familiar three-part test,” which requires a plaintiff to show (1) “an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Gill v. Whitford, 138 S. Ct. 1916 (2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). The plaintiff must make this showing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To prevail on a motion for summary judgment, therefore, “mere allegations of injury are insufficient. Rather, a plaintiff must establish that there exists no genuine issue of material fact as to justiciability . . . .” House of Representatives, 525 U.S. at 329; see Lujan, 504 U.S. at 561 (stating that, on summary judgment, a plaintiff “can no longer rest on such ‘mere allegations,’” as at the pleading stage, “but must ‘set forth’ by affidavit or other evidence ‘specific facts’” that demonstrate standing. (quoting Fed. R. Civ. P. 56(e)).
Injury in fact is “the first and foremost of standing’s three elements.” Spokeo, 136 S. Ct. at 1547 (internal quotation marks, alterations, and citation omitted). “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548 (internal quotation marks and citation omitted). Significantly, an injury “need not be actualized”
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to satisfy Article III. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Instead, a “future injury” can suffice, so long as it is “certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List, 573 U.S. at 157 (internal quotation marks and citation omitted); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013) (noting that plaintiffs need not “demonstrate that it is literally certain that the harms they identify will come about”); House of Representatives, 525 U.S. at 332-33 (finding standing “on the basis of the expected effects . . . on intrastate redistricting” — namely, that certain jurisdictions were “substantially likely . . . [to] suffer vote dilution”). Ultimately, the injury-in-fact requirement is meant to “ensure that the plaintiff has a personal stake in the outcome of the controversy.” Susan B. Anthony List, 573 U.S. at 158 (internal quotation marks and citation omitted).
The second element requires proof that the plaintiff’s injury is “fairly traceable” to the defendant’s challenged conduct. Put differently, “there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (internal quotation marks, alterations, and citation omitted). Importantly, “[p]roximate causation is not a requirement of Article III standing, which requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014) (emphases added); see also Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (“[T]he ‘fairly traceable’ standard is lower than that of proximate cause.”). Accordingly, “Article III ‘requires no more than de facto causality.’” Dep’t of Commerce v. New York, 139 S. Ct. at 2566 (quoting Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.)). Relatedly, for an injury to be “fairly traceable” to a defendant’s conduct, that conduct need not be “the very last step in the chain of
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causation.” Bennett v. Spear, 520 U.S. 154, 168–69 (1997). Indeed, as the Supreme Court explained in finding that the plaintiffs challenging the decision to add a citizenship question to the census had standing, when a “theory of standing” relies “on the predictable effect of Government action on the decisions of third parties,” traceability is satisfied. Dep’t of Commerce v. New York, 139 S. Ct. at 2566. This may be so “even when the decisions are illogical or unnecessary.” New York v. U.S. Dep’t of Homeland Sec., 969 F.3d 42, 59 (2d Cir. 2020).
Third and finally, a plaintiff’s injury must be “redressable” by the relief sought — that is, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks and citation omitted). “[T]he very essence of the redressability requirement” is that a request for “[r]elief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court.” Steel Co., 523 U.S. at 107. But if there is “a likelihood that the requested relief will redress the [plaintiff’s] injury,” the requirement is satisfied. Id. at 103; see also Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185-86 (2000) (“[F]or a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress.”). Notably, the redressability requirement does not require a plaintiff to show that the relief sought will remedy all injuries alleged. Instead, “‘the relevant inquiry is whether . . . the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision.’ In other words, a plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (citations omitted) (quoting
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Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)). Nor need the plaintiff prove that judicial relief will remedy an injury entirely. It is enough that the “risk [of the alleged harm] would be reduced to some extent if [the plaintiffs] received the relief they seek.” Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007); cf. Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992) (“Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the [injury], a court does have power to effectuate a partial remedy.”). B. Facts Relevant to Standing
Plaintiffs press two categories of harm: (1) “harms stemming from the exclusion of undocumented immigrants in the apportionment count”; and (2) “harms caused by the Memorandum’s deterrent effect on census participation.” Pls.’ Reply 29. With respect to the first category, the Presidential Memorandum’s express goal is to stop “[a]ffording congressional representation, and therefore formal political influence, to States on account of” their illegal alien population. Presidential Memorandum, 85 Fed. Reg. at 44,680. In particular, the Memorandum itself anticipates that excluding illegal aliens from the apportionment count could reduce the number of representatives in States with large immigrant populations, noting explicitly that in “one State . . . home to more than 2.2 million illegal aliens,” id. — apparently, California, see Pls.’ Rule 56.1 Statement ¶¶ 3-4 — the inclusion of illegal aliens could “result in the allocation of two or three more congressional seats than would otherwise be allocated,” Presidential Memorandum, 85 Fed. Reg. at 44,680. In addition to the Memorandum itself, Plaintiffs proffer an expert analysis that concludes that the wholesale exclusion of illegal aliens from the apportionment base “is likely to have substantial effects on the population counts of each state” and, more specifically, “will almost certainly lead Texas to lose a seat in Congress”; would “likely . . . lead California and New Jersey to lose a congressional seat”; and “could lead other
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states, such as Arizona, Florida, New York, or Illinois, to lose seats.” ECF No. 76-58 (“Warshaw Decl.”), ¶ 11.
With respect to the second category of harm, Plaintiffs submit a number of declarations — uncontested by Defendants — demonstrating the Presidential Memorandum’s deterrent effect on participation in the decennial census, particularly among noncitizens, immigrants, and their family members, and, in turn, the adverse consequences that are likely to flow from that deterrent effect.7 The Presidential Memorandum deters census participation for at least two distinct reasons. First, the Presidential Memorandum engenders fear and distrust among illegal aliens

7

Although Defendants do not dispute the facts in Plaintiffs’ declarations, they argue that

the declarations are “impermissibly conjectural, conclusory, and hearsay.” Defs.’ Mem.

12. Defendants are correct to point out that we “may consider affidavits and other materials

beyond the pleadings to resolve the jurisdictional issue,” but “may not rely on conclusory or

hearsay statements contained in the affidavits.” New York v. U.S. Dep’t of Commerce, 315 F.

Supp. 3d 766, 780 (S.D.N.Y. 2018) (internal quotation marks omitted). But Plaintiffs’

declarations are not conclusory insofar as they describe with concrete detail the specific

experience of various non-governmental and governmental entities. By way of example, several

NGO Plaintiffs give specific and concrete evidence of the ways in which their operations have

shifted to respond to the Memorandum. See, e.g., ECF No. 76-18 (“Espinosa Decl.”), ¶ 14; ECF

No. 76-14 (“Choi Decl.”), ¶¶ 17, 20-21; ECF No. 76-26 (“Khalaf Decl.”), ¶ 15; ECF No. 76-36

(“Oshiro Decl.”), ¶ 12; ECF No. 76-47 (“Torres Decl.”), ¶¶ 22-23.

Furthermore, although the declarations do contain some inadmissible hearsay (e.g., where

they report information secondhand), Defendants are incorrect in suggesting that, without it, the

declarations are insufficient to support a showing that “the Presidential Memorandum would

have an appreciable effect on the participation of illegal aliens” in the census. Defs.’ Mem. 14-

15. Many of the statements in Plaintiffs’ declarations recount comments made by immigrants in

response to the Presidential Memorandum, see, e.g., ECF No. 76-17 (“Cullinane Decl.”), ¶ 8;

ECF No. 149-3 (“Espinosa Supp. Decl.”), ¶ 5, which are admissible to prove state of mind, see

Fed. R. Evid. 803(3). Additionally, references in the declarations to third-party statements are

admissible to demonstrate the effect that these statements had on others — for example, that

NGO Plaintiffs diverted resources in response to deterred census participation. See, e.g., United

States v. Reed, 639 F.2d 896, 907 (2d Cir. 1981). Finally, the declarations also contain

information about the general atmosphere of fear, confusion, and apathy towards the census in

various communities, information that is based on declarants’ personal experiences working with

and in those communities; this information is not a “statement” and, thus, not hearsay. See Fed.

R. Evid. 801(a). In the discussion that follows, we rely on the declarations only to the extent

they are admissible.

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and their families (and, more broadly, all noncitizens and their families), and deters these groups from participating in the census out of fear of providing the federal government with information by which their citizenship status may be ascertained (and any resulting adverse consequences). Second, because the Presidential Memorandum announces that it is United States policy “to exclude from the apportionment base aliens who are not in a lawful immigration status,” Presidential Memorandum, 85 Fed. Reg. at 44,680 — the “primary purpose of the census,” New York v. Dep’t of Commerce, 351 F. Supp. 3d at 561 — illegal aliens may decide not to participate in the census on the theory that they do not count for any purpose or on the theory that there is little upside to being counted.
Several agency and non-profit organization leaders in charge of census outreach programs attest that many illegal aliens have expressed concern over, or outright refused to participate in, the census as a result of the Presidential Memorandum, both because they are apprehensive that the data will be used in immigration enforcement and because they perceive their participation as ultimately futile in light of the President’s explicit exclusion of illegal aliens for the purposes of apportionment. See, e.g., ECF No. 76-4 (“Baldwin Decl.”), ¶ 8; ECF No. 765 (“Banerji Decl.”), ¶ 5; Brower Decl. ¶ 11; Cullinane Decl. ¶ 8. Other immigrant respondents have expressed concern that “the Trump Administration would punish undocumented persons who filled out the Census by tracking and deporting them.” See, e.g., ECF No. 76-30 (“Matos Decl.”), ¶¶ 9-13 (describing Delaware-based census advocacy program’s increased need to quell community fears that, in light of the Presidential Memorandum, responding to the census will result in deportation or bar Latinos from obtaining citizenship).
Notably, Plaintiffs’ evidence indicates that the effects of the Presidential Memorandum are likely to be felt beyond the illegal alien population. “Excluding undocumented immigrants
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from the apportionment base will deter Census participation among the broader immigrant community, including family and household members of undocumented immigrants who are actually citizens or non-citizens with legal status.” Espinosa Decl. ¶ 11; see also Khalaf Decl. ¶ 12 (“[S]ignificant fear and increased distrust about the Census . . . [is] not limited to undocumented immigrants or other non-citizens, but also to family, household members, friends, and community members of non-citizens, people for whom the new policy articulated in the Memorandum has generated fear about responding at all . . . .”). Of particular concern is the response in “mixed status households” — that is, households consisting of illegal aliens and residents with lawful status — where concerns about the security of identifying information being shared with the federal government are prevalent. See, e.g., Espinosa Decl. ¶ 12 (describing a fear among individuals from mixed status households that “the Presidential Memorandum’s exclusion of people ‘not in lawful immigration status’ from the census base count indicates that the Administration will use information from the census to attempt to identify undocumented immigrants for deportation or other adverse consequences”). “Even U.S.-born citizen Puerto Rican residents are confused” by the Presidential Memorandum. ECF No. 76-16 (“Colón Decl.”), ¶ 11.
In addition to this extensive — and undisputed — record of fact witness testimony, Plaintiffs provide expert analyses describing the fear and confusion generated by the Presidential Memorandum among hard-to-count communities and the resultant chilling effect on census participation. See ECF No. 76-56 (“Barreto Decl.”), ¶ 14 (surveying research on the impact of media messages on immigrant communities’ trust in government and the impact of those communities’ trust on census response rates and concluding that “the July 21 [Presidential Memorandum] will reduce participation in the 2020 census, and ultimately will reduce the
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accuracy of the 2020 census”); ECF No. 76-57 (“Thompson Decl.”), ¶ 3 (concluding that the Presidential Memorandum “will significantly increase the risk of larger total and differential undercounts, relative to previous censuses, for the hard-to-count populations, including immigrant communities”).8
In short, the record supports a conclusion that the Presidential Memorandum has created, and is likely to create, widespread confusion among illegal aliens and others as to whether they should participate in the census, a confusion which has obvious deleterious effects on their participation rate. See ECF No. 76-1 (“Alvarez Decl.”), ¶ 10 (reporting “an increase in confusion amongst immigrant communities after” Memorandum was issued); see also Baldwin Decl. ¶ 8; ECF No. 76-9 (“Bird Decl.”), ¶ 9. As John Thompson, the former Director of the Census Bureau, predicts, “the effects of the Memorandum on the current macro environment are likely to be as great if not greater than the addition of a citizenship question.” Thompson Decl. ¶ 23 (emphasis added); see also Barreto Decl. ¶ 29. And the Census Bureau’s own advertising

8

Defendants fault Dr. Barreto for failing to consider a 2019 study conducted by the Census

Bureau, ELIZABETH A. POEHLER ET AL., U.S. CENSUS BUREAU, 2019 CENSUS TEST REPORT: A

NEW DESIGN FOR THE 21ST CENTURY (Jan. 3, 2020), https://www2.census.gov/programs-

surveys/decennial/2020/program-management/census-tests/2019/2019-census-test-report.pdf

(“2019 Census Test Report”), which found “no statistically significant difference in overall self-

response rates” resulting from the inclusion of a citizenship question on the census questionnaire.

Id. at ix; see Defs.’ Mem. 13. But that study, which is not directly relevant to the issues before

us, is less useful for Defendants than their arguments suggest, as there are findings that both

sides can and do point to in support of their positions. In fact, the same study did find

statistically significant drops in response rates “in some areas and for some subgroups,”

including “[t]racts with greater than 4.9 percent noncitizens,” “[t]racts with greater than 49.1

percent Hispanic residents,” “[t]racts with between 5.0-20.0 percent Asian residents,” and

“[h]ousing units within the Los Angeles Regional Census Center and New York Regional

Census Center boundaries.” Id. at ix-x. Furthermore, “the results of this [study] [we]re limited

to the self-response timeframe prior to the start of” Non-Response Follow-Up operations, id. at

12, and there is reason to believe that each of Non-Response Follow-Up’s steps would replicate

or exacerbate the effects of the net differential decline in self-response rates among noncitizen

households, see New York v. Dep’t of Commerce, 351 F. Supp. 3d at 583.

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initiatives will struggle to ward off these effects even with “messag[ing] that respondent information is confidential” and that “[t]he Census Bureau will not share it with any outside entities, including law and immigration enforcement.” Thompson Decl. ¶ 21.
These deterrent effects have far-reaching ramifications, including increasing costs for census outreach programs run by NGOs and governments. Indeed, the NGO Plaintiffs have already diverted resources from their other important programs to shore up their census engagement efforts. For example, Plaintiff FIEL “has recently had to refocus its programming and commit additional resources to its Census work,” and “expects that it will need to interact with its constituents multiple times to answer questions and try to convince them to participate in the 2020 Census.” Espinosa Decl. ¶ 14; see also ECF No. 76-44, (“Sivongxay Decl.”), ¶ 18 (“[A]dditional one-on-one conversations and relational outreach are necessary to maintain trust among communities and census partners to ensure confidence that census information will remain confidential and that there are still important benefits to responding to the census, such as ensuring receipt of critical federal funding.”). Because the Presidential Memorandum “dilutes the efficacy” of the efforts by Plaintiff New York Immigration Coalition (“NYIC”) to ensure immigrants are counted in the census, NYIC will have “to divert resources from other programmatic areas to conduct additional education and outreach to get the same number of people to respond to the Census questionnaire.” Choi Decl. ¶ 17. Specifically, NYIC has had to “make new materials”; “conduct new outreach”; “engage[] in member updates, press releases, [and] press briefings”; “develop[] messaging and social media campaigns”; and “respond to inquiries from local media . . . to assure people” that every person should respond to the Census. Id. In other words, “NYIC expects that it will need to interact with its constituents more times than previously planned to try to convince them to participate in the 2020 census” as a result of
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the Presidential Memorandum. Id. ¶ 20. It estimates that the organization “will have to increase staff time and spending devoted to its Census education and outreach efforts by approximately 20% percent over previously anticipated levels.” Id. ¶ 21.
Plaintiffs American-Arab Anti-Discrimination Committee (“ADC”) and ADC Research Institute (“ADRCI”) have also had to divert resources away from other programmatic areas, including critical programs responding to COVID-19 issues. Khalaf Decl. ¶ 15. In response to the Presidential Memorandum’s messaging, ADC and ADRCI will “increase staff time and spending devoted [to] its Census education and outreach efforts by approximately 25[] percent over current levels,” id. ¶ 14, while the national president of both organizations reports that he “personally spent at least 35 hours on Census-related work since the release of the [Presidential] Memorandum” that he would have otherwise spent on other tasks related to the operation and mission of both organizations, id. ¶ 15. Plaintiff Ahri similarly will increase staff time and spending devoted to census education and outreach by approximately fifteen percent in response to the chilling effects of the Presidential Memorandum. ECF No. 76-43 (“Seon Decl.”), ¶ 17. According to Theo Oshiro, Deputy Director at the non-profit Make the Road New York (“MRNY), the Presidential Memorandum also “dilutes the efficacy of [MRNY’s] existing materials and programming, which requires MRNY to divert resources from other programmatic areas to strategize around how to make [its] education and outreach effective and to get the same number of people to respond to the Census questionnaire” as they would have absent the Memorandum. Oshiro Decl. ¶ 12. Finally, Plaintiff CASA also has had to “devote additional resources to addressing the confusion and fear that have resulted” from the Presidential Memorandum, including having “to reorganize its communication team, reassign staff to Census outreach and education, and revise and redistribute messaging materials.” Torres Decl. ¶¶ 22-23.
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The Governmental Plaintiffs have also had to divert resources from other programs to mitigate the confusion caused by the Presidential Memorandum. Plaintiff Illinois, for example, has already had to spend funds on digital ads specifically designed to address misinformation about the census, has created printed materials to be distributed, and has produced social media videos and other digital communications to reassure the immigrant community about the importance of the census. Alvarez Decl. ¶ 12. Plaintiff Vermont, through its 2020 Complete Count Committee, has — in direct response to the Presidential Memorandum — provided “minigrants” to increase outreach to hard-to-count communities, conducted additional open educational meetings, provided additional multilingual public service announcements, and otherwise promoted census participation. ECF No. 76-10 (“Broughton Decl.”), ¶ 7. Plaintiff Monterey County will “have to dedicate significant resources to ensure participation without fear” so that the County receives its proper census-based funding. ECF No. 76-28 (“Lopez Decl.”), ¶ 18; see also ECF No. 76-12 (“Bysiewicz Decl.”), ¶ 11 (describing efforts by Plaintiff Connecticut to encourage full census participation after the Presidential Memorandum caused “confusion”).
The Memorandum’s chilling effect on census participation will likely also degrade the census data, harming state and local governments that rely on the data to carry out their public functions. As Dr. Joseph Salvo, Chief Demographer of New York City, explained, “the July 21, 2020 Presidential memorandum is likely to make the Census Bureau resort to less-reliable methods, including statistical imputation, more frequently in immigrant communities than it otherwise would.” Salvo Decl. ¶ 12. Specifically, when individuals fail to participate in the census themselves, the Census Bureau will sometimes rely on “proxy respondents,” like neighbors, landlords, and postal workers. See GLENN WOLFGANG ET AL., U.S. CENSUS BUREAU,
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ANALYSIS OF PROXY DATA IN THE ACCURACY AND COVERAGE EVALUATION 1 (2003), https:// www.census.gov/pred/www/rpts/O.5.PDF. Reliance on proxy responses “degrade[s] the quality of the data” and its usability, since proxy respondents often leave some questions unanswered and report information less accurately than household respondents. Brower Decl. ¶¶ 12-13 (discussing, for example, the phenomenon of “age heaping” where data on the age of individuals tends to be reported in numbers ending in 5 or 0 when a proxy is the respondent because the proxy merely estimates the age of the individual). Further, if census data are not available through proxy responses, demographers are forced to resort to data imputation, which itself is reliable only when calculated using a sufficiently high self-response rate. See ECF No. 76-21 (“Hardcastle Decl.”), ¶ 5. Lower response rates also increase the margins of error in statistical calculations, degrading the utility of census response data and restricting Plaintiffs’ ability to rely on the data for, inter alia, governmental planning purposes. See ECF No. 76-25 (“Kaneff Decl.”), ¶¶ 3-5.
Indeed, degraded census data jeopardizes various sovereign interests in allocating funds and administering public works through programs that rely on quality census data. Connecticut, for example, relies on accurate characteristic data, meaning data on subgroups within the population, for a wide variety of purposes, including deciding where to locate COVID-19 testing sites, the evaluation of requests for school construction funds, the promulgation of affirmative action plans for state agencies using data-driven goals and benchmarks, effective forecasting for public transit planning, and others. See ECF No. 76-31 (“McCaw Decl.”) ¶¶ 4-7. Similarly, Dr. Salvo explains that “[t]he decennial census is the statistical backbone of our country” and that, like Connecticut, New York City relies on accurate characteristic data about subgroups to make
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decisions about public health programs and education investments, as well as emergency preparedness planning and provision of targeted services for the elderly. Salvo Decl. ¶¶ 13-17.
Other examples abound in the record. In Monterey County, California, for example, the Department of Social Services is responsible for administering cash and non-cash programs that, among other things, provide supplemental food assistance, California’s Medicaid program, foster care, adoption and aging assistance, and temporary assistance to needy families. ECF No. 76-32 (“Medina Decl.”), ¶ 2. That department relies on accurate census data in making its funding allocation decisions. Id. ¶ 4. Any undercounting of undocumented immigrants caused by the Presidential Memorandum will not only “impact the formulas used for funding allocations” for these basic living assistance programs, but will also result in the loss of federal funding, “which, in turn, will add extra financial burden on local governments, resulting in even fewer available resources to assist families with food, housing, health, and other support and safety net services.” Id.; see also, e.g., ECF No. 76-33 (“Mohammed Decl.”), ¶¶ 5-6 (describing how the census directly impacts funding for the City of Pittsburgh and “provides the most reliable and complete data for research, decision making and planning in City government”); ECF No. 76-39 (“Rodriguez Decl.”), ¶ 3 (describing how Illinois’s Workforce Innovation and Opportunity Act Program, which provides services to help certain populations overcome barriers to employment, depends on accurate census data to identify the targeted population levels); ECF No. 76-46 (“Sternesky Decl.”), ¶ 5 (“Census data deeply influences the way that [the New Jersey Housing and Mortgage Finance Agency] designs and plans for the allocation of housing funds across the state. For example, the Agency uses income, poverty, employment, housing density, and housing vacancy data from the Census to direct its annual $20 million to $25 million allocation of federal 9% Low-Income Housing Tax Credits (LIHTC). These credits are then used to
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leverage roughly a ten-fold influx of private investment into equity for development costs to both high-opportunity and high-need areas of New Jersey.”); ECF No. 76-50 (“Wortman Decl.”), ¶¶ 3, 6 (describing how Illinois determines funding for each county based on an “index of need” and how “[u]nderrepresentation of areas with a higher percentage of immigrants will result in disproportionate levels of funding being allocated to counties with less demographic diversity”).
Plaintiff Washington State will also be negatively impacted if it is forced to use inaccurate census data. Washington allocates $200 million “of state shared revenues . . . to counties and cities on a per capita basis annually” and uses decennial census data for its demographic estimates and annual population forecasts. Baldwin Decl. ¶¶ 14, 17. “[B]ad data will certainly lead to inaccurate distribution of funding within Washington, impacting all levels of government for a decade.” Id. ¶ 15. “Poor quality census data will [also] harm Washington’s ability to carry out the population data functions required by law both in the short term and the long term.” Id. ¶ 28. In particular, Washington annually creates a thirty-year population forecast, meaning that the 2020 census data will be used in forecasting until at least the 2050 census data is available, if not longer. See id. ¶ 25. Because “many estimate and forecast models rely on information about changes in trends over time,” “[a]n inaccurate census this year will change the relationships in the data between censuses and make all future estimates and forecasts based on these trends less accurate.” Id.
Finally, the undisputed facts in the record also reflect that judicial relief invalidating the Presidential Memorandum would likely reduce the confusion felt by immigrant communities and therefore alleviate some of the injuries being felt by Plaintiffs. For example, Plaintiff FIEL anticipates that “a court order that stops the exclusion of undocumented immigrants from the census would make [its] efforts to encourage census participation easier by allowing [FIEL] to
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clarify the confusion and help ease the fear caused by” the Presidential Memorandum, and that “it would take FIEL less time and fewer resources to convince” the community “to participate in the census.” Espinosa Supp. Decl. ¶ 3. Relief would also help Plaintiff MRNY “conduct more efficient and effective census outreach” because MRNY could clarify to community members that everyone should, in fact, be counted. ECF No. 194-4 (“Oshiro Supp. Decl.”), ¶ 5. And relief from this Court would also allow Plaintiff Ahri to “publicize the Court’s order to encourage [its] community to open their doors to census outreach workers, rather than hiding out of confusion or fear and avoiding the census completely.” ECF No. 194-5 (“Seon Supp. Decl.”), ¶¶ 6-7. C. Standing Analysis
As noted, Plaintiffs allege two types of harm: apportionment harms stemming directly from the exclusion of illegal aliens from the apportionment base and harms caused by the deterrent effect on census participation. We have considerable doubt that the former suffices to establish jurisdiction. To be sure, if any Plaintiff could show that, as a result of the Presidential Memorandum, it was likely to lose one or more seats in the House of Representatives, it would surely have standing. See, e.g., House of Representatives, 525 U.S. at 331 (holding that the loss of a seat or seats in the House of Representatives “undoubtedly satisfies the injury-in-fact requirement of Article III standing”). But as of today, it is not known whether that harm will come to pass, as the Secretary has not yet determined how he will calculate the number of illegal aliens in each State or even whether it is “feasible” to do so at all. Oral Arg. Tr. 35-37. In the absence of that information, Plaintiffs’ first theory of harm is likely “too speculative for Article III purposes.” Clapper, 568 U.S. at 409 (internal quotation marks omitted). Nor, for these purposes, would there be any harm in waiting until January 2021, when the impact, if any, of the
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Presidential Memorandum would be known, as the Supreme Court has held that an illegal apportionment can be remedied even after the apportionment process has taken place. See Utah v. Evans, 536 U.S. 452, 462-63 (2002).
Ultimately, however, we need not, and do not, decide the issue because we conclude that Plaintiffs’ second theory of harm — that the Presidential Memorandum will have and, indeed, is already having, an effect on the census count itself — suffices to establish standing. Critically, this theory of harm does not depend on what, if anything, the Secretary does in the future to implement the President’s mandate in the Presidential Memorandum. Instead, it is based on Plaintiffs’ undisputed evidence that the Presidential Memorandum is affecting the census count in the present. That is, while the apportionment harms may well be too remote and hypothetical to support standing, the harms to the census count are “certainly impending” and do not depend on “a highly attenuated chain of possibilities.” Clapper, 568 U.S. at 410. Notably, Defendants do not argue otherwise. Instead, they contend that Plaintiffs’ second theory of harm is too “speculative” in a different sense: because Plaintiffs’ evidence is inadequate to prove that the Presidential Memorandum has caused (or will cause) anyone to opt out of participating in the census or that judicial relief would redress that harm. See Defs.’ Mem. 11-19. In defense counsel’s view, Plaintiffs should be required “to identify some subset of people who would not have been chilled . . . from answering the census between April 1st and July 21st, then became chilled on July 21st after the memorandum was issued, and then will be unchilled in [the time remaining before the census ends] by an order of this Court.” Oral Arg. Tr. 38; see also Defs.’ Mem. 52 (citing lack of “rigorous survey[s] or statistical stud[ies] measuring whether [the Presidential Memorandum] . . . has any effect on response rates within immigrant communities”).
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Defendants’ vastly overstate Plaintiffs’ burden. The law does not require Plaintiffs to submit a randomized control trial or other rigorous statistical analysis demonstrating beyond peradventure that there are people who would have participated in the census but for the Presidential Memorandum and who would participate again if we were to grant Plaintiffs the relief they seek. Nor do Plaintiffs need to submit declarations specifically identifying such people, let alone submit declarations from such people. Instead, Plaintiffs need only demonstrate that “there is no genuine dispute as to any” fact material to the standing analysis. Fed. R. Civ. P. 56(a). Notably, in determining whether this standard has been met, we may rely not only on the declarations submitted by Plaintiffs in support of their motion, but also on common sense, basic economics, and reasonable inferences. See, e.g., Friends of the Earth, 528 U.S. at 183-85 (determining that “sworn statements . . . adequately documented injury in fact” where the proposition they were offered for was “entirely reasonable”); Citizens for Responsibility & Ethics in Wash. v. Trump (CREW), 953 F.3d 178, 198 (2d Cir. 2019) (noting that a court may rely on “common sense and basic economics” in evaluating standing (internal quotation marks omitted)); Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 104-05 (2d Cir. 2018) (relying on the defendant agency’s “own pronouncements,” as well as “[c]ommon sense and basic economics,” to find standing (internal quotation marks omitted)); Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 (D.C. Cir. 2017) (Kavanaugh, J.) (“When performing that inherently imprecise task of predicting or speculating about causal effects [in standing analysis], common sense can be a useful tool.”); Texas v. United States, 809 F.3d 134, 156 (5th Cir. 2015) (finding that Texas had established the necessary causal connection between the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program and a future injury because DAPA would have “enable[d]” third parties “to apply for driver’s licenses” and
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there was “little doubt that many would do so”), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (per curiam).
Requiring Plaintiffs to do more would be particularly inappropriate here for two reasons. First, “the integrity of the census is a matter of national importance. As noted, the population count has massive and lasting consequences. And it occurs only once a decade, with no possibility of a do-over if it turns out to be flawed.” New York v. Dep’t of Commerce, 351 F. Supp. 3d at 517; see Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (“1998 Appropriations Act”), § 209(a)(8), Pub. L. No. 105119, 111 Stat. 2440, 2480-81 (1997) (“Congress finds that . . . the decennial enumeration of the population is a complex and vast undertaking, and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or laws of the United States, it would be impracticable for the States to obtain, and the courts of the United States to provide, meaningful relief after such enumeration has been conducted.”). Second, Defendants’ own conduct has forced Plaintiffs’ hands. That is, for reasons that are unclear, the President waited until July 21, 2020, when the census was in full swing, to issue his Presidential Memorandum. Compounding matters, Defendants announced less than two weeks later that they were ending the census earlier than previously planned. The combination of the two meant that Plaintiffs had to rush to court and seek immediate relief; had they waited to develop more rigorous proof of their standing, their arguments about harms to the census count itself would have become moot. Between the sheer enormity of what is at stake and the fact that Defendants’ own conduct gave Plaintiffs only a narrow window in which to seek effective relief, it would be the height of unfairness to hold Plaintiffs to the heightened burden of proof that Defendants endorse.
In light of the undisputed facts in the record, common sense, and basic economics, we are
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satisfied that — with their second theory of harm — Plaintiffs adequately show injury in fact, traceability, and redressability and that we have before us an actual case or controversy “of the sort traditionally amenable to, and resolved by, the judicial process.” Steel Co., 523 U.S. at 102. Moreover, Defendants “have failed to set forth any specific facts showing that there is a genuine issue of standing for trial.” House of Representatives, 525 U.S. at 330.
1. Injury in Fact To begin, Plaintiffs have proved that, in the wake of the Presidential Memorandum, some
number of people will not participate in, and thus not be counted in, the census. As of August 3, 2020 — the day the Census Bureau announced that field operations would end a month earlier than previously planned, and approximately two weeks after the Presidential Memorandum was issued — the Census Bureau had counted only about sixty-three percent of households in the 2020 census. See Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count, U.S. CENSUS BUREAU (Aug. 3, 2020), https://www. census.gov/newsroom/press-releases/2020/delivering-complete-accurate-count.html. Many of those not counted are undoubtedly in the “hard to count” population, which includes immigrant and Hispanic populations as well as illegal aliens. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 577. The record in the citizenship question litigation and the declarations here make clear that this population is even “harder” to count during this census due to widespread concerns, fueled by the policies and rhetoric of this Administration, that census data will be used for immigration enforcement purposes. See id. at 562, 579-83; Colón Decl. ¶ 11; Oshiro Decl. ¶¶ 12, 14; Seon Decl. ¶ 16; Barreto Decl. ¶¶ 60-62. Plaintiffs’ uncontested declarations and common sense indicate that the Presidential Memorandum has compounded, and will compound, these concerns, and that some number of people in these communities will choose not to
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participate in the census and take steps to avoid being counted. See, e.g., Cullinane Decl. ¶ 8; Espinosa Supp. Decl. ¶ 5. To be sure, on the present record, the Court cannot calculate with precision the number of people that will be so affected. But there is no doubt that that number is greater than zero, and there is a substantial likelihood that an appreciable number of people will be dissuaded from participating in the census. See Barreto Decl. ¶¶ 60-65.
From these ongoing and direct effects on the census flow several forms of injury to Plaintiffs and their members or citizens. First, insofar as Plaintiffs include or represent high concentrations of immigrant and Hispanic populations, the effects on the census undoubtedly create a risk of a net differential undercount that could result in the loss of political power and federal funds, two classic forms of Article III injury. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 607-08; Carey v. Klutznick, 637 F.2d 834, 838 (2d Cir. 1980) (per curiam); Barreto Decl. ¶¶ 70-71; Thompson Decl. ¶¶ 13-17. Given the time sensitivities inherent in their claims of census-related injuries — there were little more than two months remaining for census operations when the President issued the Presidential Memorandum and, less than two weeks later, Defendants shortened that period by a full month — Plaintiffs have obviously not had an opportunity to perform any sort of empirical study on the size of the likely effects on the census that would reveal the likelihood of such injuries. In any event, the likelihood of two other forms of injury are more certain on the current record: degradation of the quality of, and ability to have confidence in, census data and diversion by the NGO Plaintiffs of organizational resources.
a. Degradation of Census Data First, if a portion of the population does not participate in the census count, it will inevitably degrade the quality and accuracy of census data, even if only at the subgroup or local level. Salvo Decl. ¶¶ 8-12. That is particularly true if, as is the case here, the people who are not
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counted are not evenly distributed across the population, but are concentrated, either geographically or demographically. See Barreto Decl. ¶ 83; Thompson Decl. ¶¶ 15-17, 23. The degradation of census data, in turn, harms the Governmental Plaintiffs’ ability to allocate resources, such as educational and public health resources, efficiently and effectively. See McCaw Decl. ¶¶ 3-6; Medina Decl. ¶¶ 2-4; Baldwin Decl. ¶¶ 15-28. Separate and apart from that, it harms confidence in the census data. See Kaneff Decl. ¶ 5 (“The lower the response rate, the larger the margin of error in the demographic characteristics.”). Crucially, these harms will occur whether or not there is a net differential undercount — meaning that this theory of injury does not depend on connecting the deterrent effect of the Presidential Memorandum on immigrant households and the like to a net differential undercount of people who live in such households. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 610-11; Salvo Decl. ¶¶ 1418.
As explained in New York v. Department of Commerce, the degradation of census data is a legally cognizable form of injury sufficient to support standing. See 351 F. Supp. 3d at 610-15. In particular, a State or local government that relies on the information provided by the federal government under an existing statutory arrangement suffers a sufficiently “concrete” and “particularized” injury for purposes of Article III when the federal government degrades the quality of that information. States are sovereign entities with sovereign interests in the making and enforcement of their own laws. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982); cf. Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers) (concluding that Maryland suffered an injury to its “law enforcement and public safety interests” from a lower-court order preventing the State from utilizing DNA samples for law enforcement purposes pursuant to a state statute). But they frequently do so in collaboration
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with, or in reliance on, the federal government — such is the genius of the federal system, which has historically embraced various creative models of “cooperative federalism.” See, e.g., New York v. United States, 505 U.S. 144, 167-69 (1992); Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 286-89 (1981). States have long relied on federal decennial census data for countless sovereign purposes, and indeed many of the State Plaintiffs here even require the use of such data by law; in some instances, it is written into their state constitutions. See, e.g., Rapoza Decl. ¶ 5 (explaining that the Rhode Island Constitution mandates using census data to establish the House and Senate districts); Brower Decl. ¶¶ 17, 22-23 (explaining that Minnesota law requires the use of census data to determine funding for roads and education).
Meanwhile, by virtue of the Constitution and the Census Act, it is, of course, the federal government’s job to collect and distribute accurate federal decennial census data. See U.S. Const. art. I, § 2, cl. 3; see also Evans, 536 U.S. at 478 (explaining that the Framers had a “strong constitutional interest in [the] accuracy” of the census); Wisconsin v. City of New York, 517 U.S. 1, 20 (1996) (holding that the conduct of the census must bear a “reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census,” namely, obtaining an accurate count of the population in each State); 1998 Appropriations Act, Pub. L. No. 105-119, § 209(a)(6), 111 Stat. at 2481 (“Congress finds that . . . it is essential that the decennial enumeration of the population be as accurate as possible, consistent with the Constitution and laws of the United States . . . .”). When the federal government degrades the quality of that data, it therefore inflicts a cognizable injury on the sovereign interests of reliant States.9

9

That does not mean that, in every case, a State will have a “right” to such data — or a

right to data of a certain quality — sufficient to support a valid cause of action to obtain it. But it

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An example may be helpful in illustrating the point. Suppose a State were to premise certain of its policies on a person’s lawful presence in the United States — for example, suppose that it chose to deny certain benefits to undocumented immigrants or required its lawenforcement officials to inquire into the immigration status of any person detained in state custody for any reason. “The accepted way” for States “to perform [such] status checks” — and surely the most reliable — is to contact the DHS’s Immigration and Customs Enforcement (“ICE”), the federal agency that accepts and responds to such inquiries from interested States. Arizona v. United States, 567 U.S. 387, 411 (2012). Now suppose that ICE were to degrade the quality of its data set, thereby undermining its usefulness to the State as a tool for implementing its policy priorities. If this hypothetical State were to challenge the decisions causing the degradation in immigration-status data, the federal agency could certainly defend its actions on the grounds that they were lawful. But could it seriously deny that the State had suffered a cognizable injury for purposes of standing? Surely not.
Indeed, ample case law supports the proposition that a State has a strong sovereign interest in conducting its own policy, the burdening of which causes an injury in fact for Article III purposes. One such sovereign interest is a State’s “exercise of sovereign power over individuals and entities within [its] jurisdiction — this involves the power to create and enforce a legal code, both civil and criminal.” Alfred L. Snapp & Son, 458 U.S. at 601. Another such sovereign interest — which, in light of the frequent prohibition on parens patriae suits against the federal government, see Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923), is “distinct from . . . the general well-being of its residents” — is a State’s “interest in securing observance
does mean that a State suffers a concrete and particularized injury when the federal government degrades important tools of sovereignty — or takes those tools away altogether.
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of the terms under which it participates in the federal system,” Alfred L. Snapp & Son, 458 U.S. at 607-08; cf. Maine v. Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has a legitimate interest in the continued enforceability of its own statutes.”); Diamond v. Charles, 476 U.S. 54, 65 (1986) (“Because the State alone is entitled to create a legal code, only the State has the kind of ‘direct stake’ . . . in defending the standards embodied in that code.”).
The Fifth Circuit’s decision in Texas v. United States, 809 F.3d 134, is instructive on this front. In that case, Texas led a coalition of States in a challenge to the Obama Administration’s DAPA program. The Court held that the States had suffered a cognizable injury for purposes of standing because DAPA would have entitled its recipients to obtain driver’s licenses under existing state law and providing those licenses would have come at a financial cost to Texas. See id. at 155-56. In denying a stay of the district court’s preliminary injunction pending appeal, the Fifth Circuit cited Alfred L. Snapp & Son, explained that Texas possessed a sovereign interest in the maintenance of its own legal code, and held that “Texas’s forced choice between incurring costs and changing its laws is an injury because those laws exist for the administration of a state program, not to challenge federal law, and Texas did not enact them merely to create standing.” Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015). The court reasoned that “if pressure to change state law in some substantial way were not injury, States would have no standing to challenge bona fide harms because they could offset most financial losses by raising taxes or fees.” Id. Several months later, the Fifth Circuit affirmed the preliminary injunction on the merits, reiterating and confirming its conclusions as to standing. The court held that “states may have standing based on . . . federal interference with the enforcement of state law, at least where the state statute at issue regulates behavior or provides for the administration of a state program and does not simply purport to immunize state citizens from federal law.” Texas, 809 F.3d at
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153 (alterations, footnotes, and internal quotation marks omitted). Such “intrusions,” the court explained, “are analogous to pressure to change state law.” Id.
Like the state plaintiffs in Texas, many Governmental Plaintiffs here have enacted their reliance on federal census data into law — in some cases, as noted, even into their constitutions. Moreover, as in Texas, “there is no allegation,” let alone proof, that those jurisdictions enacted their laws or ratified their constitutions “to manufacture standing” in these cases. Id. at 159. If the census data is degraded (or even perceived to be degraded), these Plaintiffs will be subjected to a forced choice: They can use the degraded data, resulting in worse policy; they can spend money to compensate for the damage; or they can change their laws to relieve themselves of the legal obligation to use federal census data in making and enforcing their laws (which would presumably necessitate the expenditure of additional resources to collect data of their own anyway). Such “pressure[] to change state law constitutes an injury” within the meaning of Article III. Texas, 787 F.3d at 749; see Texas, 809 F.3d at 153. Accordingly, most, if not all, of the Governmental Plaintiffs have proved an imminent injury to their sovereign interests due to the degradation in quality of census data.
b. Diversion of Resources Additionally, the risk that some hard to count population will not participate in census results in another form of injury: the diversion of resources. In Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), the Supreme Court held that an organization can establish Article III injury in fact by proving “concrete and demonstrable injury to [its] activities — with the consequent drain on [its] resources.” See also id. at 379 n.21 (holding that an organization that proves it “has indeed suffered impairment” in its activities has proved an Article III injury); Nnebe v. Daus, 644 F.3d 147, 157 (2d Cir. 2011); Ragin v. Harry Macklowe Real Estate Co., 6
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F.3d 898, 904-06 (2d Cir. 1993). In particular, “a nonprofit organization establishes an injury-infact if . . . it establishes that it spent money to combat activity that harms its organization’s core activities.” Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 111 (2d Cir. 2017) (internal quotation marks omitted). “An organization need only show a ‘perceptible impairment’ of its activities in order to establish injury in fact.” New York v. U.S. Dep’t of Homeland Sec., 969 F.3d at 61 (quoting Ragin, 6 F.3d 898 at 905).
As they did in New York v. U.S. Department of Commerce, Defendants appear to suggest that Havens Realty recognizes Article III injuries arising from organizational expenditures only where those expenditures are made in response to injuries that are themselves sufficiently imminent and impending to satisfy Article III. See Defs.’ Reply 3; Oral Arg. Tr. 42-43; see also New York v. Dep’t of Commerce, 351 F. Supp. 3d at 616. Organizations asserting standing based on the diversion-of-resources theory do indeed need to “show that both the anticipated expenditures and ensuing harm to their organizations’ activities are ‘certainly impending,’” Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015) (quoting Clapper, 568 U.S. at 409), lest these plaintiffs be permitted to “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm,” Clapper, 568 U.S. at 416. But that standard does not mean that a plaintiff must allege a second form of independently adequate injury in fact, which “would render the category of plaintiffs that could establish standing under a Havens Realty theory a null set” and make Havens Realty a dead letter. New York v. Dep’t of Commerce, 351 F. Supp. 3d at 616. Instead, however “inexact” the standard may be, “courts are inclined to find standing if it can be said that there is no better time to resolve the issues raised by the parties — that is, when they will be in no better position later than now.” Young Advocates for Fair Educ. v. Cuomo, 359 F. Supp. 3d 215, 237 (E.D.N.Y. 2019) (internal quotation marks omitted).
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Plaintiffs satisfy these standards. First, Defendants do not dispute, and the Court has little trouble concluding, that the impairment alleged by NGO Plaintiffs goes to their core activities. See, e.g., Common Cause Ind. v. Lawson, 937 F.3d 944, 955 (7th Cir. 2019) (“The Organizations in this case have shown that Act 442’s effect on their work goes far beyond ‘business as usual.’ They have done so through concrete evidence showing that Act 442 is already disrupting their operations . . . .”); OCA-Greater Hous. v. Texas, 867 F.3d 604, 610 (5th Cir. 2017) (“The undisputed summary-judgment evidence established that [the plaintiff’s] primary mission is voter outreach and civic education, particularly ‘getting out the vote’ among its members.”). Each of the NGO Plaintiffs is primarily dedicated to serving and advocating for communities that have traditionally been undercounted by the census, and each is dedicated to promoting census participation in these communities. See Choi Decl. ¶¶ 3-6; Oshiro Decl. ¶¶ 25; Espinosa Decl. ¶¶ 2, 5-7; Khalaf Decl. ¶¶ 4-8; Seon Decl. ¶¶ 2-6; Torres Decl. ¶¶ 1, 5-11. In fact, several NGO Plaintiffs partner with the Census Bureau and/or state and local governments to promote census participation within these communicates. See, e.g., Torres Decl. ¶ 11; Espinosa Supp. Decl. ¶ 6.
Second, Plaintiffs’ uncontested declarations demonstrate that the NGO Plaintiffs have diverted resources in response to the Presidential Memorandum’s chilling effects on participation in the census and the risks that poses for their members and their core activities. See Choi Decl. ¶¶ 14-27; Espinosa Decl. ¶¶ 14-17; Khalaf Decl. ¶¶ 8-16; Oshiro Decl. ¶¶ 15-17; Seon Decl. ¶¶ 17-19; Torres Decl. ¶¶ 2, 21-23; ECF No. 149-1 (“Awadeh Decl.”), ¶¶ 4-5; Espinosa Supp. Decl. ¶¶ 7-8; Oshiro Supp. Decl. ¶¶ 2, 4; Seon Supp. Decl. ¶ 4.10 For example, Steven Choi, the
10 Plaintiffs provide evidence of similar resource diversions by similarly situated organizations, albeit not Plaintiffs here. See Banerji Decl. ¶¶ 5-6; Matos Decl. ¶¶ 9-14; Sivongxay Decl. ¶¶ 16-20, 23-24; ECF No. 76-51 (“Aranda-Yanoc Decl.”), ¶ 8.
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executive director of Plaintiff New York Immigration Coalition (“NYIC”), states that his organization had to develop new messaging and social media campaigns, and issue new member updates and press releases, to counter the Presidential Memorandum’s contradiction of themes that had previously been core to NYIC’s census outreach efforts. Choi Decl. ¶ 17. NYIC expects to increase staff time and spending by twenty percent over previously anticipated levels to achieve its census outreach and advocacy goals. See id. ¶ 21. Similarly, Plaintiff Ahri had to develop entirely new outreach materials, train staffers with new scripts, and respond to media inquiries; it expects to increase staff time and spending devoted to these efforts by fifteen percent as a result of the Presidential Memorandum. See Seon Decl. ¶¶ 17-19. Meanwhile, Plaintiffs ADC and ADRCI anticipate increasing staff time and spending devoted to Census efforts by approximately twenty-five percent as a result of the Memorandum, see Khalaf Decl. ¶ 14, and Plaintiff FIEL “anticipates having to divert approximately $5,000 from other mission critical programs and services to the 2020 Census education and outreach as a result of the Presidential Memorandum,” Espinosa Decl. ¶ 15.
These resource diversions may not be large in absolute terms, but they constitute a “perceptible impairment” of the NGO Plaintiffs’ activities and thus qualify as injuries in fact. New York v. U.S. Dep’t of Homeland Sec., 969 F.3d at 61 (internal quotation marks omitted); see OCA-Greater Hous., 867 F.3d at 612 (“[T]he injury alleged as an Article III injury-in-fact need not be substantial; it need not measure more than an identifiable trifle.” (internal quotation marks omitted)). In short, the NGO Plaintiffs “are dedicated to providing an array of legal and social services to non-citizens and they have expended significant resources to mitigate the [Presidential Memorandum’s] impact on those they serve. In so doing, they have diverted resources that would otherwise have been available for other programming, a perceptible
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opportunity cost that suffices to confer standing.” New York v. U.S. Dep’t of Homeland Sec., 969 F.3d at 61 (internal quotation marks omitted); see also Common Cause Ind., 937 F.3d at 952 (“According to the evidence put forward by the Organizations, Act 442 has created a culture of voter confusion, and it has already inflicted costs on them.”); OCA-Greater Hous., 867 F.3d at 612 (“[The plaintiff] went out of its way to counteract the effect of Texas’s allegedly unlawful voter-interpreter restriction . . . with a view toward . . . mitigating its real-world impact on [the plaintiff’s] members and the public . . . an undertaking that consumed its time and resources in a way they would not have been spent absent the Texas law. Hence, the Texas statutes at issue ‘perceptibly impaired’ OCA’s ability to ‘get out the vote’ among its members.”).
2. Traceability Next, we have little trouble finding that these injuries in fact are fairly traceable to the
Presidential Memorandum. Once again, the uncontested record and common sense satisfy Plaintiffs’ burden. Plaintiffs demonstrate that the Presidential Memorandum’s chilling effect on immigrant census participation is at least partially responsible for a degradation in the quality of census data. See, e.g., ECF No. 76-24 (“Jimenez Decl.”), ¶¶ 3-5 (explaining that the Memorandum’s deterrence effect on immigrant household census participation will cause an undercount and a subsequent reduction in federal healthcare, infrastructure, and education funding for Plaintiff Monterey County); Salvo Decl. ¶ 12 (noting that the Presidential Memorandum “is likely to make the Census Bureau resort to less-reliable methods, including statistical imputation, more frequently in immigrant communities than it otherwise would” which will “result[] in poorer quality (less accurate) data both in terms of demographic characteristics as well as the actual count of persons”). NGO Plaintiffs have also made clear that the Presidential Memorandum is responsible for their diversion of resources; in other words, they are
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expending resources they would not otherwise precisely because of the Presidential Memorandum. See, e.g., Choi Decl. ¶¶ 20-21; Khalaf Decl. ¶¶ 14-15; Seon Decl. ¶ 17; Oshiro Supp. Decl. ¶¶ 3-4; Torres Decl. ¶¶ 22-23; Espinosa Supp. Decl. ¶ 4. This undisputed evidence satisfies Plaintiffs’ burden to demonstrate the “de facto causality” that Article III demands. Dep’t of Commerce v. New York, 139 S. Ct. at 2566 (internal quotation marks omitted).
In arguing otherwise, Defendants point out that Plaintiffs’ theory of causation relies in part on the intervening actions of third-party actors, such as Spanish-language media disseminating information about the Presidential Memorandum. See Defs.’ Mem. 16. “It makes little sense,” they argue, “for Plaintiffs to attribute whatever harm is caused by those independent actors to the Memorandum itself, particularly if their messages convey the incorrect impression that the Memorandum increases the risk of individuals’ information being linked to immigration records and those individuals facing immigration enforcement.” Id. (internal quotation marks and alterations omitted). More broadly, they assert that Plaintiffs’ injuries are traceable to the “macro environment” of fear in the immigrant and Hispanic communities that predated the Presidential Memorandum, not to the Memorandum itself. Id. at 15-19.
These arguments are unpersuasive. For one thing, they ignore entirely Plaintiffs’ evidence that the Presidential Memorandum has deterred, and will continue to deter, people from participating in the census because they conclude “that they don’t see a benefit in filling out the census form if they will not be counted.” Pls.’ Mem. 43 (internal quotation marks and alterations omitted); see, e.g., Choi Decl. ¶ 17; Cullinane Decl. ¶ 9; Matos Decl. ¶¶ 11, 13; Oshiro Decl. ¶¶ 10-12; ECF No. 76-38 (“Roche Decl.”), ¶ 9; Torres Decl. ¶ 19; Espinosa Supp. Decl. ¶¶ 5-6. For such people, the chain of causation between the Presidential Memorandum and nonparticipation has only a single link. Thus, Plaintiffs need not and do not rely on the
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dissemination of information by third parties to establish that certain illegal aliens will plausibly — even rationally — decide not to participate based directly on a correct understanding of the Presidential Memorandum’s import.
Second, as noted above, the Supreme Court has long made clear that the defendant’s conduct need not be “the very last step in the chain of causation.” Bennett, 520 U.S. at 169. Indeed, the traceability requirement may be met even where several steps on the causal chain stand between the defendant’s conduct and the plaintiff’s injury. Davis v. Federal Election Commission, 554 U.S. 724, for example, involved a challenge to a campaign finance law that increased campaign contribution limits for any candidate whose opponent’s personal campaign expenditures exceeded his own by a certain amount. At the time of filing, the plaintiff was at least three steps away from suffering any concrete harm: He had to spend a sufficient amount of his own money; his opponent had to refrain from a comparable level of self-funding; and his opponent had to then take advantage of the law by accepting heightened contributions. Even so, the Court found that the plaintiff faced a “real, immediate, and direct [injury] . . . when he filed suit.” Id. at 734. Notably, the Court deemed that assumption valid based on little more than evidence that “most candidates who had the opportunity to receive expanded contributions had done so.” Id. at 735 (emphasis added). Moreover, the Court did not require proof that the government conduct had a coercive effect on the third party’s action; evidence that allowed the Court to predict how the third party would likely act in response to the government action was sufficient. See id.; see also Lujan, 504 U.S. at 562 (noting that, when injury depends on the conduct of third parties, it is sufficient to show “choices have been or will be made in such manner as to produce causation and permit redressability” (emphasis added)); Nat. Res. Def. Council, 894 F.3d at 104-05 (finding “the agency’s own pronouncements,” as well as “[c]ommon
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sense and basic economics,” supported a conclusion that an “increased penalty has the potential to affect [third parties’] business decisions and compliance approaches” in a manner that would result in harm to the petitioners (internal quotation marks omitted)).
In light of these principles and cases, Defendants’ arguments are unpersuasive. At the end of the day, they are little more than a rehash of Defendants’ arguments in the citizenship question litigation, which were rejected. There, like here, Defendants argued that Plaintiffs’ injuries were not “fairly traceable” to their conduct because the injuries depended on the intervening acts of third parties influenced by misinformation — namely, that the federal government could use their census answers for law enforcement and immigration enforcement purposes. New York v. Dep’t of Commerce, 351 F. Supp. 3d at 623-24. There, like here, Defendants argued that Plaintiffs’ injuries were not “fairly traceable” to their conduct because the injuries were attributable to an independently existing macro environment of fear permeating the immigrant and Hispanic communities. Id. at 621-22. Yet the Supreme Court rejected those arguments. As that Court reaffirmed, “Article III requires no more than de facto causality,” a standard that is met where Government action has a “predictable effect . . . on the decisions of third parties.” Dep’t of Commerce v. New York, 139 S. Ct. at 2566 (internal quotation marks omitted). Here, as in the citizenship question litigation, Plaintiffs have proved that their injuries arise from the predictable effects of Government action, however rational or reasonable those effects may be.
3. Redressability Finally, we conclude that Plaintiffs satisfy the redressability requirement as well. To be
sure, Plaintiffs have not proved — and perhaps could not prove — that a favorable ruling would lead everyone who has decided, or will decide, not to participate in the census as a result of the
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Presidential Memorandum to change course. But Plaintiffs’ burden is not to show that a favorable court ruling would fully remedy the injuries that they have suffered or will suffer. Instead, they need show only that the “risk [of harm] would be reduced to some extent if [they] receive[] the relief they seek.” Massachusetts v. E.P.A., 549 U.S. at 526 (emphasis added); see also CREW, 953 F.3d at 194 (finding the redressability requirement satisfied because “it logically follows that relief would redress [the plaintiffs’] injury — at least to some extent”); Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 716 (6th Cir. 2015) (“[I]t need not be likely that the harm will be entirely redressed, as partial redress can also satisfy the standing requirement.”).
The Supreme Court’s decision in Massachusetts v. E.P.A. is instructive. There, Massachusetts and other States challenged the EPA’s decision not to regulate four greenhouse gases within the United States. On appeal, the Supreme Court held that the States had standing to challenge the EPA’s decision based on their showing, through “unchallenged affidavits,” that climate change was caused by greenhouse gases and caused various harms. 549 U.S. at 522. The Court did so despite the EPA’s contention that there was no “realistic possibility” that the relief sought “would mitigate global climate change and remedy their injuries,” particularly “because predicted increases in greenhouse gas emissions from developing nations” were “likely to offset any marginal domestic decrease.” Id. at 523-24. The Court explained:
While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. Because of the enormity of the potential consequences associated with manmade climate change, the fact that the effectiveness of a remedy might be delayed . . . is essentially irrelevant. Nor is it dispositive that developing countries . . . are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. Id. at 525-26 (citation and footnote omitted). Notably, the Court did not demand empirical proof that the remedy sought would have any marginal effect on global warming. The causal
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connection between greenhouse gases and climate change, combined with the EPA’s “ardent support for various voluntary emission-reduction programs” (with which the “EPA would presumably not bother . . . if it thought emissions reductions would have no discernable impact on future global warming”), was enough. Id. at 526 (internal quotation marks omitted). Because the relief sought would reduce the risk of injury “to some extent,” the States had standing. Id.
Here too, Plaintiffs’ uncontested affidavits show that the relief they seek — a declaration that the Presidential Memorandum is unlawful and an injunction barring any effort to implement it — would reduce “to some extent” their risk of suffering injuries relating to the census. If anything, the record here provides even more support for a finding of redressability than the record in Massachusetts v. E.P.A. did. First, as discussed above, Plaintiffs have provided proof that there are likely people who have decided, or will decide, not to participate in the census for the simple reason that, under the Presidential Memorandum, they will not count for apportionment purposes. A court order invalidating the Presidential Memorandum would redress that harm in a straightforward manner. See, e.g., Carpenters Indus. Council, 854 F.3d at 6 n.1 (Kavanaugh, J.) (“[I]f a government action causes an injury, enjoining the action usually will redress that injury.”). Second, Plaintiffs’ uncontested declarations provide evidence supporting a finding of redressability. Plaintiff Ahri, for example, explains that the injunction barring the citizenship question was useful in quelling concerns in the community it serves and that an order granting relief in this case would similarly make its census outreach efforts more efficient and effective. Seon Supp. Decl. ¶¶ 4-7; see also Oshiro Supp. Decl. ¶ 5; Espinosa Supp. Decl. ¶ 8. And Plaintiffs submit an expert report noting that injunctions barring implementation of other immigration-related executive actions have had “measurable consequences on promoting trust among immigrant communities and influencing behavioral interactions with various aspects of
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government.” See Barreto Decl. ¶¶ 66-69. In short, we find that Plaintiffs’ requested relief would “likely . . . at least diminish further instance of” Plaintiffs’ census-related harms. CREW, 953 F.3d at 194. Indeed, “[b]ecause Plaintiffs have successfully alleged” that these harms are “ongoing, it logically follows that relief would redress their injury — at least to some extent, which is all that Article III requires.” Id.
Only two of Defendants’ counterarguments warrant further discussion. First, Defendants maintain that Plaintiffs’ census-related injuries would not be remedied by a ruling in Plaintiffs’ favor because the alleged “‘macro environment’ of mistrust around immigration” would remain. Defs.’ Mem. 19. But that is akin to the argument the EPA made, and the Supreme Court rejected, in Massachusetts v. E.P.A.: that granting relief would not remedy the States’ injuries because there were other, independent causes for those injuries — namely, the emissions of developing nations — that would persist. See 549 U.S. at 524. Put differently, the mere fact that the Presidential Memorandum causes only incremental harms, and that there are other causes of those same harms, does not defeat a finding of redressability. See id. (“EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum.”).
Second, Defendants suggest that Plaintiffs cannot show redressability because “appellate review would likely last well past the end of the conduct of the census.” Defs.’ Reply 4. Conspicuously, however, Defendants cite no authority for the novel proposition that the availability of higher court review and the possibility of reversal can render a dispute nonjusticiable. Taken to its logical conclusion, that argument would suggest that a plaintiff could never obtain emergency relief in the face of a looming deadline. Far from rejecting such claims, courts routinely hear them on an expedited basis (as we have done here). See, e.g.,
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League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (noting that in the election context, “once the election occurs, there can be no do-over and no redress” making “injur[ies] to . . . voters real and completely irreparable if nothing is done”). Finally, it bears mentioning that it is Defendants’ own conduct that has put Plaintiffs in such a precarious position. The President could have issued his Presidential Memorandum well before the census began, in which case Plaintiffs would have had ample time to obtain a definitive ruling on their claims to preempt any chilling effect. Or he could have waited until census operations were over, in which case there would have been no risk of the census-related harms that Plaintiffs seek to remedy. Instead, for unknown reasons, the President waited more than a year after the Supreme Court rejected the citizenship question to issue his Presidential Memorandum, at which point the census was (and still is) in full swing. It would be perverse to conclude that, through their own conduct, Defendants could prevent Plaintiffs from even obtaining a hearing on their claims.
4. Conclusion In the final analysis, “the gist of the question of standing” (and constitutional ripeness)
“is whether [the plaintiffs] have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’” Massachusetts v. E.P.A., 549 U.S. at 517 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). That is, the standing requirement “preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented . . . will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Id. (quoting Lujan,
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504 U.S. at 581 (Kennedy, J., concurring). Based on our thorough review of the record — including the uncontested declarations submitted in support of Plaintiffs’ motion — and the wellestablished standards for determining whether a plaintiff has standing, we are confident we have jurisdiction to proceed.11 D. Prudential Ripeness
As noted, Defendants also invoke the prudential ripeness doctrine. See Defs.’ Mem. 610; Defs.’ Reply 1-2. Unlike standing and constitutional ripeness, prudential ripeness does not relate to the Court’s jurisdiction. Instead, “when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay.” Simmonds, 326 F.3d at 357. The “ripeness requirement is designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” Ohio Forestry
11 Defendants do not argue that we should engage in a zone-of-interests analysis, which the Supreme Court has sometimes described as a component of “prudential standing.” Lexmark Int’l, 572 U.S. at 127 n.3. Accordingly, they have waived the argument. See Fed. Defs. of N.Y., Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 128 (2d Cir. 2020) (holding, after Lexmark, that the zone-of-interests test is not jurisdictional); see also, e.g., Young v. Conway, 698 F.3d 69, 85 (2d Cir. 2012) (“It is well-settled that non-jurisdictional arguments and defenses may be waived . . . .”). In any event, in light of Lexmark’s observation that “the zone-of-interests analysis . . . asks whether this particular class of persons has a right to sue under this substantive statute” and “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim,” 572 U.S. at 127 (emphasis added) (alterations, citations, and internal quotation marks omitted), we doubt that it has any application here, as the claims on which Plaintiffs move are constitutional and equitable in nature. See, e.g., Sierra Club v. Trump, 929 F.3d 670, 700-02 (9th Cir. 2019).
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Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732-33 (1998) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)); see Nat’l Org. for Marriage, 714 F.3d at 691.12
“To determine whether to abstain from a case on prudential ripeness grounds, we proceed with a two-step inquiry,” evaluating “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Nat’l Org. for Marriage, 714 F.3d at 691 (internal quotation marks omitted). The first step of the inquiry “is concerned with whether the issues sought to be adjudicated are contingent on future events or may never occur.” N.Y. Civil Liberties Union v. Grandeau, 528 F.3d 122, 132 (2d Cir. 2008) (internal quotation marks and alterations omitted). “In assessing th[e] possibility of hardship, we ask whether the challenged action creates a direct and immediate dilemma for the parties.” Id. at 134 (internal quotation marks omitted). The two-step inquiry requires consideration, in turn, of three factors: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n, 523 U.S. at 733.
Considering these factors here, we conclude that the test for prudential ripeness is “easily satisfied.” Susan B. Anthony List, 573 U.S. at 167. First, given that Plaintiffs’ alleged censusrelated harms are occurring now, and can be remedied only if we rule on their claims before census operations conclude in a matter of days or weeks, delaying review would cause Plaintiffs
12 In recent years, the Supreme Court has cast doubt on the “continuing vitality of the prudential ripeness doctrine,” on that ground that it “‘is in some tension with . . . the principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Susan B. Anthony List, 573 U.S. at 167 (internal quotation marks omitted). But because neither the Supreme Court nor the Second Circuit has abandoned the doctrine yet, we are bound to consider Defendants’ arguments here.
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grave hardship. See Chamber of Commerce of U.S. v. Reich, 57 F.3d 1099, 1100 (D.C. Cir. 1995) (per curiam) (finding a challenge to an Executive Order announcing a policy of the executive branch ripe where “the injury alleged . . . [is that] the mere existence of the Order alters the balance of bargaining power between employers and employees by creating a disincentive for employers to hire replacement workers”). Justice delayed would indeed be justice denied. Moreover, because there are no do-overs for the census, the adverse consequences of that delay could resonate for a decade, until the next decennial census. Second, although Defendants assert in conclusory fashion that judicial intervention “would inappropriately interfere with the Bureau’s ongoing process by hindering agency efforts to refine its policies and to apply its expertise,” Defs.’ Reply 2 (internal quotation marks omitted), that assertion borders on frivolous. On its face, the Presidential Memorandum does not purport to regulate the actual conduct of the census, see Presidential Memorandum, 85 Fed. Reg. at 44,679 (“Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” (emphasis added)), and Defendants themselves concede that it “does not affect how the Census Bureau is conducting its remaining enumeration operations,” Defs.’ Mem. 12. Moreover, as discussed below, relief can be crafted to minimize, if not eliminate, interference with administrative action. And finally, although the standing-related question of whether or to what extent Plaintiffs would suffer apportionment-related harms would benefit from further factual development, the gravamen of Plaintiffs’ claims — that the President lacks the authority to exclude illegal aliens from the apportionment base — “presents an issue that is ‘purely legal, and will not be clarified by further factual development.’” Susan B. Anthony List, 573 U.S. at 167 (quoting Thomas, 473 U.S. at 581).
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Thus, we conclude there is no basis to defer consideration of Plaintiffs’ claims on ripeness ground. The fact that the Presidential Memorandum contains something akin to a “savings clause” — namely, that it is “the policy of the United States to exclude” illegal aliens from the apportionment base “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” Presidential Memorandum, 85 Fed. Reg. at 44,680 (emphasis added) — does not alter that conclusion. Where, as here, the President’s proclamation “unambiguously commands action” such that “there is more than a ‘mere possibility that some agency might make a legally suspect decision,’” such a “savings clause does not and cannot override” the proclamation’s “meaning.” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1240 (9th Cir. 2018) (quoting Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002)). Indeed, savings clauses must be “read in their context, and they cannot be given effect when the Court, by rescuing the . . . measure, would override clear and specific language.” Id. at 1239. In this case, the President explicitly declares that “it is the policy of the United States to exclude” illegal aliens “from the apportionment base,” an unambiguous directive that, as discussed above, is having immediate and ongoing effects. Moreover, the Presidential Memorandum mandates that this policy be effected “to the maximum extent” feasible and consistent with law. Presidential Memorandum, 85 Fed. Reg. at 44,680 (emphasis added). Given that “a presumption of regularity attaches to the actions of Government agencies,” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), we must and do presume that the Secretary and the Census Bureau will abide by the President’s directives and work diligently to help exclude illegal aliens from the apportionment base to the maximum extent possible. Whether doing so would be a lawful exercise of the President’s authority is a pure legal question that can be addressed now.
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THE MERITS In their motion, Plaintiffs seek relief on two grounds: first, they argue that the Presidential Memorandum violates Article I and the Fourteenth Amendment to the Constitution; and second, they contend that it constitutes an ultra vires violation of the laws governing the census and apportionment. Pls.’ Mem. 1-2. On the latter front, Plaintiffs insist that the Presidential Memorandum exceeds the powers delegated by Congress in 13 U.S.C. § 141 and 2 U.S.C. § 2a in at least two ways: (1) because it contemplates calculating apportionment using tabulations other than those produced by the census and (2) because it seeks to exclude illegal aliens from the apportionment base regardless of whether they are “persons in” a “State” as those terms are used in Section 2a(a). Id. at 27-36. Although Plaintiffs urge us to decide both their constitutional claims and their statutory claims, and the parties focus mostly on the constitutional issues, courts have long been admonished not to “pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); accord Slack v. McDaniel, 529 U.S. 473, 485 (2000); House of Representatives, 525 U.S. at 343-44. Accordingly, we begin — and, as it turns out, end — with Plaintiffs’ statutory claims. In doing so, of course, “we start with the text of the statute.” Babb v. Wilkie, 140 S. Ct. 1168, 1172 (2020). “Where the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008) (internal quotation marks omitted). We may look to legislative history and other tools of statutory construction if the statutory terms are ambiguous or “to corroborate and fortify our
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understanding of the text.” Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 783 (2018) (Sotomayor, J., concurring). A. Apportionment Must Be Based on the Results of the Census Alone
Plaintiffs’ first argument is that the Presidential Memorandum violates the statutes governing the census and apportionment by producing apportionment figures that are not based solely on the decennial census. This argument relies on the interplay between Section 141 and Section 2a. Subsection (a) of the former requires the Secretary to conduct the “decennial census of population.” 13 U.S.C. § 141(a). Subsection (b) then requires the Secretary to report to the President “[t]he tabulation of total population by States under subsection (a) of this section” — that is, under the “decennial census” — “as required for the apportionment of Representatives in Congress.” Id. § 141(b). Section 2a(a), in turn, 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 . . . by the method known as the method of equal proportions . . . .” 2 U.S.C. § 2a(a). By its terms, therefore, Section 141 calls for the Secretary to report a single set of numbers — “[t]he tabulation of total population by States” under the “decennial census” — to the President. And Section 2a, in turn, “expressly require[s] the President to use . . . the data from the ‘decennial census’” in determining apportionment. Franklin, 505 U.S. at 797. That is, once the final decennial census data is in hand, the President’s role is purely “ministerial.” Id. at 799.
Legislative history and the longstanding understanding of the Executive Branch itself confirm that the Secretary’s “tabulation,” and the President’s apportionment calculations, must be based on decennial census data alone. Significantly, the statutes first took their current form
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in 1929, after a decade-long stalemate over the method for calculating the reapportionment following the 1920 census. See id. at 791-92. Congress responded to this problem by creating an “automatic reapportionment” scheme that would be “virtually self-executing.” Id. at 792. In particular, the scheme created an “automatic connection between the census and the reapportionment”; indeed, that was “the key innovation of the Act.” Id. at 809 (Stevens, J., concurring in part and concurring in the judgment) (emphasis added). The Senate Report accompanying the bill explained in reference to the next census:
The census would be taken in November, 1929. One year later, with these figures in hand, the President would report the census figures, together with a table showing how, under these figures, the House would be apportioned . . . pursuant to a purely ministerial and mathematical formula . . . . Precisely the same process would protect reapportionment in each subsequent decennium. S. Rep. No. 71-2, at 4 (1929). Along similar lines, the House Report explained that, under the bill, “the House is reapportioned in accordance with the tabulation transmitted by the Secretary of Commerce . . . ; the tabulations transmitted to Congress are on the basis of the 1930 census . . . .” H. Rep. No. 70-2010, at 4 (1929); see also id. at 7 (explaining that the Secretary, to whom the bill also originally assigned the task of reapportionment later assigned to the President, “is left with no discretionary power. He must use absolutely, without deviation, the population of each State as gathered and reported by the Director of the Census.” (emphasis added)).13
13 Although we are wary of relying too heavily on floor statements by members of Congress, it is worth noting that Senator Vandenberg of Michigan, the principal sponsor of the bill, reaffirmed that the legislation required the President “to report the result of a census” and to apply the reapportionment formula to “the result of the census.” 71 Cong. Rec. 1613 (1929) (statement of Sen. Vandenberg). Elsewhere, he and Senator Walsh of Montana confirmed in a colloquy with Senator Swanson of Virginia “that the President is bound and has no discretion” but “to make the apportionment according to the census.” Id. at 1845 (statement of Sen. Swanson) (emphasis added).
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Similarly, its position in this litigation notwithstanding, the Department of Justice (the “Justice Department” or “DOJ”) has long adhered to the view that the President’s statement to Congress regarding apportionment has to be based solely on the tabulation of total population produced by the census. As the Justice Department explained more than forty years ago in Federation for American Immigration Reform (FAIR) v. Klutznick, “every inhabitant of a state the Census counts is included in the apportionment base. . . . The total resident population of the states is the apportionment base.” Defs.’ Reply Mem. & Opp’n at 11, 486 F. Supp. 564 (D.D.C. 1980) (No. 79-CV-3269), 1980 WL 683642, at *7 (citing H.R. Rep. No. 91-1314 (1970)).14 Along similar lines, the Government acknowledged during oral argument in Franklin v. Massachusetts that “[t]he law directs [the President] to apply, of course, a particular mathematical formula to the population figures he receives” and that “[i]t would be unlawful . . . just to say, these are the figures, they are right, but I am going to submit a different statement.” Oral Arg. Tr. at 12, Franklin v. Massachusetts, 505 U.S. 788 (No. 91-1502). “I think under the law he is supposed to base his calculation on the figures submitted by the Secretary.” Id. at 13; see also, Reply Br. Appellants, Franklin, 505 U.S. 788 (No. 91-1502), 1992 WL 672612, at *15 (Apr. 20, 1992) (“[T]he method of equal proportions calls for application of a set mathematical formula to the state population totals produced by the census.” (emphasis added)).
In short, this history confirms our reading of the statutes’ plain terms: The Secretary is required to report a single set of figures to the President — namely, “[t]he tabulation of total
14 The House Report to which DOJ cited noted unambiguously that “the enumerated decennial census population is the basis for the apportioning of [the House] among the several States.” H.R. Rep. No. 91-1314, at 3 (1970). Elsewhere, it summarized the three “elements” of the President’s statement under Section 2a(a): “(1) The population of each State as determined by the decennial census; (2) The existing total number of Representatives (435); and (3) The apportionment which results from using a mathematical method known as the method of equal proportions.” Id. at 2 (emphasis added).
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population by States” under the “decennial census” — and the President is then required to use those same figures to determine apportionment using the method of equal proportions.
The Presidential Memorandum deviates from, and thus violates, these statutory requirements. Whereas the statute calls for the Secretary to include only the census figures in his report to the President, the Presidential Memorandum mandates that the Secretary provide a second set of figures as well: namely, the population of each State “exclud[ing]” illegal aliens. Presidential Memorandum, 85 Fed. Reg. at 44,680. The Presidential Memorandum leaves it to the Secretary how to come up with those figures, but they will necessarily be derived from something other than the census itself, as the 2020 census is not gathering information concerning citizenship or immigration status, and the 2020 census itself is counting illegal aliens. See Order at 1-2, New York v. Dep’t of Commerce, 18-CV-2921 (JMF), ECF No. 653 (permanently enjoining the inclusion of a citizenship question on the 2020 census questionnaire); see also Presidential Memorandum, 85 Fed. Reg. at 44,680 (noting that “data on illegal aliens . . . relevant for the purpose of conducting the apportionment” may be available as a result of Executive Order 13880, which directed executive agencies “to share information with the Department of Commerce” regarding “the number of citizens, non-citizens, and illegal aliens in the country”). By doing so, the Presidential Memorandum violates Congress’s mandate to use the results of the census — and only the results of the census — in connection with the apportionment process and the counting of them in the census pursuant the Residence Rule.
In arguing otherwise, Defendants rely almost exclusively on the Supreme Court’s decision in Franklin, see Defs.’ Mem. 40-42; Oral Arg. Tr. 48-54, but that reliance is misplaced. In Franklin, the plaintiffs brought two discrete challenges, one a constitutional challenge to the formula used in connection with reapportionment and one a challenge under the Constitution and
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the APA to the conduct of the census — specifically, to the Census Bureau’s decision to count federal employees serving overseas as residents of the State listed as their home of record in their personnel files. See Massachusetts v. Mosbacher, 785 F. Supp. 230, 233 (D. Mass. 1992). A three-judge district court rejected the first challenge, but agreed with the second. See id. at 26768. On appeal from the latter ruling alone, the Supreme Court reversed. With respect to the plaintiffs’ constitutional claim, the Court held that the Secretary’s judgment “that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States’ representation in Congress” was “consonant with, though not dictated by, the text and history of the Constitution.” Franklin, 505 U.S. at 806. With respect to the plaintiffs’ APA claim, the Court held that the decision could not be challenged because the only final action affecting the States was the President’s Section 2a(a) statement and the President does not qualify as an “agency” for purposes of the APA. See id. at 796-801. The Secretary’s Section 141(b) report, the Court explained, “carries no direct consequences for the reapportionment” and, thus, “serves more like a tentative recommendation than a final and binding determination.” Id. at 798.
While addressing the question of whether the plaintiffs could bring a claim under the APA, the Court described the interplay between Section 2a and Section 141:
After receiving the Secretary’s report, the President is to “transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population.” 2 U.S.C. § 2a(a). Section 2a does not expressly require the President to use the data in the Secretary’s report, but, rather, the data from the “decennial census.” There is no statute forbidding amendment of the “decennial census” itself after the Secretary submits the report to the President. For potential litigants, therefore, the “decennial census” still presents a moving target, even after the Secretary reports to the President. . . . Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data are submitted to him. It is not until the President submits the information to Congress
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that the target stops moving, because only then are the States entitled by § 2a to a particular number of Representatives. 505 U.S. at 797-98. The Court acknowledged that the President’s role under Section 2a was “admittedly ministerial,” but that “d[id] not answer the question whether the apportionment is foreordained by the time the Secretary gives her report to the President.” Id. at 799. Put simply, the Court concluded, “§ 2a does not curtail the President’s authority” — pursuant to “his accustomed supervisory powers over his executive officers” — “to direct the Secretary in making policy judgments that result in ‘the decennial census’; he is not expressly required to adhere to the policy decisions reflected in the Secretary’s report.” Id. at 799-800. Defendants seize on this language to argue that the President has discretion to define who should be considered inhabitants — or “persons in each State,” 2 U.S.C. § 2a(a); see U.S. Const. Art. I § 2, cl. 3 — for purposes of the census. Presidential Memorandum, 85 Fed. Reg. at 44,679; see Defs.’ Mem. 40-42; Def. Reply 9-10; Oral Arg. Tr. 47. That may or may not be true — we address it below — but it is beside the point for present purposes. Franklin does not suggest, let alone hold, that the President has authority to use something other than the census when calculating the reapportionment; indeed, the Court did not even consider the plaintiffs’ challenge to the apportionment. At most, Franklin establishes that the President retains his “usual superintendent role” with respect to the conduct of the census — and can direct the Secretary to make “policy judgments that result in ‘the decennial census.’” Id. at 799-800 (emphasis added); see also id. at 797-98 (referring to “amendment of the ‘decennial census’ itself” and “instruction by the President to the Secretary to reform the census”).15 But by
15 Thus, defense counsel is wrong in suggesting that the Franklin Court blessed the use of a tabulation that was based on both the census and “separate records outside the census.” Oral Arg. Tr. 52. The overseas personnel were counted as part of the census itself, resulting in a single “tabulation of total population by States” under the “decennial census.” 13 U.S.C. § 141(a)-(b). That they were counted using administrative records rather than a questionnaire is
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Defendants’ own admission, that is not what the President did here. See, e.g., Joint PreConference Ltr. 5 (“Plaintiffs are not challenging some procedure that will be used in the actual census, but an apportionment number that will be chosen by the President after the census is complete.”); Defs.’ Mem. 12 (“[T]he Memorandum does not affect how the Census Bureau is conducting its remaining enumeration operations . . . .”); ECF No. 120 (Decl. of Albert E. Fontenot, Jr.) ¶ 12 (“The Presidential Memorandum . . . has had no impact on . . . the Census Bureau’s commitment to count each person in their usual place of residence, as defined in the [Residence Rule].”).
In short, contrary to Defendants’ arguments, the statutory scheme enacted by Congress does not give the President authority to “choose” any set of numbers he wants “to plug into the ‘method of equal proportions.’” Defs.’ Mem. 42. Instead, Congress mandated that the President use a specific set of numbers — those produced by the decennial census itself — for purposes of the reapportionment. By deviating from that mandate, the Presidential Memorandum exceeds the authority of the President and constitutes an ultra vires violation of the statutes. B. The Apportionment Base Cannot Exclude Illegal Aliens Who Reside in a State
The Presidential Memorandum also deviates from Section 2a(a) in defining “the whole number of persons in each State” to categorically exclude illegal aliens residing in each State. Once again, we begin with the plain language of the statute. Defendants do not dispute — in the Presidential Memorandum or in their briefs — that illegal aliens are “persons” within the meaning of Section 2a(a), and for good reason. The ordinary meaning of the word “person” is “human” or “individual” and surely includes citizens and non-citizens alike. See Plyler v.
of no moment, as Section 141(a) broadly delegates to the Secretary the authority to conduct the census “in such form . . . as he may determine.” Id. § 141(a).
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Doe, 457 U.S. 202, 210 (1982) (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”). Moreover, the U.S. Code is filled with other statutes that use terms that plainly exclude illegal aliens, such as “citizen” or “alien lawfully admitted.” E.g., 5 U.S.C. § 552a(a)(2). “Congress thus distinguishes between a ‘citizen’ and ‘any person’ when it wishes to do so.” O’Rourke v. U.S. Dep’t of Justice, 684 F. Supp. 716, 718 (D.D.C. 1988) (holding that the phrase “any person” in the Freedom of Information Act, 5 U.S.C. §§ 551 et seq., includes non-citizens); accord Stone v. Exp.-Imp. Bank of U. S., 552 F.2d 132, 136 (5th Cir. 1977); see also, e.g., Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 729 (9th Cir. 2011) (holding that “any person” in the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq., “means any person, including foreign citizens”).
Instead, Defendants hang their hats on the four-word phrase “persons in each State.” Presidential Memorandum, 85 Fed. Reg. at 44,679; see Defs.’ Mem. 2, 29-30; Defs.’ Reply 11. That phrase, they argue, has been construed to mean “inhabitants” or to turn on “usual residence,” terms that are not self-defining and call for “the exercise of judgment.” Presidential Memorandum, 85 Fed. Reg. at 44,679. That is true enough. See Franklin, 505 U.S. at 803-05 (noting that, since 1790, Congress and the Census Bureau have used words such as “inhabitant” and “[u]sual residence” to “describe the required tie to the State” and that defining the metes and bounds of these terms are not always clear). But it does not follow that illegal aliens — a category defined by legal status, not residence — can be excluded from the phrase. To the contrary, the ordinary definition of the term “inhabitant” is “one that occupies a particular place regularly, routinely, or for a period of time.” See MERRIAM-WEBSTER’S COLLEGE DICTIONARY 601 (10th ed. 1997). And however ambiguous the term may be on the margins, it surely
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encompasses illegal aliens who live in the United States — as millions of illegal aliens
indisputably do, some for many years or even decades.16
The Presidential Memorandum provides two examples to support its conclusion that
“[t]he discretion delegated to the executive branch to determine who qualifies as an ‘inhabitant’
includes authority to exclude from the apportionment base aliens who are not in a lawful
immigration status,” Presidential Memorandum, 85 Fed. Reg. at 44,679, but neither is remotely
convincing. First, the Memorandum notes that “aliens who are only temporarily in the United
States, such as for business or tourism, and certain foreign diplomatic personnel are ‘persons’
who have been excluded from the apportionment base.” Id. True enough, but that is not based
on their legal status. Instead, it is based on the fact that the United States is not their “usual
residence.” (Indeed, that is reflected in the Residence Rule.) Second, the Memorandum points
to the fact that “overseas Federal personnel have, at various times, been included in” the
apportionment base. Id. Once again, true enough. (Indeed, that was the issue in Franklin.) But
that is based on the fact that the terms “usual residence” and “inhabitant” have “been used
16 Defendants argue that it is Plaintiffs’ burden to show “that there is no category of illegal aliens that may be lawfully excluded from the apportionment,” Defs.’ Mem. 39, and suggest that Plaintiffs cannot meet that burden because some categories of illegal aliens (e.g., aliens residing in a detention facility after being arrested while crossing the border) can be lawfully excluded, see id. at 27. But the examples Defendants proffer are arguably excluded (or excludable) based on their “usual residence,” not their legal status. In any event, Defendants cite no authority for applying the standards for facial challenges to the constitutionality of statutes to claims, like those here, that the President has exceeded the authority granted to him by Congress. Indeed, that arguably gets it backwards: If the President goes outside the bounds of the authority granted to him by Congress, a court’s power to grant relief should not depend on how far outside the bounds he went. Notably, courts considering similar claims have not approached them in the manner Defendants propose. See, e.g., Hawaii v. Trump, 878 F.3d 662, 690-92 (9th Cir. 2017) (concluding that a presidential proclamation exceeded the President’s delegated authority under the Immigration and Nationality Act), rev’d and remanded on other grounds, 138 S. Ct. 2392 (2018); Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1324, 1337-39 (D.C. Cir. 1996) (concluding that an executive order announcing a “policy of the executive branch” was ultra vires and invalid).
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broadly enough to include some element of allegiance or enduring tie to a place” and to “include ‘persons absent occasionally for a considerable time on public or private business.’” Franklin, 505 U.S. at 804-05 (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 217 (Max Farrand ed., rev. ed. 1966) (statement of James Madison)). It is simply a non sequitur to suggest, as the Presidential Memorandum does, that just because the phrase “persons in each State” can be construed to include people who are “temporarily stationed abroad” but “retain[] their ties to the States,” id. at 806, it can also be construed to exclude people who indisputably inhabit or reside in a State.
Defendants are on no firmer ground in arguing that illegal aliens can be excluded from “the whole number of persons in each State,” as that phrase is used in Section 2a, because they “may be removed from the country at any time.” Defs.’ Mem. 39. A person living in a State but facing future removal is no less a “person[] in that State,” Defs.’ Reply 4 (internal quotation marks and alteration omitted), than someone living in the State without the prospect of removal. Moreover, many people in immigration custody or removal proceedings actually have lawful immigration status, see, e.g., Ragbir v. Homan, 923 F.3d 53, 57-58 (2d Cir. 2019), and their placement in custody or removal proceedings does not necessarily render them unlawfully present. Notably, data reveal that immigration judges ultimately allow many aliens in custody or removal proceedings to remain in the United States. See Immigration Judges Decide 57 Percent Entitled to Remain in U.S., TRAC IMMIGRATION (Aug. 17, 2016), https://trac.syr.edu/ immigration/reports/435/. And many people initially designated as “undocumented” — including many intercepted at the border — ultimately obtain lawful status, such as asylum. See EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEP’T OF JUSTICE, STATISTICS YEARBOOK FISCAL
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YEAR 2018, at 27 (2019), https://www.justice.gov/eoir/file/1198896/download. Nothing in Section 2a turns on such fluctuations and nuances in legal status.
Once again, legislative history and settled practice confirm our conclusion that “persons in each State” turns solely on residency, without regard for legal status. In looking to legislative history, we look not to the history surrounding the framing of the Constitution or the Reconstruction Amendments, even though the words in the statute mirror those in Article I and the Fourteenth Amendment. Instead, we look to 1929, when Section 2a was enacted and the words “whole number of persons in each State” entered the statutory lexicon. See Act of June 18, 1929, Pub. L. No. 71-13 § 22, 46 Stat. 21, 26. That is because our task is to interpret the statute itself, and we do so “in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1738 (2020). That is not to say that the constitutional language is irrelevant to our task: The drafters of Section 2a used the same words as those in the Constitution, so their understanding of the constitutional language sheds light on their understanding — and the “ordinary public meaning” — of the statutory text “at the time of its enactment.” Id. But it is their understanding of the constitutional language, not whether their understanding was correct (on which we need and do not opine), that matters. Cf. Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (“It is a commonplace of statutory interpretation that Congress legislates against the backdrop of existing law.” (internal quotation marks omitted)).17
17 For this reason, we need not and do not delve into the meaning of the terms “inhabitant” and “usual residence” at the time of the Founding or of the Reconstruction Amendments, or consider whether the concept of unlawful status was known to the Framers of Article I or the Fourteenth Amendment. There is no dispute that the concept of “illegal aliens” existed in 1929, when Section 2a was enacted. See Defs.’ Mem. 36.
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Notably, in enacting the 1929 Act that used the phrase “whole number of persons in each State,” the Senate and the House both considered and rejected amendments that would have excluded non-citizens from the apportionment base. See 71 Cong. Rec. 1907 (1929) (Sen. Sackett proposes amending S.B. 312 to require the President’s statement to Congress to show “the whole number of persons in each State, exclusive of aliens and excluding Indians not taxed”); id. at 2065 (vote on amendment by Sen. Sackett fails); id. at 2360-63 (House adopts alienage exclusion as amendment to the apportionment bill); id. at 2448-2455 (House adopts amendment of Rep. Tilson to remove the previously adopted alienage exclusion). What is more, opposition to these amendments was based not only on a view that “the whole number of persons in each State” should include every resident of each State, without regard to legal status; it was based also on a view that the Constitution mandated inclusion of illegal aliens residing in the United States. Senator David Reed, for instance, voiced support for an amendment excluding illegal aliens from the apportionment base as a matter of policy but opposed it on grounds of constitutionality and consistent practice. “Every Congress that acted on that part of Article I of the original Constitution and every apportionment that was made in reliance upon that article,” he explained, “included all free persons literally. It excluded Indians not taxed and it excluded slaves, but every apportionment inhabitant[] who” was not a “citizen[] w[as] included.” Id. at 1958. “That construction,” he noted then, “has been continuous and consistent.” Id.
Further evidence of the understanding of the phrase “whole number of persons in each State” in Section 2a is revealed by the opinion of the Senate’s legislative counsel on the issue. “That the fourteenth amendment was framed with the intention of including aliens,” he wrote, “is indicated by the rejection by the Congress of proposals to base representation on the number of
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citizens and on the number of voters.” Id. at 1822. Consistent with that understanding, Congress
had always included aliens in the apportionment base:
The practical construction of the constitutional provision by Congress in its apportionment legislation has been uniformly in favor of inclusion of aliens. No exception of noncitizens from the enumeration has been made under any past apportionment. The term “persons” necessarily either includes or excludes aliens; its constitutional meaning can not be changed by Congress; and the fact that it has from the beginning been construed to include aliens should be conclusive if the meaning was open to dispute. Id. It was “therefore the opinion of [the legislative counsel’s] office that there is no
constitutional authority for the enactment of legislation excluding aliens from enumeration for
the purposes of apportionment of Representatives among the States.” Id. This prevailing view
makes plain that when Congress directed the President to report the “whole number of persons in
each State,” it understood the phrase to include all who lived in each State, without regard for
legal status, and that it did not grant to the President discretion to do by Memorandum what it could not do by statute.18
Not for nothing, until the Presidential Memorandum, the Executive Branch had also
always taken the view that the 1929 Act, if not the Constitution, prohibited exclusion of illegal
aliens from the apportionment base due to legal status alone. In defending against a 1980
challenge to including illegal aliens in the apportionment base, for example, the Department of
Justice argued that “[t]he plain language of [the Act] maintains the Constitutional requirement of
counting all inhabitants of the states, legal and illegal, for purposes of apportionment. . . .
18 For what it’s worth, later Congresses took similar views. See FAIR v. Klutznick, 486 F. Supp. at 576-77 (three-judge court) (describing congressional debates); Stacy Robyn Harold, Note, The Right to Representation and the Census, 53 WAYNE L. REV. 921, 923 & n.15 (2007) (collecting congressional debates); see also, e.g., 1980 Census: Counting Illegal Aliens: Hearing on S. 2366 Before the Subcomm. on Energy, Nuclear Proliferation & Fed. Servs. of the S. Comm. on Governmental Affairs, 96th Cong. 12 (1980) (Senator Javits stating that the Constitution requires “the aggregate number of inhabitants, which includes aliens, legal and illegal”).
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Moreover, the long-established practice of both Congress and the Census Bureau of reading the Constitution to require the counting of illegal aliens for apportionment purposes ratifies this construction.” Defs.’ Reply Mem. & Opp. Pls.’ Mot. Summ. J. 11, FAIR, 486 F. Supp. 564 (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-82 (1967)). In 1988, the Justice Department took the position in a letter to Congress that excluding illegal aliens from the census and apportionment base would be unconstitutional, see Letter from Thomas M. Boyd, Acting Assistant Attorney Gen., to Rep. William D. Ford (June 29, 1988) (reprinted in U.S. GOV’T PRINTING OFFICE, 1990 CENSUS PROCEDURES AND DEMOGRAPHIC IMPACT ON THE STATE OF MICHIGAN, 240-44 (1988)), a position it reaffirmed one year later, see Letter from Carol T. Crawford, Assistant Attorney Gen., to Sen. Jeff Bingaman (Sept. 22, 1989) (reprinted in 135 Cong. Rec. S22,521 (daily ed. Sept. 29, 1989)). And the Census Bureau itself has long “interpreted its constitutional charge and its statutory mandate to require counting every person [irrespective of citizenship status] who has a usual residence in any State.” Census Equity Act: Hearing on H.R. 2661 Before the Subcomm. on Census & Population of the H. Comm. on Post Office & Civil Serv., 101st Cong. 68 (1989) (statement of Michael R. Darby, Under Sec’y of Commerce for Econ. Affairs) (emphasis added); accord Letter from Robert A. Mosbacher, Sec’y of Commerce, to Sen. Jeff Bingaman (Sept. 25, 1989) (reprinted in 135 Cong. Rec. S22,522 (daily ed. Sept. 29, 1989)).
In fact, since 1929 (if not before), the consistent view of both political branches has been that Section 2a, if not the Constitution, requires the inclusion of all residents in the apportionment base, without regard for their legal status. When pressed at oral argument to cite “any instance, any support . . . in the historical record” for the proposition that the President has discretion under Section 2a to exclude illegal aliens from the apportionment base, defense
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counsel came up empty. Oral Arg. Tr. 46 (“We have not been able to identify any.”). With admirable candor, albeit some understatement, he was compelled to concede that “[P]laintiffs’ best argument is history, and that cuts the other way.” Id. at 47.
With neither text nor history on their side, the only thing Defendants have remaining is their assertion that excluding illegal aliens from the apportionment base is “more consonant with the principles of representative democracy underpinning our system of Government.” Presidential Memorandum, 85 Fed. Reg. at 44,680. That is certainly a defensible (though contestable) proposition. But it is also irrelevant. The Constitution gives to Congress the authority to regulate the census and to reapportion the House. In exercising that authority, and delegating responsibility to the Executive Branch, Congress adopted a different theory of Government, in which the House of Representatives represents the whole population, not a subset of the population, and there is “equal representation for equal numbers of people.” Wesberry v. Sanders, 376 U.S. 1, 14 (1964). The President is not free to substitute his own view of what is most “consonant with the principles of representative democracy” for the view that Congress already chose.
The statutory command to use the “whole number of persons in each State” as the apportionment base does not give the President discretion to exclude illegal aliens on the basis of their legal status, without regard for their residency. In declaring that “it is the policy of the United States” to do so, and commanding the Secretary to take steps to carry out that policy, the Presidential Memorandum deviates from, and thus violates, Section 2a. C. Conclusion
In sum, the Presidential Memorandum deviates from, and thus violates, the statutory scheme in two independent ways: first, by requiring the Secretary to include in his Section
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141(b) report a set of numbers other than “[t]he tabulation of total population by States” under the “decennial census” and contemplating reapportionment based on a set of numbers other than “the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population”; and second, by excluding illegal aliens from the “whole number of persons in each State” that Section 2a(a) requires to be used as the apportionment base.
As Defendants implicitly concede, it follows that Plaintiffs are entitled to summary judgment on their statutory claims pursuant to the ultra vires doctrine, a cause of action that “is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). The doctrine provides that “[w]hen an executive acts ultra vires,” as is the case here, “courts are normally available to reestablish the limits on his authority.” Reich, 74 F.3d at 1328; see also Stark v. Wickard, 321 U.S. 288, 309-10 (1944) (“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. . . . The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.”); Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902) (“The acts of all [executive branch] officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief.”); Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) (“Courts remain obligated to determine whether statutory restrictions have been violated.”). In light of that conclusion, we need not and do not reach Plaintiffs’ constitutional claims, let alone the Plaintiffs’ claims that did not form the basis
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for their motion. Thus, Defendants’ motion to dismiss those claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure is moot.
REMEDIES Having granted Plaintiffs summary judgment on their statutory claims, we turn to the issue of remedies. Plaintiffs seek a permanent injunction prohibiting all Defendants — including the President himself — from implementing the Presidential Memorandum and a declaratory judgment that the Presidential Memorandum is unlawful. See Gov’t Pls.’ Compl. 44-45; NGO Pls.’ Compl. 88-89. A. Injunctive Relief It is well established that plaintiffs “seeking a permanent injunction must satisfy a fourfactor test before a court may grant such relief.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Specifically, they must show: (1) that they have suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiffs and defendants, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. See id. But because “the government’s interest is the public interest,” where, as here, the government is a party, the last two factors merge. Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016); accord Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs easily satisfy each factor and, thus, are entitled to an injunction. First and foremost, as discussed above, the census-related harms that Plaintiffs have demonstrated would be irreparable absent an injunction. That is, because there are no census do-overs, there would be no way to remedy them after the fact. And even if there were a way to correct for them after the fact, the harms, by their nature, are difficult, if not impossible, to measure. See, e.g., Salinger
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v. Colting, 607 F.3d 68, 81 (2d Cir. 2010) (“Harm might be irremediable, or irreparable, for many reasons, including that a loss is difficult to replace or difficult to measure . . . .”). Making matters worse, the harms caused by an inaccurate census would be felt for at least a decade, until the 2030 decennial census — if not longer. See, e.g., Baldwin Decl. ¶ 25 (explaining that because the State of Washington relies on thirty-year population forecasts, which requires “an indicator that goes back in time as far as you are forecasting forward in time,” the “2020 census data will be used in forecasting until at least the 2050 census data is available, and probably longer”). For much the same reason, the remedies available at law would plainly be inadequate. See, e.g., New York v. Dep’t of Commerce, 351 F. Supp. 3d at 675 (issuing an injunction and finding that “the degradation of information . . . would be irreparable, without any adequate remedy at law”).
Finally, the balance of the hardships and the public interest both favor an injunction. Indeed, “[t]here is generally no public interest in the perpetuation of unlawful agency action. To the contrary, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks and citation omitted). Moreover, both the Supreme Court’s decision in Department of Commerce v. House of Representatives — affirming the Eastern District of Virginia’s permanent injunction against the use of statistical sampling to enumerate the population in the 2000 census — and the Second Circuit’s holding in Carey — affirming a preliminary injunction requiring the Census Bureau to process certain forms and to compare its list of New York City residents against other government records — confirm that the public interest favors an injunction in these cases. See House of Representatives, 525 U.S. at 344; Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980).
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As the Second Circuit noted in Carey, “the public interest . . . requires obedience . . . to the
requirement that Congress be fairly apportioned, based on accurate census figures. Furthermore,
it is in the public interest that the federal government distribute its funds, when the grant statute
is keyed to population, on the basis of accurate census data.” Id.
Defendants’ sole claim of hardship is that an injunction would “interfere with the
Bureau’s ongoing process by hindering agency efforts to refine its policies and to apply its expertise.” Defs.’ Reply 2 (internal quotation marks and alterations omitted).19 They do not
elaborate further, but it is plain that they are not referring to the operations of the census itself
because, as noted above, they repeatedly concede that the Presidential Memorandum does “not in
any way affect the conduct of the actual census.” Id. Thus, Defendants must be referring to the
Census Bureau’s ongoing efforts to figure out how, if at all, to implement the President’s
directive in the Presidential Memorandum in time to meet the statutory deadline for the
Secretary’s report to the President. See 13 U.S.C. § 141(b). But it is against the public interest
to comply with an unlawful directive. And any suggestion that, in the event our decision is
reversed on appeal, granting an injunction would hinder the Census Bureau’s efforts to comply
with the Presidential Memorandum by the deadline are undermined by Defendants’ repeated
19 Referencing a point they made in passing in a footnote in their opening brief, Defendants also argue for the first time in their reply that an injunction prohibiting the Secretary from transmitting information would violate the Opinions Clause of the Constitution, see Defs.’ Reply 11 (citing Defs.’ Mem. 42 n.17), which empowers the President to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,” U.S. Const. art. 2, § 2, cl. 1. A party may not raise an argument in a footnote or for the first time in reply, so we deem the argument to be waived. See, e.g., Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived . . . .”); Levine v. Lawrence, No. 03-CV-1694 (DRH) (ETB), 2005 WL 1412143, at *5 (E.D.N.Y. June 15, 2005) (“[F]ailure to adequately brief an argument constitutes waiver of that argument . . . .”). In any event, ensuring that the Secretary complies with the mandates of Section 141(b) — and, by extension, that the President complies with the mandates of Section 2a(a) — does not run afoul of the Opinions Clause.
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assertions that “an erroneous or invalid apportionment number can be remedied after the fact.” Defs.’ Mem. 48. Finally, any such hardship to Defendants can be mitigated, if not eliminated, by crafting the injunction — as we do below — to bar only the inclusion in the Secretary’s Section 141 report of data concerning the number of illegal aliens in each State and to allow the Census Bureau to continue its research efforts.
Thus, a permanent injunction is warranted. In an exercise of our discretion, however, we grant injunctive relief against all Defendants other than the President. The parties vigorously dispute whether and under what circumstances a federal court can grant injunctive relief against the President. Compare Defs.’ Mem. 44-45, and Defs.’ Reply 14-15, with Pls.’ Reply 27 & n.13. At a minimum, however, it is plain that the “grant of injunctive relief against the President himself is extraordinary, and should . . . raise[] judicial eyebrows.” Franklin, 505 U.S. at 802. Thus, “[a]s a matter of comity,” if nothing else, “courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.” Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc) (per curiam). That is particularly true where the court can grant complete relief without enjoining the President, as is the case here. See, e.g., Franklin, 505 U.S. at 802 (“[W]e need not decide whether injunctive relief against the President [i]s appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone.”); accord Evans, 536 U.S. at 463-64. In fact, if anything, the need to enjoin the President himself is even weaker here than it was in Franklin and Evans, which were litigated after the President had transmitted his apportionment statement to Congress. For the plaintiffs in those cases to obtain meaningful relief, therefore, the President himself would have needed to calculate a new apportionment figure and to then submit a new report to Congress. Here, by contrast, enjoining Defendants
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other than the President (and granting a declaratory judgment, as discussed below) would provide Plaintiffs with complete relief, as the President cannot exclude illegal aliens from his apportionment calculations in his statement to Congress unless the Secretary gives him the relevant information in the Section 141 report.
Accordingly, 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
20 Separately, there is an active debate over the propriety of “nationwide” or “universal” injunctions. See, e.g., Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600-01 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, 138 S. Ct. 2392, 2425-29 (2018) (Thomas, J., concurring); see also Memorandum from the Attorney General to Heads of Civil Litigating Components & United States Attorneys, U.S. Dep’t of Justice, Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions (Sept. 13, 2018), https://www.justice.gov/ opa/press-release/file/1093881/download. That debate has no relevance to this case, for many of the same reasons that it had no relevance in the citizenship question litigation. See New York v. Dep’t of Commerce, 351 F. Supp. 3d at 677-78. Not surprisingly, therefore, Defendants do not even raise the issue.
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with our ruling (prior to the Section 141(b) deadline), the Secretary will be able to comply with the Presidential Memorandum in a timely fashion. B. Declaratory Relief
In addition, we grant Plaintiffs’ request for declaratory relief. The Declaratory Judgment Act vests federal courts with discretion to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a); see Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995). In exercising that discretion, courts must consider (1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; (2) whether a judgment would finalize the controversy and offer relief from uncertainty; (3) whether the proposed remedy is being used merely for procedural fencing or a race to res judicata; (4) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (5) whether there is a better or more effective remedy. Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003). “The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate,” Fed. R. Civ. P. 57, and we may grant declaratory relief “whether or not further relief is or could be sought,” 28 U.S.C. § 2201(a); see also Powell v. McCormack, 395 U.S. 486, 518 (1969) (“[A] request for declaratory relief may be considered independently of whether other forms of relief are appropriate.”).
In our view, a declaration that the Presidential Memorandum is unlawful “would serve a useful purpose here, settle the legal issues involved, finalize the controversy, and offer [Plaintiffs] relief from uncertainty.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 105 (2d Cir. 2012). Indeed, an unambiguous declaration
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that the Presidential Memorandum is unlawful because the President does not have the authority to exclude illegal aliens from the apportionment base would serve the further useful purpose of “reasurr[ing] people they will be counted for the purpose of determining . . . congressional seats and electoral votes,” Espinosa Supp. Decl. ¶ 8, thereby directly addressing the chilling effect on census participation that the Memorandum has caused. Cf. Foretich v. United States, 351 F.3d 1198, 1215 (D.C. Cir. 2003) (“[A] declaration will remove the imprimatur of government authority from [the illegal a]ct . . . .”). Such a declaration is particularly useful given that, for the reasons we discussed above, we decline to enjoin Defendants from taking steps to research whether or how the Presidential Memorandum could be implemented. That is, an unambiguous judicial declaration that the Presidential Memorandum is unlawful would help ensure that the chilling effects on participation in the census are mitigated to the maximum extent possible.
CONCLUSION There is no dispute that the President has “accustomed supervisory powers over his executive officers,” Franklin, 505 U.S. at 800, and thus retains some discretion in the conduct of the decennial census and resulting apportionment calculation. Nevertheless, where the authority of the President (or other members of the Executive Branch) to act is derived from statutes passed by Congress, the President must act in accordance with, and within the boundaries of, the authority that Congress has granted. For the reasons discussed above, we conclude that the President did not do so here and that 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. Accordingly, Plaintiffs’ motion for summary judgment with respect to their statutory ultra vires claims is
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GRANTED, Defendants (other than the President) are ENJOINED as set forth above, and the Presidential Memorandum is DECLARED unlawful. We need not and do not reach the merits of Plaintiffs’ other claims and need not address their request, in the alternative, for a preliminary injunction. Finally, Defendants’ motion to dismiss for lack of jurisdiction is DENIED and their motion to dismiss for failure to state a claim is DENIED as moot.21
The Clerk of Court is directed to terminate ECF Nos. 74 and 117 and to close this case. SO ORDERED.

Dated: September 10, 2020 New York, New York

_______________/s/_________________ RICHARD C. WESLEY
United States Circuit Judge
_______________/s/_________________ PETER W. HALL
United States Circuit Judge
_______________/s/_________________ JESSE M. FURMAN
United States District Judge

21 We believe that this matter was properly heard by a three-judge panel for the reasons set forth in Judge Furman’s request to then-Chief Judge Katzmann for the appointment of such a panel. See ECF No. 68. Nevertheless, mindful that the issue is not clear-cut and that the Second Circuit has determined that it is jurisdictional, see Kalson v. Paterson, 542 F.3d 281, 286-87 (2d Cir. 2008), we follow the lead of prior three-judge panels by certifying that Judge Furman, to whom these cases were originally assigned, individually arrived at the same conclusions that we have reached collectively. See Swift & Co. v. Wickham, 382 U.S. 111, 114 n.4 (1965) (noting with approval that “[t]his procedure for minimizing prejudice to litigants when the jurisdiction of a three-judge court is unclear has been used before” (citing Query v. United States, 316 U.S. 486 (1942))); FAIR v. Klutznick, 486 F. Supp. at 578 (three-judge court) (“District Judge Gasch additionally certifies that he individually arrived at the same conclusion that we collectively reached . . . out of abundant caution, so that in the event we are mistaken, an appeal can still be expeditiously taken in the appropriate forum.” (internal quotation marks and citation omitted)); cf. Massachusetts v. Mosbacher, 785 F. Supp. 230, 238 n.6 (D. Mass.) (three-judge court) (“Because the author of this opinion is the single district judge to whom this case was initially assigned, this opinion stands as certification that the author has individually arrived at the conclusions expressed collectively in the opinion and the judgment of this three-judge court.”), rev’d on other grounds sub nom. Franklin v. Massachusetts, 505 U.S. 788 (1992).
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 Case 1:20-cv-05770-JMF Document 165 Filed 09/10/20 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------- X

:

STATE OF NEW YORK, et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

DONALD J. TRUMP, in his official capacity as

:

President of the United States, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

:

NEW YORK IMMIGRANT COALITION, et al.,

:

:

Plaintiffs,

:

:

-v-

:

:

DONALD J. TRUMP, in his official capacity as

:

President of the United States, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

20-CV-5770 (RCW) (PWH) (JMF)
20-CV-5770 (RCW) (PWH) (JMF) (Consolidated)
FINAL JUDGMENT AND PERMANENT INJUNCTION

Before:

RICHARD C. WESLEY, United States Circuit Judge PETER W. HALL, United States Circuit Judge JESSE M. FURMAN, United States District Judge

Pursuant to the Court’s Opinion and Order of September 10, 2020, it is ORDERED, ADJUDGED, and DECREED as follows:

FINAL JUDGMENT

Final judgment is entered for Plaintiffs and against Defendants on Plaintiffs’ claims arising from an ultra vires violation of 2 U.S.C. § 2a and 13 U.S.C. § 141 (namely, the Fifth Claim for Relief in the Governmental Plaintiffs’ Amended Complaint and Count Two in the NGO Plaintiffs’ Amended Complaint).

Case 1:20-cv-05770-JMF Document 165 Filed 09/10/20 Page 2 of 2

DECLARATION AND PERMANENT INJUNCTION

The July 21, 2020 Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census (the “Presidential Memorandum”), announcing that it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status, is DECLARED unlawful as an ultra vires violation of Congress’s delegation of authority to conduct the decennial census and apportionment calculation pursuant to 2 U.S.C. § 2a and 13 U.S.C. § 141.

The Secretary of Commerce in his official capacity, the Director of the Census Bureau in his official capacity, the U.S. Department of Commerce, and the U.S. Census Bureau, and any successors to those offices, together with their agents, servants, employees, attorneys, and other persons who are in active concert or participation with the foregoing, see Fed. R. Civ. P. 65(d)(2), are PERMANENTLY ENJOINED 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.

SO ORDERED.

Dated: September 10, 2020 New York, New York

_______________/s/_________________ RICHARD C. WESLEY
United States Circuit Judge

_______________/s/_________________ PETER W. HALL
United States Circuit Judge

_______________/s/_________________ JESSE M. FURMAN
United States District Judge

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 Case 1:20-cv-05770-JMF Document 180 Filed 09/29/20 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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STATE OF NEW YORK, et al.,

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Plaintiffs,

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DONALD J. TRUMP, in his official capacity as

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President of the United States, et al.,

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Defendants.

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20-CV-5770 (RCW) (PWH) (JMF) OPINION AND ORDER

Before:

RICHARD C. WESLEY, United States Circuit Judge PETER W. HALL, United States Circuit Judge JESSE M. FURMAN, United States District Judge

PER CURIAM. On July 21, 2020, the President of the United States issued a Memorandum declaring
that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census” — which is still ongoing — “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census § 2, 85 Fed. Reg. 44,679, 44,680 (July 23, 2020) (ECF No. 1-1) (the “Presidential Memorandum”). Within days, Plaintiffs filed these consolidated cases, familiarity with which is assumed, alleging that the Presidential Memorandum violates the Constitution, statutes governing the census and apportionment, and other laws. In an Opinion and Order entered September 10, 2020, we granted summary judgment to Plaintiffs on the ground that the Presidential Memorandum constituted an “ultra vires violation of Congress’s delegation of its constitutional responsibility to count the whole

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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.” New York v. Trump, — F. Supp. 3d —, No. 20-CV-5770 (RCW) (PWH) (JMF), 2020 WL 5422959, at *36 (S.D.N.Y. Sept. 10, 2020) (ECF No. 164); see ECF No. 165 (“Judgment”). We declared the Presidential Memorandum to be unlawful. And we also entered an injunction barring the Secretary of Commerce (the “Secretary”) and other Defendants from “including in the Secretary’s report to the President pursuant to Section 141(b) [of the Census Act] . . . any information concerning the number of aliens in each State who are not in a lawful immigration status under the Immigration and Nationality Act.” New York, 2020 WL 5422959, at *35 (internal quotation marks and citation omitted). We confirmed, however, that Defendants were “not enjoin[ed] . . . from continuing to study whether and how it would be feasible to calculate the number of illegal aliens in each State.” Id.
On September 16, 2020, Defendants filed a notice of appeal of our judgment to the Supreme Court and, the same day, moved for a stay of judgment pending appeal. See ECF Nos. 170-71; see also ECF No. 172 (“Defs.’ Mem.”). Plaintiffs filed their opposition on September 23. See ECF No. 176. Upon review of the parties’ submissions, and for the reasons that follow, we DENY Defendants’ motion as meritless.
LEGAL STANDARD In deciding whether to issue a stay pending appeal, a court must consider four factors: (1) whether the movant has “made a strong showing” that it “is likely to succeed on the merits”; (2) whether the movant “will be irreparably injured absent a stay”; (3) whether a stay “will substantially injure the other parties interested in the proceeding”; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). The first two factors — the likelihood
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of success and irreparable harm — “are the most critical,” id., and “have typically been evaluated on a sliding scale, so that a strong showing that the applicant is likely to succeed excuses a weaker showing of irreparable injury,” Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 884 F. Supp. 2d 108, 122 (S.D.N.Y. 2012); accord Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006). Nevertheless, as the Supreme Court has emphasized (in the parallel context of issuing a preliminary injunction), “the applicant must demonstrate that both factors are satisfied, so that even if a party makes a robust showing that it is likely to succeed on appeal, it must also show that ‘irreparable injury is likely.’” Nat. Res. Def. Council, 884 F. Supp. 2d at 122 & n.12 (emphasis added) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). Notably, “[a] stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case.” Nken, 556 U.S. at 433 (internal quotation marks and citations omitted). Ultimately, the party or parties seeking the stay bear “the heavy burden of demonstrating that a stay is warranted.” U.S. Commodity Futures Trading Comm’n v. eFloorTrade, LLC, No. 16-CV-7544 (PGG), 2020 WL 2216660, at *2 (S.D.N.Y. May 7, 2020) (internal quotation marks omitted); accord Nken, 556 U.S. at 433-44. Defendants fall well short of carrying their burden. In fact, they satisfy none of the four factors relevant to the analysis.
IRREPARABLE HARM First and foremost, Defendants fail to show that they will suffer any irreparable injury absent a stay. In fact, they do not even purport to make the necessary showing. They say only that they “may suffer irreparable injury without a stay of the judgment.” Defs.’ Mem. 6 (emphasis added) (capitalization altered). But that is not the relevant standard. See Nken, 556 U.S. at 434 (“will be irreparably injured” (emphasis added)); see also, e.g., Rubin v. United
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States, 524 U.S. 1301, 1301 (1998) (Rehnquist, C.J., in chambers) (“An applicant for stay first must show irreparable harm if a stay is denied.” (emphasis added)).
By itself, that failure is enough to deny Defendants’ motion. But even if Defendants were correct about the applicable standard, their arguments about irreparable harm are frivolous. First, by their own admission, our injunction will not “actually constrain[] Defendants’ actions” until at least December 31, 2020 — the statutory deadline for the Secretary’s Section 141(b) report. Defs.’ Mem. 3.1 At a minimum, therefore, Defendants would have to show that they could not obtain appellate relief by that date. Yet they make no such showing.2
Even if Defendants could not obtain appellate relief by the statutory deadline for the Section 141(b) report, their own prior representations and arguments make plain that they would not face any harm, let alone irreparable harm, absent a stay. Defendants have repeatedly maintained (in service of their arguments that resolution of these cases was not urgent and that Plaintiffs could not show apportionment-based irreparable harm) that “an erroneous or invalid apportionment number can be remedied after the fact.” ECF No. 118 (“Defs.’ Original Mem.”), at 48 (emphasis added); see also ECF No. 79 (“Aug. 5, 2020 Tr.”), at 16 (“[T]he case could be decided after the president submits the numbers to Congress.”); Defs.’ Original Mem. 9-10 (“[Plaintiffs’] challenge should await the actual apportionment . . . .”); ECF No. 154 (“Defs.’

1

Due to events since Defendants’ motion, the injunction may not constrain Defendants’

actions until later. On September 24, 2020, the United States District Court for the Northern

District of California granted a preliminary injunction staying the “U.S. Census

Bureau’s . . . September 30, 2020 deadline for the completion of data collection and December 31,

2020 deadline for reporting the tabulation of total population to the President” and enjoining the

Secretary, the Department of Commerce, the Director of the U.S. Census Bureau, and the U.S. Census Bureau “from implementing these two deadlines.” Nat’l Urban League v. Ross, — F.

Supp. 3d —, No. 5:20-CV-5799 (LHK), 2020 WL 5739144, at *48 (N.D. Cal. Sept. 24, 2020).

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Notably, we entered final judgment only 48 days after these lawsuits were filed (and 51

days after the Presidential Memorandum was issued), at which time there were 112 days

remaining until the statutory deadline.

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Original Reply”), at 2 (“[A]pportionment challenges have historically been decided postapportionment without spurring the ‘chaos’ that Plaintiffs allege (without factual support) will occur here if the Court waits.”). “[T]here is no need,” they asserted, “to resolve this lawsuit before the submission of the enumeration numbers to the President” — so long as it was resolved in time for “the 2022 elections.” ECF No. 37 (“Joint Pre-Conf. Ltr.”), at 5 (emphasis added).
That position is surely correct, see, e.g., Utah v. Evans, 536 U.S. 452, 462 (2002); Franklin v. Massachusetts, 505 U.S. 788, 803 (1992), and, regardless, is binding on Defendants here, see, e.g., New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (“Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position . . . .” (brackets and internal quotation marks omitted)). And it is fatal to any claim of irreparable harm. As Defendants admit, there is no magic to the deadline for the Secretary’s Section 141(b) report; in the event Defendants obtain appellate relief thereafter, they can implement the Presidential Memorandum.
LIKELIHOOD OF SUCCESS ON THE MERITS Defendants also fail to make a showing, let alone a “strong showing,” that they are “likely to succeed on the merits.” Nken, 556 U.S. at 434. Defendants make three arguments: (1) that, in holding that “the Presidential Memorandum violates Congress’s mandate to use the results of the census — and only the results of the census — in connection with the apportionment process,” New York, 2020 WL 5422959, at *27, we failed to consider that Franklin approved the use of “administrative records when conducting the enumeration,” Defs.’ Mem. 4-5; (2) that, in holding that “[t]he statutory command to use the ‘whole number of persons in each State’ as the apportionment base does not give the President discretion to
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exclude illegal aliens on the basis of their legal status, without regard for their residency,” New York, 2020 WL 5422959, at *32, we “mistakenly suggested that the meaning of 2 U.S.C. § 2a is different from the substantive standard under the Constitution,” and that the Constitution leaves room for the President to exclude illegal aliens from the “whole number of persons in each State,” Defs.’ Mem. 5-6 (citation omitted); and (3) that there is “a mismatch between the asserted injury on which the Court relied (the chilling effect [on the census count]) and the relief that it ordered (an injunction of conduct after census field operations end),” id. at 3.
We will address each argument in turn. A. Apportionment Must Be Based on the Results of the Census Alone
Defendants’ first argument rests on either a mischaracterization or a serious misunderstanding of our Opinion and Order, as well as additional disregard of their own prior concessions. We did not overlook that the census count in Franklin was based in part on administrative records, let alone suggest that the Secretary, in exercising his discretion with respect to the census under Section 141(a), could not use administrative records “to subtract people” in reaching a final census count even though they were enumerated. Defs.’ Mem. 5 (emphasis omitted). To the contrary, we explicitly acknowledged Defendants’ argument that the overseas personnel at issue in Franklin “were counted using administrative records rather than a questionnaire” and explained that that fact “was of no moment” because there, unlike here, “[t]he overseas personnel were counted as part of the census itself, resulting in a single ‘tabulation of total population by States’ under the ‘decennial census.’” New York, 2020 WL 5422959, at *28 n.15 (quoting 13 U.S.C. §§ 141(a)-(b)).
The Secretary might have discretion under the Census Act to use administrative records as a method of not counting people in the census. But for whatever strategic reason, that is not
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what the Presidential Memorandum does. Instead, the Presidential Memorandum directs the Secretary to report “[t]he tabulation of total population by States” under the previously adopted “Residence Rule” that governs the “decennial census” and a second set of numbers based on something other than the census.3 Indeed, during this litigation, Defendants themselves repeatedly admitted as much. See, e.g., Joint Pre-Conf. Ltr. 5 (“Plaintiffs are not challenging some procedure that will be used in the actual census, but an apportionment number that will be chosen by the President after the census is complete.”).4 They cannot now — or on appeal — retreat from those admissions. And for the reasons we have already explained, those admissions render the Presidential Memorandum an ultra vires violation of the statutes governing the census and apportionment. See New York, 2020 WL 5422959, at *25-29. B. The Apportionment Base Must Include Illegal Aliens Who Reside in a State
Defendants’ second claim — that we erred in finding that illegal aliens who reside in the United States qualify as “persons in” a “State” under Section 2a — fares no better. For one thing, the argument assumes that Defendants have the better of the constitutional argument — that the same language in the Constitution might carry a different meaning. Although we did not

3

See Presidential Memorandum, 85 Fed. Reg. at 44,679 (titled “Excluding Illegal Aliens

From the Apportionment Base Following the 2020 Census” (emphasis added); id. at 44,680 § 3

(requiring the Secretary “to provide information permitting the President, to the extent

practicable, to exercise the President’s discretion to carry out the policy set forth in section 2 of

this memorandum. The Secretary shall also include in that report information tabulated

according to the methodology set forth in Final 2020 Census Residence Criteria and Residence

Situations, 83 [Fed. Reg.] 5525 (Feb. 8, 2018).” (emphasis added)).

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See also, e.g., ECF No. 120 ¶ 12 (“The Presidential Memorandum . . . has had no impact

on . . . the Census Bureau’s commitment to count each person in their usual place of residence,

as defined in the [Residence Rule].”); ECF No. 118, at 4 (“The Presidential Memorandum directs

the Secretary of Commerce to submit to the President two tabulations.”); id. at 12 (“[T]he

Memorandum does not affect how the Census Bureau is conducting its remaining enumeration

operations . . . .” (emphasis in original)); Defs.’ Original Reply 2 “([T]he Memorandum itself

[does] not in any way affect the conduct of the actual census . . . .”).

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reach the constitutional question in our Opinion and Order — and need not do so here — that proposition is certainly debatable. By their own admission, Defendants cannot cite a single example in the historical record where any branch of the Government adopted the interpretation of the Constitution that they now advance. See Oral Arg. Tr. 46; New York, 2020 WL 5422959, at *32; see also, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014) (holding that “historical practice” was entitled to “significant weight” in interpreting the Recess Appointments Clause); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505 (2010) (observing that “[p]erhaps the most telling indication of the severe constitutional problem with” the structure of the independent agency at issue was its “lack of historical precedent” (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting))).
In any event, Justice Frankfurter’s axiom that “if a word is obviously transplanted from another legal source . . . it brings the old soil with it,” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947) (cited at Defs.’ Mem 5), does not get Defendants very far, for at least two reasons. First, as we noted in our Opinion and Order, a court’s principal task in interpreting a statute is to apply its terms “in accord with the ordinary public meaning . . . at the time of its enactment.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020); accord Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362-63 (2019) (citing cases). The “old soil” axiom is a means to that end; at bottom, it is an application of the well-established principle that when Congress adopts the language of an earlier legal source, it is presumed to have also adopted the settled understanding given to such language “and made it a part of the enactment.” United States v. Kwai Fun Wong, 575 U.S. 402, 425 (2015) (Alito, J., dissenting) (citation omitted); see Stokeling v. United States, 139 S. Ct. 544, 551 (2019). As we
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previously demonstrated, to the extent that there was a settled understanding of the constitutional language in 1929, when the precursor to Section 2a was enacted, it was that the “whole number of persons in each State” used for apportionment included all persons residing in a State, without regard for legal status. See New York, 2020 WL 5422959, at *30-32.5 At best, Defendants maintain that the constitutional question was unsettled in 1929 (and, indeed, that it remains unsettled today). If so, the old soil does not answer the relevant question.
Moreover, as we explained in our Opinion and Order, there was a good reason not to plow the “old soil” in this case: Doing so would run contrary to the equally well-established principle that courts should not “pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” New York, 2020 WL 5422959, at *25 (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).6 The Supreme Court has never followed the “old soil” axiom in interpreting a statute where, as here, the “old soil” was the Constitution itself, let alone where, as here also, doing so would entail passing upon a constitutional question for the first time. Doing so would be inconsistent with “the fundamental principle of judicial restraint.” Wash.

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Defendants argue that, in our Opinion and Order, we “appeared to rely on statements

suggesting a view only that aliens (writ large) cannot be excluded from the enumeration count

for apportionment,” which “does not answer the question whether a smaller subset — some or all

aliens who are here unlawfully — may be excluded.” Defs.’ Mem. 6 (citation omitted). But

Defendants do not identify a single statement or source in 1929 that differentiated between legal

and illegal aliens with respect to the statutory phrase “whole number of persons in each State.”

That silence is fatal to Defendants’ argument.

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Thus, Defendants’ assertion in the Jurisdictional Statement they filed in the Supreme

Court, that we “gave no reason for departing from the presumption that when ‘a word is

obviously transplanted from another legal source,’ it ‘brings the old soil with it,’” is wrong.

Jurisdictional Statement 32, Trump v. New York, No. 20-366 (Sept. 22, 2020) (“Jurisdictional

Statement”) (quoting Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)). Likely because it flies in the

face of our Opinion and Order, Defendants do not make the same assertion in their brief seeking

relief from us here.

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State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008). And doing so here would have unnecessarily complicated our task, as the meaning of the phrase “whole number of persons in each State” in 1929 was and is clear without the need to delve into Founding and Reconstruction era sources. See Ashwander, 297 U.S. at 347 (Brandeis, J., concurring) (“It is not the habit of the [C]ourt to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” (citation omitted)). C. Defendants’ Mismatch Argument Was Waived and Does Not Justify a Stay
Finally, Defendants’ mismatch argument does not merit a stay for several reasons. First, they waived the argument by not pressing it earlier. See, e.g., Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1215 (9th Cir. 2009) (“[The defendant] did not object to the scope of the injunction before the district court and, therefore, has waived the objection.”); In re Aimster Copyright Litig., 334 F.3d 643, 656 (7th Cir. 2003) (“[Defendant] objects to the injunction’s breadth. But having failed to suggest alternative language either in the district court or in this court, it has waived the objection.”).7 Defendants try to evade the consequences of their earlier silence by suggesting (and arguing more explicitly in their Jurisdictional Statement in the Supreme Court) that the issue relates to standing or mootness and, thus, jurisdiction. See Defs.’ Mem. 2-3; see also Jurisdictional Statement 12-16. But that suggestion is meritless. It is black letter law that “the standing inquiry” is “focused on . . . when the suit was filed,” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008), and census operations were in full swing when

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This issue was foreseeable well before our decision. The prospect that, in finding

standing and granting relief, we might rely solely on the harms caused by the Presidential

Memorandum to the census count was apparent as early as the initial conference on August 5,

2020. See Aug. 5, 2020 Tr. 25-35. That we had multiple avenues available through which we

could find a violation and craft relief does not excuse Defendants’ failure to recognize and

address the issue in their brief or during oral argument.

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these suits were filed. And there is certainly no mootness issue now (let alone at the time we issued our Opinion and Order), as census operations are ongoing as of today and may continue for at least a month. See Nat’l Urban League, 2020 WL 5739144, at *48; see also, e.g., 2020 Census Deadline Extensions Act, S. 4571, 116th Cong. (2020) (bipartisan bill introduced in the Senate on September 15, 2020 that would extend census operations to October 31, 2020).
Second, to the extent that Defendants are correct that, upon the end of census operations, our injunction would no longer be needed to prevent census-related harms, they seek the wrong form of relief and at the wrong time. Instead, Defendants must move to modify or dissolve the injunctive portion of our judgment at the end of census operations, pursuant to Rules 60(b)(5) and 62(d) of the Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 62(d) (“While an appeal is pending from . . . [a] final judgment that grants . . . an injunction, the court may suspend, modify, restore, or grant an injunction . . . .”); Horne v. Flores, 557 U.S. 433, 447 (2009) (“Rule [60(b)(5)] provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.” (internal quotation marks and citation omitted)); see also Fed. R. App. P. 8(a)(1) (“A party must ordinarily move first in the district court for . . . an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.”). Staying the injunction now would be inappropriate in this respect, because the factual circumstances could be materially different at the end of census operations — and not necessarily in Defendants’ favor.8 Put differently, Defendants’ confident assertion that there will

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For example, if the Census Bureau and the Secretary have determined by that time the

methodology they will use to count the number of “aliens who are not in a lawful immigration

status” as directed in the Presidential Memorandum, Plaintiffs’ asserted apportionment harms

might no longer be speculative and could well justify maintaining the injunction.

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be no factual basis for an injunction following the end of census operations is entirely speculative and thus can’t serve as the basis for a stay at this point.
Finally, the real “mismatch” here is between Defendants’ arguments and the relief they seek, namely a stay of our judgment in its entirety. Injunction aside, Defendants’ argument on appeal provides absolutely no basis to disturb the declaratory judgment (thus undermining Defendants’ assertion that our Opinion and Order constitutes an impermissible “advisory opinion”). See, e.g., Richardson v. Ramirez, 418 U.S. 24, 34-40 (1974) (holding that a case was not moot based in part on the fact that the lower court had granted declaratory relief); cf. Brockington v. Rhodes, 396 U.S. 41, 42 (1969) (“[I]n view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future elections. . . . He did not seek a declaratory judgment, although that avenue too was open to him.” (emphases added)). We assume — just as the Supreme Court did in Utah and Franklin — that it is “substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute . . . by the District Court . . . .” Franklin, 505 U.S. at 803 (plurality opinion), quoted with approval in Utah, 536 U.S. at 463-64 (majority opinion). To the extent that this assumption is valid, there is no basis for a stay because, so long as the declaratory judgment stands, the Secretary will not include the second set of numbers in his Section 141(b) report anyway. And to the extent that this assumption is invalid, there is no basis for a stay because the injunction is needed to prevent Defendants from acting unlawfully.
HARM TO PLAINTIFFS AND THE PUBLIC INTEREST Finally, the third and fourth stay factors — whether a stay “will substantially injure” Plaintiffs and “where the public interest lies,” Nken, 556 U.S. at 434; see, e.g., Sierra Club v.
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Trump, 929 F.3d 670, 704-05 (9th Cir. 2019) (holding that where, as here, the government seeks a stay, the third and fourth factors merge) — also weigh heavily against a stay. Defendants’ argument on the third prong is limited to two sentences, see Defs.’ Mem 7, and barely merits commentary. Defendants would not suffer any harm in the absence of a stay. But if a stay were granted, Plaintiffs would suffer the irreparable injuries detailed at length in our Opinion and Order: the “massive and lasting consequences” of an inaccurate census count, which “occurs only once a decade, with no possibility of a do-over if it turns out to be flawed.” New York, 2020 WL 5422959, at *16 (citation omitted); see also id. at *9-23. Moreover, we fail to see how, as Defendants argue, “a stay serves the public interest by promoting clarity for the public (and for the parties) as to exactly what will happen in the upcoming census process,” Defs.’ Mem. 8 — given that Defendants have not articulated how, if at all, the Secretary plans to fulfill his directive under the Presidential Memorandum. See Defs.’ Original Mem. 7 (“The extent to which it will be feasible for the Census Bureau to provide the Secretary of Commerce a second tabulation is, at this point, unknown.”); see also id. at 4, 8; Joint Pre-Conf. Ltr. 5; Defs.’ Original Reply 1-2, 6-7; Sept. 3, 2020 Oral Arg. Tr. 36. And, of course, “[t]here is generally no public interest in the perpetuation of unlawful agency action. To the contrary, there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks and citations omitted).
CONCLUSION In sum, Defendants have not come close to carrying “the[ir] burden of showing that the circumstances justify an exercise” of our discretion to grant a stay. Nken, 556 U.S. at 433-34. They fail to show that they are likely to succeed on the merits or that a stay would be in the
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public interest. And more significantly, in the face of their own prior admissions that a final resolution of these cases in 2021 would cause no harm because the President could revise his apportionment statement to Congress, Defendants’ arguments about irreparable harm and urgency are frivolous. Accordingly, Defendants’ motion for a stay is DENIED.
The Clerk of Court is directed to terminate ECF No. 171.

SO ORDERED.
Dated: September 29, 2020 New York, New York

_______________/s/_________________ RICHARD C. WESLEY
United States Circuit Judge
_______________/s/_________________ PETER W. HALL
United States Circuit Judge
_______________/s/_________________ JESSE M. FURMAN
United States District Judge

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