3JUD-PANEL,TYPE-L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02023-CRC-GGK-DLF

COMMON CAUSE et al v. TRUMP et al Panel: Judge Christopher R. Cooper
Circuit Judge Gregory G. Katsas Judge Dabney L. Friedrich Cause: 02:431 Fed. Election Commission: Failure Enforce C

Date Filed: 07/23/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff COMMON CAUSE

represented by Aron Fischer PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2363 Email: afischer@pbwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory L. Diskant PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Fax: 212-336-2222 Email: gdiskant@pbwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonah M. Knobler PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Fax: 212-336-2222

Email: jknobler@pbwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Fax: 212-336-2222 Email: pnelson@pbwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Email: amarion@pbwt.com PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Email: dhercher@pbwt.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Email: ekisch@pbwt.com TERMINATED: 08/21/2020 PRO HAC VICE

Plaintiff CITY OF ATLANTA

J. Jay Cho PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036 212-336-2000 Email: jcho@pbwt.com PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas Suite 2200 New York, NY 10036-6710 (212) 336-2034 Fax: (212) 336-2222 Email: druzumna@pbwt.com ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff CITY OF PATERSON

Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address)

Plaintiff
PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ROBERTO AGUIRRE

Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address)

Plaintiff SHEILA AGUIRRE

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff PAULA AGUIRRE

Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address)

Plaintiff ANDREA M. ALEXANDER

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff DEBRA DE OLIVEIRA

Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SARA PAVON

represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna

Plaintiff JONATHAN ALLAN REISS

(See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE
J. Jay Cho (See above for address) PRO HAC VICE

Plaintiff MYRNA YOUNG

ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Aron Fischer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory L. Diskant (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonah M. Knobler (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter A. Nelson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Abigail E. Marion (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Devon Hercher (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ethan Kisch (See above for address) TERMINATED: 08/21/2020 PRO HAC VICE

Plaintiff COLEEN P. STEVENS PORCHER
Plaintiff RAQUEL MORSY
Plaintiff SUSAN N. WILSON
Plaintiff MASA
Plaintiff ANGELO ANCEHTA
Plaintiff JEANNE ELLEN RAYA
Plaintiff NEW JERSEY CITIZEN ACTION

J. Jay Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED

Plaintiff DENNIS VROEGINDEWEY
Plaintiff CITY OF DAYTON
Plaintiff IRENE STERLING
Plaintiff CITY OF PORTLAND
Plaintiff LILBERT ROY ONTAI
Plaintiff THAD SMITH
Plaintiff NORMA MOTE
Plaintiff JOSANNA SMITH
Plaintiff

represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED

STAN FORBES
Plaintiff CENTER FOR CIVIC POLICY
Plaintiff NEW MEXICO ASIAN FAMILY CENTER
Plaintiff SIMON FISCHER-BAUM
Plaintiff CYNTHIA DAI
Plaintiff CONNIE GALAMBOS MALLOY
Plaintiff INGE SPUNGEN
Plaintiff NM COMUNIDADES EN ACCION Y DE FE

represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel Seth Ruzumna (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

DONALD J. TRUMP in his official capacity as President of the United States
Defendant UNITED STATES DEPARTMENT OF COMMERCE
Defendant WILBUR L. ROSS, JR. in his official capacity as Secretary of Commerce
Defendant

represented by Brad P. Rosenberg U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 514-3374 Fax: (202) 616-8460 Email: brad.rosenberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott M. Davis U.S. DEPARTMENT OF JUSTICE Civil Division 1100 L St, NW Washington, DC 20005 202-353-5639 Email: elliott.m.davis@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott M. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott M. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

CHERYL L. JOHNSON in her official capacity as the Clerk of the United States House of Representatives TERMINATED: 07/31/2020 Defendant BUREAU OF THE CENSUS an agency within the United States Department of Commerce
Defendant STEVEN DILLINGHAM in his official capacity as Director of the Bureau of the Census
Movant ELIZABETH WARREN
Movant RON WYDEN

represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott M. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brad P. Rosenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elliott M. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296-6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address)

Amicus BRIAN SCHATZ
Amicus CORY A. BOOKER
Amicus RICHARD BLUMENTHAL
Amicus SHERROD BROWN
Amicus MARTIN HEINRICH
Amicus ROBERT MENENDEZ
Amicus JEFFREY A. MERKLEY

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address)

Amicus U.S. HOUSE OF REPRESENTATIVES
Amicus MARGO ANDERSON
Amicus ANDREW BEVERIDGE
Amicus RACHEL BUFF
Amicus LIBBY GARLAND

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas N. Letter U.S. HOUSE OF REPRESENTATIVES Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 (202) 225-9700 Email: douglas.letter@mail.house.gov 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 Email: rclary@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus J. MORGAN KOUSSER
Amicus ERIKA LEE
Amicus NATALIA MOLINA
Amicus STEVEN RUGGLES
Amicus BEN & JERRY'S HOMADE, INC.

represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard W. Clary (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-4000 Fax: 212-351-4035 Email: asouthwell@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington, DC 20036-5306 (202) 887-3598 Email: JWesneski@gibsondunn.com

Amicus CASPER SLEEP INC

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, NW Suite 300 Washington, DC 20036-5306 (202) 887-3650 Fax: (202) 663-6363 Email: SDelery@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown GIBSON DUNN & CRUTCHER LLP 200 Park Ave Ste 48th Floor New York, NY 10166 212-351-6205 Email: rbrown@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus CUMMINS INC
Amicus GENERAL ASSEMBLY SPACE, INC.
Amicus KNOTEL INC

represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address)

Amicus LEVI STRAUSS & CO.
Amicus LIVHOME INC

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus LUSH COSMETICS LLC
Amicus MARA HOFFMAN INC

Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY

Amicus MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE
Amicus POSTMATES INC

ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery

Amicus SHUTTERSTOCK, INC.
Amicus UER TECHONOLOGIES INC

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus UNIVISION COMMUNICATIONS INC.
Amicus WORKPLACE OPTIONS LLC

Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address)

Amicus ZENDESK INC
Amicus LEAGUE OF WOMEN VOTERS OF THE UNITED STATES
Amicus LEAGUE OF WOMEN VOTERS OF FLORIDA Amicus

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alexander H. Southwell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Wesneski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart F. Delery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randi Kira Brown (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cynthia Cook Robertson PILLSBURY WINTHROP SHAW PITTMAN, LLP 1200 17th Street, NW Washington, DC 20036 (202) 663-9256 Fax: (202) 354-5459 Email: cynthia.robertson@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cynthia Cook Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

LEAGUE OF WOMEN VOTERS OF TEXAS
Amicus LEAGUE OF WOMEN VOTERS OF CALIFORNIA
Amicus IMMIGRATION REFORM LAW INSTITUTE

represented by Cynthia Cook Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cynthia Cook Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Joseph Hajec IMMIGRATION REFORM LAW INSTITUTE 25 Massachusetts Avenue, NW Suite 335 Washington, DC 20001 (202) 232-5590 Email: chajec@irli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/23/2020
07/23/2020

# Docket Text

COMPLAINT against CHERYL L. JOHNSON, WILBUR L.

1

ROSS, JR, DONALD J. TRUMP, UNITED STATES

DEPARTMENT OF COMMERCE ( Filing fee $ 400 receipt

number ADCDC-7379006) filed by JONATHAN ALLAN REISS,

PAULA AGUIRRE, CITY OF ATLANTA, COMMON CAUSE,

SHEILA AGUIRRE, CITY OF PATERSON, DEBRA DE

OLIVEIRA, MYRNA YOUNG, ANDREA M. ALEXANDER,

PARTNERSHIP FOR THE ADVANCEMENT OF NEW

AMERICANS, SARA PAVON, ROBERTO AGUIRRE.

(Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons,

# 4 Summons, # 5 Summons, # 6 Summons,

# 7 Summons)(Ruzumna, Daniel) (Entered: 07/23/2020)

2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA

07/28/2020
07/28/2020 07/29/2020 07/31/2020 08/03/2020
08/03/2020

PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Ruzumna, Daniel) (Entered: 07/23/2020)

3 ERRATA filed by JONATHAN ALLAN REISS, PAULA AGUIRRE, CITY OF ATLANTA, COMMON CAUSE, SHEILA AGUIRRE, CITY OF PATERSON, DEBRA DE OLIVEIRA, MYRNA YOUNG, ANDREA M. ALEXANDER, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Ruzumna, Daniel) Modified on 7/28/2020 to correct docket entry text (zsb). (Entered: 07/28/2020)

Case Assigned to Judge Christopher R. Cooper. (zsb) (Entered: 07/28/2020)

4 SUMMONS (6) Issued Electronically as to CHERYL L. JOHNSON, WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 07/29/2020)

NOTICE of Voluntary Dismissal re Cheryl L. Johnson without

5

prejudice (Ruzumna, Daniel) (Entered: 07/31/2020)

6 MOTION for Leave to Appear Pro Hac Vice :Attorney NameGregory L. Diskant, Filing fee $ 100, receipt number ADCDC7416988. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Gregory L. Diskant, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)

7 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJonah M. Knobler, Filing fee $ 100, receipt number ADCDC7417077. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Jonah M. Knobler, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)

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

8 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Aron Fischer, Filing fee $ 100, receipt number ADCDC-7417106. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Aron Fischer, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Peter A. Nelson, Filing fee $ 100, receipt number ADCDC-7417146. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Peter A. Nelson, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- J. Jay Cho, Filing fee $ 100, receipt number ADCDC-7417198. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of J. Jay Cho, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney NameDevon Hercher, Filing fee $ 100, receipt number ADCDC7417214. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Devon Hercher, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
12 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAbigail E. Marion, Filing fee $ 100, receipt number ADCDC-

08/03/2020
08/03/2020 08/04/2020 08/04/2020 08/04/2020

7417237. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Abigail E. Marion, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney NameEthan Kisch, Filing fee $ 100, receipt number ADCDC-7417287. Fee Status: Fee Paid. by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Attachments: # 1 Declaration of Ethan Kisch, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/03/2020)
MINUTE ORDER granting 6 , 7 , 8 , 9 , 10 , 11 , 12 , and 13 Motions for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 8/3/20. (lccrc1) Modified on 8/4/2020 (lsj). (Entered: 08/03/2020)
14 NOTICE of Appearance by Gregory L. Diskant on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Diskant, Gregory) (Entered: 08/04/2020)
15 NOTICE of Appearance by Jonah M. Knobler on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Knobler, Jonah) (Entered: 08/04/2020)
16 NOTICE of Appearance by Aron Fischer on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON

08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/04/2020 08/10/2020

CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Fischer, Aron) (Entered: 08/04/2020)
17 NOTICE of Appearance by Peter A. Nelson on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Nelson, Peter) (Entered: 08/04/2020)
18 NOTICE of Appearance by J. Jay Cho on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Cho, J. Jay) (Entered: 08/04/2020)
19 NOTICE of Appearance by Devon Hercher on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Hercher, Devon) (Entered: 08/04/2020)
20 NOTICE of Appearance by Abigail E. Marion on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Marion, Abigail) (Entered: 08/04/2020)
21 NOTICE of Appearance by Ethan Kisch on behalf of PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, CITY OF ATLANTA, CITY OF PATERSON, COMMON CAUSE, DEBRA DE OLIVEIRA, JONATHAN ALLAN REISS, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, ROBERTO AGUIRRE, MYRNA YOUNG (Kisch, Ethan) (Entered: 08/04/2020)
22 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon

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

United States Attorney on 8/4/2020. Answer due for ALL FEDERAL DEFENDANTS by 10/3/2020. (Ruzumna, Daniel) (Entered: 08/10/2020)
23 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/04/2020. (Ruzumna, Daniel) (Entered: 08/10/2020)
24 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 8/4/2020 (Ruzumna, Daniel) (Entered: 08/10/2020)
25 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF COMMERCE served on 8/4/2020 (Ruzumna, Daniel) (Entered: 08/10/2020)
26 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WILBUR L. ROSS, JR served on 8/4/2020 (Ruzumna, Daniel) (Entered: 08/10/2020)
27 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CHERYL L. JOHNSON served on 8/4/2020 (Ruzumna, Daniel) (Entered: 08/10/2020)
28 AMENDED COMPLAINT (FIRST) against WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, STEVEN DILLINGHAM filed by PAULA AGUIRRE, CITY OF ATLANTA, COMMON CAUSE, SARA PAVON, JONATHAN ALLAN REISS, SHEILA AGUIRRE, CITY OF PATERSON, DEBRA DE OLIVEIRA, MYRNA YOUNG, ANDREA M. ALEXANDER, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, ROBERTO AGUIRRE, COLEEN P. STEVENS PORCHER, RAQUEL MORSY, SUSAN N. WILSON, MASA, ANGELO ANCEHTA, JEANNE ELLEN RAYA, NEW JERSEY CITIZEN ACTION, DENNIS VROEGINDEWEY, CITY OF DAYTON, IRENE STERLING, CITY OF PORTLAND, LILBERT ROY ONTAI, THAD SMITH, NORMA MOTE, JOSANNA SMITH, STAN FORBES, CENTER FOR CIVIC POLICY, NEW MEXICO ASIAN FAMILY CENTER, SIMON FISCHER-BAUM, CYNTHIA DAI, CONNIE GALAMBOS MALLOY, INGE SPUNGEN, NM COMUNIDADES EN ACCION Y DE FE. (Attachments: # 1 Summons as to Bureau of the Census, # 2 Summons as to Steven Dillingham)(Ruzumna, Daniel) (Entered: 08/11/2020)

08/11/2020

29 MOTION to Convene Three-Judge Court by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, ANGELO ANCEHTA, CENTER FOR CIVIC POLICY, CITY OF ATLANTA, CITY OF DAYTON, CITY OF PATERSON, CITY OF PORTLAND, COMMON CAUSE, CONNIE GALAMBOS MALLOY, CYNTHIA DAI, DEBRA DE OLIVEIRA, SIMON FISCHER-BAUM, STAN FORBES, JONATHAN ALLAN REISS, MASA, RAQUEL MORSY, NORMA MOTE, NEW JERSEY CITIZEN ACTION, NEW MEXICO ASIAN FAMILY CENTER, NM COMUNIDADES EN ACCION Y DE FE, LILBERT ROY ONTAI, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, JEANNE ELLEN RAYA, ROBERTO AGUIRRE, JOSANNA SMITH, THAD SMITH, INGE SPUNGEN, IRENE STERLING, COLEEN P. STEVENS PORCHER, DENNIS VROEGINDEWEY, SUSAN N. WILSON, MYRNA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Ruzumna, Daniel) (Entered: 08/11/2020)

08/12/2020

MINUTE ORDER: Defendants are hereby ORDERED to file a notice by close of business on August 13, 2020, indicating whether they intend to oppose Plaintiffs' 29 Motion to Convene Three-Judge Court. Signed by Judge Christopher R. Cooper on 8/12/20. (lccrc1) (Entered: 08/12/2020)

08/13/2020 30

RESPONSE re 29 MOTION to Convene Three-Judge Court filed by BUREAU OF THE CENSUS, STEVEN DILLINGHAM, WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE. (Rosenberg, Brad) (Entered: 08/13/2020)

08/19/2020

31 MOTION for Partial Summary Judgment , or in the Alternative,, MOTION to Expedite Trial on the Merits by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, ANGELO ANCEHTA, CENTER FOR CIVIC POLICY, CITY OF ATLANTA, CITY OF DAYTON, CITY OF PATERSON, CITY OF PORTLAND, COMMON CAUSE, CONNIE GALAMBOS MALLOY, CYNTHIA DAI, DEBRA DE OLIVEIRA, SIMON FISCHER-BAUM, STAN FORBES, JONATHAN ALLAN REISS, MASA, RAQUEL MORSY, NORMA MOTE, NEW JERSEY CITIZEN ACTION, NEW MEXICO ASIAN FAMILY CENTER, NM COMUNIDADES EN ACCION Y DE FE, LILBERT ROY ONTAI, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, JEANNE ELLEN RAYA, ROBERTO AGUIRRE, JOSANNA SMITH, THAD SMITH, INGE SPUNGEN, IRENE STERLING, COLEEN P. STEVENS PORCHER, DENNIS VROEGINDEWEY, SUSAN N. WILSON,

08/19/2020 08/20/2020

MYRNA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Declaration of Peter A. Nelson, # 3 Exhibit 1, Declaration of Karen Hobert Flynn, # 4 Exhibit 2, Declaration of Plaintiff Paula Aguirre, # 5 Exhibit 3, Declaration of Plaintiff Roberto Aguirre, # 6 Exhibit 4, Declaration of Plaintiff Sheila Aguirre, # 7 Exhibit 5, Declaration of Plaintiff Angelo Ancheta, # 8 Exhibit 6, Declaration of Plaintiff Cynthia Ming-Hui Dai, # 9 Exhibit 7, Declaration of Plaintiff Simon Fischer-Baum, # 10 Exhibit 8, Declaration of Plaintiff Connie Galambos Malloy, # 11 Exhibit 9, Declaration of Plaintiff Raquel Morsy, # 12 Exhibit 10, Declaration of Plaintiff Norma Mote, # 13 Exhibit 11, Declaration of Plaintiff Lilbert Roy Ontai, # 14 Exhibit 12, Declaration of Plaintiff Sara Pavon, # 15 Exhibit 13, Declaration of Plaintiff Coleen P. Stevens Porcher, # 16 Exhibit 14, Declaration of Plaintiff Jeanne Ellen Raya, # 17 Exhibit 15, Declaration of Plaintiff Jonathan Allan Reiss, # 18 Exhibit 16, Declaration of Plaintiff Inge Spungen, # 19 Exhibit 17, Declaration of Plaintiff Irene Sterling, # 20 Exhibit 18, Declaration of Plaintiff Dennis Vroegindewey, # 21 Exhibit 19, Declaration of Plaintiff Susan N. Wilson, # 22 Exhibit 20, Declaration of Plaintiff Myra Young, # 23 Exhibit 21, Expert Declaration of Dr. Christopher Warshaw, # 24 Exhibit 22, Expert Declaration of Dr. D. Sunshine Hillygus, # 25 Exhibit 23. Expert Declaration of John Thompson, # 26 Statement of Facts, # 27 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/19/2020)
32 MOTION to Expedite Proceedings by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, ANGELO ANCEHTA, CENTER FOR CIVIC POLICY, CITY OF ATLANTA, CITY OF DAYTON, CITY OF PATERSON, CITY OF PORTLAND, COMMON CAUSE, CONNIE GALAMBOS MALLOY, CYNTHIA DAI, DEBRA DE OLIVEIRA, SIMON FISCHER-BAUM, STAN FORBES, JONATHAN ALLAN REISS, MASA, RAQUEL MORSY, NORMA MOTE, NEW JERSEY CITIZEN ACTION, NEW MEXICO ASIAN FAMILY CENTER, NM COMUNIDADES EN ACCION Y DE FE, LILBERT ROY ONTAI, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, JEANNE ELLEN RAYA, ROBERTO AGUIRRE, JOSANNA SMITH, THAD SMITH, INGE SPUNGEN, IRENE STERLING, COLEEN P. STEVENS PORCHER, DENNIS VROEGINDEWEY, SUSAN N. WILSON, MYRNA YOUNG (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Ruzumna, Daniel) (Entered: 08/19/2020)
33 ORDER granting 29 Motion to Convene Three-Judge Court: Plaintiffs' 29 Motion for a Three-Judge Panel is GRANTED. The

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

Court requests that the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit convene a three-judge court. Signed by Judge Christopher R. Cooper on 8/20/20. (lccrc1) (Entered: 08/20/2020)
34 NOTICE of Appearance by Elliott M. Davis on behalf of All Defendants (Davis, Elliott) (Entered: 08/20/2020)
35 PROPOSED BRIEFING SCHEDULE by PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, ANGELO ANCEHTA, CENTER FOR CIVIC POLICY, CITY OF ATLANTA, CITY OF DAYTON, CITY OF PATERSON, CITY OF PORTLAND, COMMON CAUSE, CONNIE GALAMBOS MALLOY, CYNTHIA DAI, DEBRA DE OLIVEIRA, SIMON FISCHER-BAUM, STAN FORBES, JONATHAN ALLAN REISS, MASA, RAQUEL MORSY, NORMA MOTE, NEW JERSEY CITIZEN ACTION, NEW MEXICO ASIAN FAMILY CENTER, NM COMUNIDADES EN ACCION Y DE FE, LILBERT ROY ONTAI, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, JEANNE ELLEN RAYA, ROBERTO AGUIRRE, JOSANNA SMITH, THAD SMITH, INGE SPUNGEN, IRENE STERLING, COLEEN P. STEVENS PORCHER, DENNIS VROEGINDEWEY, SUSAN N. WILSON, MYRNA YOUNG. (Diskant, Gregory) (Entered: 08/20/2020)
36 NOTICE OF WITHDRAWAL OF APPEARANCE as to PAULA AGUIRRE, SHEILA AGUIRRE, ANDREA M. ALEXANDER, ANGELO ANCEHTA, CENTER FOR CIVIC POLICY, CITY OF ATLANTA, CITY OF DAYTON, CITY OF PATERSON, CITY OF PORTLAND, COMMON CAUSE, CONNIE GALAMBOS MALLOY, CYNTHIA DAI, DEBRA DE OLIVEIRA, SIMON FISCHER-BAUM, STAN FORBES, JONATHAN ALLAN REISS, MASA, RAQUEL MORSY, NORMA MOTE, NEW JERSEY CITIZEN ACTION, NEW MEXICO ASIAN FAMILY CENTER, NM COMUNIDADES EN ACCION Y DE FE, LILBERT ROY ONTAI, PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, SARA PAVON, JEANNE ELLEN RAYA, ROBERTO AGUIRRE, JOSANNA SMITH, THAD SMITH, INGE SPUNGEN, IRENE STERLING, COLEEN P. STEVENS PORCHER, DENNIS VROEGINDEWEY, SUSAN N. WILSON, MYRNA YOUNG. Attorney Ethan Kisch terminated. (Ruzumna, Daniel) (Entered: 08/21/2020)
MINUTE ORDER: In light of the parties' 35 Proposed Page Limits and Briefing Schedule, the parties are hereby ORDERED to adhere to the following briefing schedule: Defendants shall file their cross motion for summary judgment and opposition (not to exceed 60

pages) by September 2, 2020; Plaintiffs shall file their combined opposition and reply (not to exceed 45 pages) by September 16, 2020; and Defendants shall file their reply (not to exceed 30 pages) seven days after Plaintiffs' reply/opposition. Signed by Judge Christopher R. Cooper on 8/21/20. (lccrc1) (Entered: 08/21/2020)

08/24/2020

Set/Reset Deadlines: Cross Motions due by 9/2/2020. Response to Cross Motions due by 9/16/2020. (lsj) (Entered: 08/24/2020)

08/24/2020 37

ORDER of USCA filed in USCA on August 24, 2020, designating Circuit Judge Gregory G. Katsas and District Judge Dabney L. Friedrich to serve with District Judge Christopher R. Cooper to hear and determine this case. Judge Katsas will preside. (Signed by Sri Srinivasan on 8/24/2020). (zrdj) (Entered: 08/25/2020)

08/24/2020

***Circuit Judge Gregory G. Katsas and District Judge Dabney L. Friedrich added to case. (ztnr) (Entered: 08/25/2020)

08/25/2020

NOTICE OF ERROR re 35 Proposed Briefing Schedule; emailed to gdiskant@pbwt.com, cc'd 17 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect Format (Letter); In future, all documents must be in pleading format in accordance with Local Rules; DO NOT REFILE (znmw, ) (Entered: 08/25/2020)

08/26/2020

38 Consent MOTION for Leave to File Amici Curiae Brief of Members of Congress by BRIAN SCHATZ, CORY A. BOOKER, RICHARD BLUMENTHAL, SHERROD BROWN, MARTIN HEINRICH, ROBERT MENENDEZ, Jeffrey A. Merkley, ELIZABETH WARREN, RON WYDEN (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Gorod, Brianne) (Entered: 08/26/2020)

08/26/2020

39 NOTICE of Appearance by Douglas N. Letter on behalf of U.S. HOUSE OF REPRESENTATIVES (Letter, Douglas) (Entered: 08/26/2020)

08/26/2020

40 MOTION for Leave to File Amicus Curiae Brief by MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES (Attachments: # 1 BRIEF OF AMICI CURIAE HISTORIANS IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, EXPEDITED TRIAL ON THE MERITS, # 2 Text of Proposed Order)(Clary, Richard) (Entered: 08/26/2020)

08/26/2020

41 NOTICE of Appearance by Richard W. Clary on behalf of MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL

08/26/2020 08/26/2020 08/26/2020 08/26/2020 08/26/2020

BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES (Clary, Richard) (Entered: 08/26/2020)
42 MOTION for Leave to Appear Pro Hac Vice :Attorney NameANTONY L. RYAN, Filing fee $ 100, receipt number ADCDC7512903. Fee Status: Fee Paid. by MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES (Attachments: # 1 Declaration OF ANTONY L. RYAN IN SUPPORT OF MOTION FOR ADMISSION OF ATTORNEY PRO HAC VICE, # 2 Text of Proposed Order)(Clary, Richard) (Entered: 08/26/2020)
43 MOTION for Leave to Appear Pro Hac Vice :Attorney NameHELAM GEBREMARIAM, Filing fee $ 100, receipt number ADCDC-7512912. Fee Status: Fee Paid. by MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES (Attachments: # 1 Declaration OF HELAM GEBREMARIAM IN SUPPORT OF MOTION FOR ADMISSION OF ATTORNEY PRO HAC VICE, # 2 Text of Proposed Order)(Clary, Richard) (Entered: 08/26/2020)
44 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMARK TRACHTENBERG, Filing fee $ 100, receipt number ADCDC-7512930. Fee Status: Fee Paid. by MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES (Attachments: # 1 Declaration OF MARK TRACHTENBERG IN SUPPORT OF MOTION FOR ADMISSION OF ATTORNEY PRO HAC VICE, # 2 Text of Proposed Order)(Clary, Richard) (Entered: 08/26/2020)
45 MOTION for Leave to File Brief as Amicus Curiae by U.S. HOUSE OF REPRESENTATIVES (Attachments: # 1 Brief of the U.S. House of Representatives as Amicus Curiae in Support of Plaintiffs, # 2 Text of Proposed Order)(Letter, Douglas) (Entered: 08/26/2020)
46 NOTICE of Appearance by Stuart F. Delery on behalf of Ben & Jerry's Homemade, Inc., Casper Sleep Inc., Cummins Inc., GENERAL ASSEMBLY SPACE, INC., Knotel, Inc., LEVI STRAUSS & CO., LivHOME, Inc., LUSH COSMETICS LLC, Mara Hoffman Inc., Minneapolis Regional Chamber of Commerce, Postmates Inc., SHUTTERSTOCK, INC., Uber Technologies Inc.,

08/26/2020
08/27/2020 08/27/2020 08/27/2020
08/27/2020

UNIVISION COMMUNICATIONS INC., Workplace Options, LLC, Zendesk Inc. (Delery, Stuart) (Entered: 08/26/2020)
47 Unopposed MOTION for Leave to File Amicus Brief by Ben & Jerry's Homemade, Inc., Casper Sleep Inc., Cummins Inc., GENERAL ASSEMBLY SPACE, INC., Knotel, Inc., LEVI STRAUSS & CO., LUSH COSMETICS LLC, LivHOME, Inc., Mara Hoffman Inc., Minneapolis Regional Chamber of Commerce, Postmates Inc., SHUTTERSTOCK, INC., UNIVISION COMMUNICATIONS INC., Uber Technologies Inc., Workplace Options, LLC, Zendesk Inc. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Proposed Brief)(Delery, Stuart) (Entered: 08/26/2020)
MINUTE ORDER granting 42 , 43 , and 44 Motions for Leave to Appear Pro Hac Vice by Mark Trachtenberg, Helam Gebremariam, and Antony L. Ryan. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper for the three-judge Court on 8/27/2020. (lccrc1) (Entered: 08/27/2020)
MINUTE ORDER granting 38 , 40 , 45 , and 47 Motions for Leave to File Amicus Briefs. Signed by Judge Christopher R. Cooper for the three-judge panel on 8/27/2020. (lccrc1) (Entered: 08/27/2020)
48 NOTICE of Appearance by Joshua M. Wesneski on behalf of BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC, LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS INC., WORKPLACE OPTIONS LLC, ZENDESK INC (Wesneski, Joshua) (Entered: 08/27/2020)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAlexander H. Southwell, Filing fee $ 100, receipt number ADCDC7516363. Fee Status: Fee Paid. by BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC, LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS

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

INC., WORKPLACE OPTIONS LLC, ZENDESK INC (Attachments: # 1 Declaration of A. Southwell, # 2 Text of Proposed Order)(Wesneski, Joshua) (Entered: 08/27/2020)
50 MOTION for Leave to Appear Pro Hac Vice :Attorney NameRandi K. Brown, Filing fee $ 100, receipt number ADCDC7516384. Fee Status: Fee Paid. by BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC, LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS INC., WORKPLACE OPTIONS LLC, ZENDESK INC (Attachments: # 1 Declaration of R. Brown, # 2 Text of Proposed Order)(Wesneski, Joshua) (Entered: 08/27/2020)
51 NOTICE of Appearance by Cynthia Cook Robertson on behalf of LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, LEAGUE OF WOMEN VOTERS OF FLORIDA, LEAGUE OF WOMEN VOTERS OF TEXAS, League of Women Voters of California (Robertson, Cynthia) (Entered: 08/27/2020)
52 Consent MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs by LEAGUE OF WOMEN VOTERS OF FLORIDA, LEAGUE OF WOMEN VOTERS OF TEXAS, LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, League of Women Voters of California (Attachments: # 1 Exhibit Proposed Amicus Curiae Brief, # 2 Text of Proposed Order)(Robertson, Cynthia) (Entered: 08/27/2020)
53 AMICUS BRIEF by RICHARD BLUMENTHAL, CORY A. BOOKER, SHERROD BROWN, MARTIN HEINRICH, ROBERT MENENDEZ, JEFFREY A. MERKLEY, BRIAN SCHATZ. (ztd) (Entered: 08/28/2020)
54 AMICUS BRIEF by MARGO ANDERSON, ANDREW BEVERIDGE, RACHEL BUFF, LIBBY GARLAND, J. MORGAN KOUSSER, ERIKA LEE, NATALIA MOLINA, STEVEN RUGGLES. (ztd) (Entered: 08/28/2020)
55 AMICUS BRIEF by U.S. HOUSE OF REPRESENTATIVES. (ztd) (Entered: 08/28/2020)
56 AMICUS BRIEF by BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC,

08/28/2020 08/28/2020 09/02/2020 09/02/2020
09/02/2020 09/02/2020

LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS INC., WORKPLACE OPTIONS LLC, ZENDESK INC. (ztd) (Entered: 08/28/2020)
MINUTE ORDER granting 52 Motion for Leave to File Amicus Brief. Signed by Judge Christopher R. Cooper for the three-judge panel on 08/28/2020. (lccrc2) (Entered: 08/28/2020)
57 AMICUS BRIEF by LEAGUE OF WOMEN VOTERS OF CALIFORNIA, LEAGUE OF WOMEN VOTERS OF FLORIDA, LEAGUE OF WOMEN VOTERS OF TEXAS, LEAGUE OF WOMEN VOTERS OF THE UNITED STATES. (ztd) (Entered: 09/01/2020)
MINUTE ORDER granting 49 , 50 Motions for Leave to Appear Pro Hac Vice by Alexander H. Southwell and Randi K. Brown. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper for the threejudge Court on 09/02/2020. (lccrc2) (Entered: 09/02/2020)
58 NOTICE of Appearance by Randi Kira Brown on behalf of BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC, LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS INC., WORKPLACE OPTIONS LLC, ZENDESK INC (Brown, Randi) (Entered: 09/02/2020)
59 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction by BUREAU OF THE CENSUS, STEVEN DILLINGHAM, WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE (Attachments: # 1 Declaration of John M. Abowd, Ph.D., # 2 Declaration of Albert E. Fontenot, Jr., # 3 Text of Proposed Order)(Davis, Elliott) (Entered: 09/02/2020)
60 Memorandum in opposition to re 31 MOTION for Partial Summary Judgment , or in the Alternative, MOTION to Expedite Trial on the Merits filed by BUREAU OF THE CENSUS, STEVEN DILLINGHAM, WILBUR L. ROSS, JR, DONALD J. TRUMP,

09/02/2020 09/03/2020 09/04/2020
09/11/2020

UNITED STATES DEPARTMENT OF COMMERCE. (Attachments: # 1 Declaration of John M. Abowd, Ph.D., # 2 Declaration of Albert E. Fontenot, Jr., # 3 Text of Proposed Order)(Davis, Elliott) (Entered: 09/02/2020)
61 Memorandum in opposition to re 32 MOTION to Expedite Proceedings filed by BUREAU OF THE CENSUS, STEVEN DILLINGHAM, WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE. (Attachments: # 1 Exhibit A - Stipulated Scheduling Order in Utah v. Evans)(Davis, Elliott) (Entered: 09/02/2020)
62 NOTICE of Proposed Order by BUREAU OF THE CENSUS, STEVEN DILLINGHAM, WILBUR L. ROSS, JR, DONALD J. TRUMP, UNITED STATES DEPARTMENT OF COMMERCE re 61 Memorandum in Opposition, (Davis, Elliott) (Entered: 09/03/2020)
63 NOTICE of Appearance by Alexander H. Southwell on behalf of BEN & JERRY'S HOMADE, INC., CASPER SLEEP INC, CUMMINS INC, GENERAL ASSEMBLY SPACE, INC., KNOTEL INC, LEVI STRAUSS & CO., LIVHOME INC, LUSH COSMETICS LLC, MARA HOFFMAN INC, MINNEAPOLIS REGIONAL CHAMBER OF COMMERCE, POSTMATES INC, SHUTTERSTOCK, INC., UER TECHONOLOGIES INC, UNIVISION COMMUNICATIONS INC., WORKPLACE OPTIONS LLC, ZENDESK INC (Southwell, Alexander) (Entered: 09/04/2020)
64 AMICUS BRIEF in support of defendants by IMMIGRATION REFORM LAW INSTITUTE. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Hajec, Christopher) (Entered: 09/11/2020)

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 Case 1:20-cv-02023-CRC-GGK-DLF Document 69-1 Filed 09/18/20 Page 1 of 68
Exhibit A

Case 1:20-cv-02023-CRC-GGK-DLF Document 69-1 Filed 09/18/20 Page 2 of 68

UNITED STATES DISTRICT COURT DISTRICT OF DISTRICT OF COLUMBIA

COMMON CAUSE, 805 15th Street NW, 8th Floor, Washington, DC 20005,

CITY OF ATLANTA, 55 Trinity Avenue, Atlanta, GA 30303,

CITY OF CLARKSTON, 1055 Rowland Street, Clarkston, GA 30021,

CITY OF DAYTON, 101 W 3rd Street, Dayton, OH 45402,

CITY OF EL PASO, 300 N. Campbell Street, El Paso, TX 79901,

CITY OF PATERSON, 155 Market Street, Paterson, NJ 07505,

Case No. 1:20-cv-02023-CRC

CITY OF PORTLAND, 1221 SW 4th Avenue, Portland, OR 97204,
CITY OF SANTA MONICA, 1685 Main Street, Santa Monica, CA 90401,
CITY OF SOUTH PASADENA, 1414 Mission Street, South Pasadena, CA 91030,

SECOND AMENDED COMPLAINT
THREE-JUDGE COURT REQUESTED

EL MONTE UNION HIGH SCHOOL DISTRICT, 3537 Johnson Avenue, El Monte, CA 91731,

CENTER FOR CIVIC POLICY, P.O. Box 27616, Albuquerque, NM 87125,

MASA, 2770 Third Avenue, 1st Floor, Bronx, NY 10455,

NEW JERSEY CITIZEN ACTION, 625 Broad Street, Suite 270, Newark, NJ 07102,

NEW MEXICO ASIAN FAMILY CENTER, 115 Montclaire Drive SE, Albuquerque, NM 87108,

NM COMUNIDADES EN ACCIÓN Y DE FÉ ,

Case 1:20-cv-02023-CRC-GGK-DLF Document 69-1 Filed 09/18/20 Page 3 of 68
420 W Griggs Avenue, Las Cruces, NM 88005,
PARTNERSHIP FOR THE ADVANCEMENT OF NEW AMERICANS, 4089 Fairmount Avenue, San Diego, CA, 92105,
ROBERTO AGUIRRE, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
SHEILA AGUIRRE, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
PAULA AGUIRRE, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
ANDREA M. ALEXANDER, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
ANGELO ANCHETA, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
CYNTHIA DAI, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
SIMON FISCHER-BAUM, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
STAN FORBES, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
CONNIE GALAMBOS MALLOY, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
RAQUEL MORSY, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
2

Case 1:20-cv-02023-CRC-GGK-DLF Document 69-1 Filed 09/18/20 Page 4 of 68
NORMA MOTE, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
DEBRA DE OLIVEIRA, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
LILBERT ROY ONTAI, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
SARA PAVON, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
COLEEN P. STEVENS PORCHER, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
JEANNE ELLEN RAYA, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
JONATHAN ALLAN REISS, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
JOSANNA SMITH, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
THAD SMITH, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
INGE SPUNGEN, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
IRENE STERLING, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
3

Case 1:20-cv-02023-CRC-GGK-DLF Document 69-1 Filed 09/18/20 Page 5 of 68
DENNIS VROEGINDEWEY, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
SUSAN N. WILSON, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
and
MYRNA YOUNG, c/o Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas, New York, NY 10036,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, 1600 Pennsylvania Avenue NW, Washington, DC 20500,
UNITED STATES DEPARTMENT OF COMMERCE, 1401 Constitution Avenue NW, Washington, DC 20230,
WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce, U.S. Department of Commerce 1401 Constitution Avenue NW, Washington, DC 20230,
BUREAU OF THE CENSUS, an agency within the United States Department of Commerce, 4600 Silver Hill Road, Washington, DC 20233
and
STEVEN DILLINGHAM, in his official capacity as Director of the Bureau of the Census, 4600 Silver Hill Road, Washington, DC 20233,
Defendants.
INTRODUCTION
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1. This is a complaint for declaratory judgment and injunctive and mandamus relief against implementation of the Memorandum issued by President Donald J. Trump on July 21, 2020, titled “Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census” (the “Memorandum”). Plaintiffs seek relief on the grounds that the Memorandum violates Article I, § 2 of the U.S. Constitution as amended by § 2 of the Fourteenth Amendment; the Equal Protection guarantees of the Fifth and Fourteenth Amendments; 2 U.S.C. § 2a; 13 U.S.C. § 141; and 13 U.S.C. § 195.
2. The Memorandum purports to break with almost 250 years of past practice by excluding undocumented immigrants when calculating the number of seats to which each State is entitled in the House of Representatives. This new policy flouts the Constitution’s plain language, which states that “[r]epresentatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state,” excluding only “Indians not taxed.” U.S. Const., amend. XIV, § 2 (emphasis added). It also flies in the face of the statutory scheme governing apportionment, which requires the President to include “the whole number of persons in each State” in the apportionment base—again, excluding only “Indians not taxed.” 2 U.S.C. § 2a(a) (emphasis added).
3. Since the founding, all three branches of government have agreed that “the whole number of persons in each state” includes any non-citizens, documented or undocumented, who reside in each state. That consensus includes a three-judge panel of this very Court. See Fed’n. for Am. Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564, 576-77 (D.D.C.) (stating that “the population base for purposes of apportionment” must “includ[e] aliens both lawfully and unlawfully within our borders” (emphasis added)), appeal dismissed, 447 U.S. 916 (1980).
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4. Now, for the first time in our nation’s history, the President has purported to declare the opposite, without any statutory or constitutional basis for his unilateral action. As the Department of Justice observed in 1980, such a change would be “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.”
5. President Trump’s Memorandum is not an isolated event. Rather, it is part of a concerted effort, stretching back at least five years, to shift the apportionment base from total population to citizen population—a strategy intended, in the words of its chief architect, to enhance the political power of “Republicans and non-Hispanic whites” at the expense of people of color, chiefly Latinos. The Memorandum is, in this respect, consistent with the Administration’s attempt to add a citizenship question to the 2020 census—a ploy that the U.S. Supreme Court rejected as pretextual and unlawful. The Administration’s latest effort should meet the same end.
6. Equally problematic, because the government has never conducted—and cannot now conduct—a direct headcount of undocumented immigrants in each state, implementing the Memorandum would necessarily violate the Constitution’s requirement of “actual Enumeration.” On information and belief, implementing the Memorandum would also require Defendants to violate Congress’s express prohibition on “statistical sampling and adjustment” in connection with apportionment. As Congress has found, the use of such techniques “to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census.” Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1998, § 209(a)(7), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note) (emphasis added).
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7. Plaintiffs bring this action for declaratory, injunctive, and mandamus relief under 42 U.S.C. § 1983, 28 U.S.C. § 2201(a), and 28 U.S.C. § 1361 to halt Defendants’ violations of the Constitution and laws of the United States and to protect the right of all of this country’s inhabitants to the equal protection of its laws.
JURISDICTION AND VENUE 8. This Court has subject-matter jurisdiction under 28 U.S.C. § 1331, because this action arises under the Constitution and laws of the United States; under 28 U.S.C. § 1346(a)(2), because this is a qualifying civil action against the United States; and under 28 U.S.C. § 1361, because this is an action in the nature of mandamus to compel an officer of the United States to perform a duty owed to Plaintiffs. 9. Relief is authorized under 42 U.S.C. § 1983, 28 U.S.C. § 2201(a), and 28 U.S.C. § 2202. 10. Plaintiffs request the convening of a three-judge court pursuant to 28 U.S.C. § 2284; 13 U.S.C. § 195; and Pub. L. No. 105-119, § 209(e)(1), 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note (e)(1)). 11. Venue is proper in this District pursuant to 28 U.S.C. § 1391(e)(1) because Defendants are United States agencies or officers acting in their official capacities or under color of legal authority, and Defendants reside in this District, or a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District, or one or more Plaintiffs resides in this District. 12. This Court has personal jurisdiction over Defendants because Defendants are located within this District and Defendants’ actions and omissions giving rise to Plaintiffs’ claims occurred in this District.
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PARTIES 13. Plaintiff Common Cause is a nonprofit organization based in and organized under the laws of the District of Columbia. Common Cause is a nonpartisan democracy organization with over 1.2 million members, 22 state offices, and a presence in all 50 states. It has members in all 50 states and in every congressional district. Since its founding by John Gardner fifty years ago, Common Cause has been dedicated to making government at all levels more representative, open, and responsive to the interests of ordinary people. It sues herein both on its own behalf and on behalf of its members. 14. Plaintiff City of Atlanta is the capital and most populous city in the State of Georgia, with a population of over half a million. People of color constitute the majority of its population. It has a notably large population of immigrants, including Latino immigrants, as well as immigrants from East and South Asia, Africa, and the Caribbean. The Mayor’s Office for Immigrant Affairs works to create a connected, inclusive community, where Atlantans are afforded equal opportunities and can meaningfully engage in civic life, regardless of language or country of origin. 15. Plaintiff City of Clarkston is a vibrant community of 13,500 people located in DeKalb County, Georgia. Clarkston is proud of its ethnic diversity with half the population born outside the United States, hailing from over fifty countries across six continents. Fifty-eight percent of Clarkston's residents speak a language other than English at home. The city proudly boasts being the most diverse square mile in America. 16. Plaintiff City of Dayton is the county seat of Montgomery County, Ohio, with a population of approximately 140,000. Since the mid-2000s, Dayton’s immigrant population has more than doubled. In 2011, Dayton launched Welcome Dayton, a community initiative that
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promotes immigrant integration into the region. In 2017, Dayton was the first city in the United States to earn the status of Certified Welcoming in recognition of inclusiveness and integration of immigrants from Welcoming America, a non-partisan national nonprofit.
17. Plaintiff City of El Paso is the county seat of El Paso, Texas, with a population of more than 681,000 people. People of color constitute the majority of its population, which is eighty percent Latino. Approximately twenty-four percent of El Paso residents were born outside of the United States.
18. Plaintiff City of Paterson is the county seat of Passaic County, New Jersey, with a population of approximately 150,000 people. It has a notably large population of immigrants, including Latino immigrants, as well as immigrants from Bangladesh, India, South Asia, and the Arab and Muslim world.
19. Plaintiff City of Portland is the county seat of Multnomah County and the most populous city in Oregon, with a population of approximately 650,000. Portland has approximately 85,000 immigrant residents, including approximately 18,000 undocumented immigrants and approximately 14,000 refugees. In 2016, Portland established the New Portlanders Policy Commission to advise the City on policies and practices to integrate immigrant and refugee communities into the City’s decision-making process.
20. Plaintiff City of Santa Monica is a small coastal city in California with a population of approximately 90,000. Approximately twenty-three percent of its residents were not born in the United States and approximately ten percent are non-citizens, including Latino and Asian immigrants. The City has implemented a number of programs to preserve and help residents keep affordable housing despite economic pressures that disproportionately affect portions of its immigrant community.
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21. Plaintiff city South Pasadena is located in Los Angeles County, California, with a population of over 25,000. More than one quarter of the city’s population was born outside of the United States and approximately ten percent of residents are non-citizens. South Pasadena, a majority-minority city and one of the most ethnically diverse cities in California, has declared it the public policy of the City to be inclusive and to respect the inherent worth of every person, without regard to a person’s race, color, religion, national origin, sex, gender identity, or immigration status.
22. Plaintiff El Monte Union High School District is a large school district in Los Angeles County, California with a population of approximately 200,000 people. Its high schools include Arroyo, El Monte, Mountain View, Rosemead, South El Monte and Fernando R. Ledesma High School. El Monte Union High School District also features the El Monte‐Rosemead Adult School, one of California’s largest and most respected adult programs, serving 11,000 adults. Approximately 10.5% of its students were not born in the United States and many are undocumented Latino and Asian immigrants. The majority of the people work in industrial and factory work and retail sales. The families who live in this area include many in the middle to lower income economic groups.
23. Plaintiff Center for Civic Policy (CCP) is a 501(c)(3) nonprofit based in Albuquerque, New Mexico. CCP works to empower and amplify the voices of everyday New Mexicans, especially those who experience oppression, to shape a more inclusive, responsive, and accountable democracy—using a racial, gender, class, and equity lens to build transformative power through collective responsibility and build thriving communities in New Mexico. In collaboration with local and national partners, CCP works to increase voter participation and turnout, identifying and training new leaders for civic life.
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24. Plaintiff Masa is a community organization based in the Bronx, New York that partners with Mexican and Latino children, youth, and families to develop strong learners and leaders who fully participate in and contribute to the larger community. Masa was founded by a group of undocumented students and over the years has built deep ties with the South Bronx Mexican, Central American and indigenous speaking community—often being the first place they turn to for help. Masa’s programs encompass early childhood and K-12 education, family engagement, leadership development, and community empowerment. Since 2019, Masa has been actively engaged in outreach related to the 2020 Census. As part of that effort, Masa has reached over 10,500 community members and has been able to get 1,250 households counted. These efforts are already being adversely affected by the Memorandum.
25. Plaintiff New Jersey Citizen Action (NJCA) is a non-partisan 501(c)(3) statewide grassroots organization based in Newark, New Jersey that fights for social, racial and economic justice. NJCA combines on-the-ground organizing, legislative advocacy, and electoral campaigns to win progressive policy and political victories that make a difference in people’s lives. NJCA has over 125 organizational affiliates and over 60,000 members. In addition to issue-advocacy campaigns, NJCA provides free direct services to low- and moderate-income individuals across New Jersey to empower people to take control of their economic futures. NJCA has engaged in significant “Get Out the Count” work, including community outreach and education and advocacy with elected officials, to ensure that New Jersey has a full, fair, and accurate census count. It sues herein on its own behalf and on behalf of its members and organizational affiliates.
26. Plaintiff New Mexico Asian Family Center (NMAFC) is a 501(c)(3) nonprofit based in Albuquerque, New Mexico. NMAFC’s primary goal is to help Asians and their
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families become more self-sufficient, empowered, and aware of their rights by utilizing multilingual and multicultural staff members, licensed counselors, and interpreters. NMAFC is a clearing house of information and referrals. It collaborates with government, private and other non-profit agencies in the areas of program development, public policy, education, and training. NMAFC serves immigrants and refugees, including those who are survivors of domestic violence, sexual assault, or other crimes. As part of the abuses they experienced, some survivors have been left in the loopholes of the immigration process and become undocumented. In addition to the direct services it provides, NMAFC advocates for public policy that benefits its clients and educates its clients about public policy, including the importance of completing the census. NMAFC leads the “Get Out the Count” outreach work to the New Mexico Asian/Pacific Islander community.
27. Plaintiff New Mexico Comunidades en Acción y de Fé (CAFé) is a 501(c)(3) nonprofit with 140 members based in Dona Ana County, New Mexico, and serving Luna, Hidalgo, and Grant counties. CAFé works to create a culture of support that empowers New Mexicans to act on their own behalf towards a better quality of life. Since its inception CAFé has been a crucial actor in the political landscape in southern New Mexico, creating a “land of opportunity” by challenging our elected leaders to put the needs of families and the common good of New Mexico first. At the helm of CAFé’s efforts are strong spiritual leaders who have played a pivotal role in healing the state and restoring people’s confidence in a responsive government that promotes opportunity for all.
28. Plaintiff Partnership for the Advancement of New Americans (PANA) is a 501(c)(3) nonprofit based in San Diego, California with over 400 members. PANA is dedicated to advancing the full economic, social, and civic inclusion of refugees. It advocates for public
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policy solutions that will ensure local governments invest in the long-term economic selfsufficiency of newcomers and refugee families, including effective resettlement strategies and equitable allocation of federal resources. PANA provides support to communities directly affected by unjust immigration policies, including nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen who have resettled and continue to seek refuge in the San Diego region. In addition to its public policy advocacy, PANA engages more than 40,000 former refugee, African immigrant, Muslim, and Southeast Asian voters in elections throughout the San Diego region to ensure the fair representation of these historically underrepresented communities. It sues herein both on its own behalf and on behalf of its members.
29. Plaintiff Roberto Aguirre is a naturalized U.S. citizen and a resident of Queens, New York City, New York. He is of Latino ethnicity and Ecuadorean national origin. He is a registered voter and regularly exercises his right to vote.
30. Plaintiff Sheila Aguirre is a natural-born U.S. citizen and a resident of Queens, New York City, New York. She is of Latina ethnicity and Ecuadorean heritage. She is a registered voter and regularly exercises her right to vote.
31. Plaintiff Paula Aguirre is a natural-born U.S. citizen and a resident of Queens, New York City, New York. She is of Latina ethnicity and Ecuadorean heritage. She is a registered voter and regularly exercises her right to vote.
32. Plaintiff Andrea M. Alexander is a natural-born citizen and a resident of Brooklyn, New York City, New York. Her racial identity is Black. She is a registered voter and regularly exercises her right to vote.
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33. Plaintiff Angelo Ancheta is a natural-born U.S. citizen and a resident of San Francisco, California. His racial identity is Asian and he is of Filipino heritage. He is a registered voter and regularly exercises his right to vote.
34. Plaintiff Cynthia Ming-hui Dai is a natural-born U.S. citizen and a resident of San Francisco, California. Her racial identity is Asian and she is of Chinese heritage. She is a registered voter and regularly exercises her right to vote.
35. Plaintiff Simon Fischer-Baum is a natural-born U.S. citizen and a resident of Houston, Texas. His racial identity is Caucasian. He is a registered voter and regularly exercises his right to vote.
36. Plaintiff Stan Forbes is a natural-born U.S. citizen and a resident of Sacramento, California. His racial identity is Caucasian. He is a registered voter and regularly exercises his right to vote.
37. Plaintiff Connie Galambos Malloy is a natural-born U.S. citizen and a resident of Pasadena, California. Her racial identity is Black and she is of Latina ethnicity and of Colombian heritage. She is a registered voter and regularly exercises her right to vote.
38. Plaintiff Raquel Morsy is a U.S. citizen and a resident of Hillside, New Jersey. She is of Latina ethnicity. She is a registered voter and regularly exercises her right to vote.
39. Plaintiff Norma (Robin) Mote is a natural-born U.S. citizen and a resident of Dallas, Texas. Her racial identity is Caucasian. She is a registered voter and regularly exercises her right to vote.
40. Plaintiff Debra de Oliveira is a naturalized U.S. citizen and a resident of Margate, Florida. Her racial identity is Black and her national origin is Guyanese. She is a registered voter and regularly exercises her right to vote.
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41. Plaintiff Lilbert (Gil) Roy Ontai is a natural-born U.S. citizen and a resident of San Diego, California. He is of Native Hawaiian heritage. He is a registered voter and regularly exercises his right to vote.
42. Plaintiff Sara Pavon is a naturalized U.S. citizen and a resident of Queens, New York City, New York. She is of Latina ethnicity and Ecuadorean national origin. She is a registered voter and regularly exercises her right to vote.
43. Plaintiff Coleen P. Stevens Porcher is a naturalized U.S. citizen and a resident of Montclair, New Jersey. She is of African/Caribbean ancestry and Jamaican national origin. She is a registered voter and regularly exercises her right to vote.
44. Plaintiff Jeanne Ellen Raya is a natural-born U.S. citizen and a resident of San Gabriel, California. She is of Latina ethnicity and Mexican heritage. She is a registered voter and regularly exercises her right to vote.
45. Plaintiff Jonathan Allan Reiss is a naturalized U.S. citizen and a resident of Manhattan, New York City, New York. He is of Caucasian ethnicity and Canadian national origin. He is a registered voter and regularly exercises his right to vote.
46. Plaintiff Josanna Smith is a natural-born U.S. citizen and a resident of Missouri City, Texas. Her racial identity is Caucasian. She is a registered voter and regularly exercises her right to vote.
47. Plaintiff Thad (Bo) Smith is a natural-born U.S. citizen and a resident of Missouri City, Texas. His racial identity is Caucasian. He is a registered voter and regularly exercises his right to vote.
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48. Plaintiff Inge Spungen is a naturalized U.S. citizen and a resident of Paterson, New Jersey. She is of Caucasian ethnicity and Danish national origin. She is a registered voter and regularly exercises her right to vote.
49. Plaintiff Irene Sterling is a U.S. citizen and a resident of Belleville, New Jersey. She is a registered voter and regularly exercises her right to vote.
50. Plaintiff Dennis Vroegindewey is a U.S. citizen and a resident of Whippany, New Jersey. He is of Caucasian ethnicity. He is a registered voter and regularly exercises his right to vote.
51. Plaintiff Susan N. Wilson is a natural-born U.S. citizen and a resident of Princeton, New Jersey. Her racial identity is Caucasian. She is a registered voter and regularly exercises her right to vote.
52. Plaintiff Myrna Young is a naturalized U.S. citizen and a resident of Fort Myers, Florida. Her racial identity is Black and her national origin is Guyanese. She is a registered voter and regularly exercises her right to vote.
53. Defendant Donald J. Trump is the current President of the United States of America. Pursuant to statute, the President is responsible for transmitting the results of the decennial census, and the resulting congressional apportionment figures, to Congress. He is sued herein in his official capacity.
54. Defendant United States Department of Commerce is a cabinet agency within the executive branch of the United States Government, and is an agency within the meaning of 5 U.S.C. § 552(f). Pursuant to statute, the Commerce Department is responsible for, among other things, implementing and administering the decennial census and transmitting the resulting tabulations to the President for further transmittal to Congress.
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55. Defendant Wilbur L. Ross, Jr., is the Secretary of Commerce of the United States and a member of the President’s Cabinet. He is responsible for conducting the decennial census and oversees the Bureau of the Census. Pursuant to statute, he is responsible for reporting to the President by January 1, 2021, a “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). He is sued herein in his official capacity.
56. Defendant Bureau of the Census (“Census Bureau”) is an agency within the United States Department of Commerce. 13 U.S.C. § 2. The Census Bureau is the agency directly responsible for planning and administering the decennial census under the direction and control of the Secretary of Commerce.
57. Defendant Steven Dillingham is the Director of the Census Bureau. In that capacity, he is responsible for administering a complete enumeration of all persons residing in the United States and providing that figure to the Secretary of Commerce for transmission to the President. He is sued herein in his official capacity.
FACTUAL ALLEGATIONS A. Statutory Law Requires Defendants to Include All Persons in the Congressional
Apportionment Base, Irrespective of Citizenship or Immigration Status 58. From the founding, the federal Constitution has required a decennial census (that is, an “actual Enumeration”) to determine the apportionment of members of the U.S. House of Representatives among the States. Although apportionment is the only purpose given for the census in the Constitution itself, census data is also used for a number of other purposes, such as redistricting of state legislative districts; determining the distribution of hundreds of millions of dollars of federal funding; and informing the decisions of federal, state, and local policymakers.
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59. The Constitution tasks Congress with passing legislation to “direct” the “manner” in which the census shall occur, subject to the requirements set forth in the Constitution itself. See U.S. Const., art. I, § 2, cl. 3; Franklin v. Massachusetts, 505 U.S. 788, 791 (1992).
60. By statute, Congress has assigned the responsibility of conducting the census to the Secretary of Commerce, and empowered the Secretary of Commerce to delegate authority for establishing procedures to conduct the census to the Census Bureau. 13 U.S.C. §§ 2, 4, 141; Franklin, 505 U.S. at 792.
61. To that end, the Census Bureau sends a questionnaire to every household in the United States, to which every resident in the United States (documented or otherwise) is legally required to respond. 13 U.S.C. § 221. The Census Bureau then counts responses from every household to determine the population count in the various states.
62. As part of its preparation for the current census, the Census Bureau formally adopted a rule—pursuant to a notice-and-comment rulemaking process—regarding, among other things, how noncitizens would be counted. See Final 2020 Census Residence Criteria and Residence Situations (“Residence Rule”), 83 Fed. Reg. 5525 (Feb. 8, 2018). The Residence Rule provided that the criteria set forth in the rule must be used “to apportion the seats in the U.S. House of Representatives among the states.” Id. at 5526 n.1.
63. Specifically, the Residence Rule provided that “[c]itizens of foreign countries living in the United States” must be “[c]ounted at the U.S. residence where they live and sleep most of the time.” Id. at 5533. As part of the notice-and-comment process, the Census Bureau considered and rejected a comment that “expressed concern about the impact of including
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undocumented people in the population counts for redistricting,” opting to count all foreign citizens who “live and sleep most of the time” in the United States.1
64. Within nine months of the census date (in this case, by January 1, 2021), the Secretary of Commerce is required by statute to report to the President “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).
65. Thereafter, the President is required by statute to transmit to Congress two sets of numbers. First, the President must provide “a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the . . . decennial census of the population.” 2 U.S.C. § 2a(a) (emphasis added).
66. Second, based on the census count of the “whole number of persons in each State,” the President must specify “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.” Id.
67. “Each State” shall thereupon “be entitled” to the number of representatives “shown in” the President’s statement to Congress, “until the taking effect of a reapportionment under this section or subsequent statute.” 2 U.S.C. § 2a(b). It is “the duty of the Clerk of the House of Representatives, within fifteen calendar days after the receipt of [the President’s] statement, to send to the executive of each State a certificate of the number of Representatives to which such State is entitled . . . .” Id.; see Franklin, 505 U.S. at 792.
1 Final 2020 Census Residence Criteria and Residence Situations, Federal Register, Vol. 83, No. 27, Thursday, February 8, 2018, https://www.govinfo.gov/content/pkg/FR-2018-02-08/pdf/2018-02370.pdf (last visited August 10, 2020).
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68. The governing statute does not authorize the Secretary of Commerce to transmit to the President a number other than “the whole number of persons in each State,” as determined by the census. Nor does it vest the President with discretion to base the apportionment calculation that he or she transmits to Congress on something other than “the whole number of persons in each State.”
69. Nor can such authorization be read into the statute. If Congress had intended to delegate to the President the substantive discretion to make wholesale changes in the apportionment base according to his own policy views, it would have said so expressly. “Congress . . . does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001); see, e.g., Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation . . . is not sustainable.”); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (“[W]e are confident that Congress could not have intended to delegate a decision of such economic and political significance . . . in so cryptic a fashion.”).
70. Indeed, in enacting this statute, members of Congress noted repeatedly that the President’s role in calculating apportionment figures is ministerial—i.e., that the statute directs 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.’” Franklin, 505 U.S. at 799 (quoting S. Rep. No. 2, 71st Cong., 1st Sess. at 4-5 (1929)); see also S. Rep. No. 2, 71st Cong., 1st Sess. at 4 (1929) (stating that the President shall report “apportionment tables” to Congress “pursuant to a purely ministerial and mathematical formula”); 71 Cong. Rec. 1858 (1929) (statement of Sen. Vandenberg) (stating that the “function served by the President is as purely and completely a ministerial function as any function on earth could be”).
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71. The Supreme Court, too, has recognized that “the President exercises no discretion” under 2 U.S.C. § 2a(a) “in calculating the numbers of Representatives,” and that his or her role in the apportionment calculation is therefore “admittedly ministerial.” Franklin, 505 U.S. at 799 (emphasis added).
72. The Executive Branch has similarly conceded the exclusively ministerial nature of the President’s role in translating the census data to an apportionment determination. See Reply Br. for the Federal Appellants at 24, Franklin v. Massachusetts, No. 91-1502 (U.S. Apr. 20, 1992), 1992 U.S. S. Ct. Briefs LEXIS 390 (“[I]t is true that the method [prescribed by 2 U.S.C. § 2a] calls for application of a set mathematical formula to the state population totals produced by the census”); Transcript of Oral Argument at 12-13, Franklin v. Massachusetts, No. 91-1502 (U.S. Apr. 21, 1992) (argument of Deputy Solicitor General John G. Roberts) (“The law directs [the President] to apply, of course, a particular mathematical formula to the population figures he receives [from the Secretary of Commerce] . . . It would be unlawful [for the President] . . . just to say, ‘these are the figures, they are right, but I am going to submit a different statement.’”).
73. “In sum, as befits a subject over which the Constitution assigns Congress ‘virtually unlimited discretion,’ Congress has been judicious in its delegation of that authority to the Executive Branch, . . . tak[ing] care to limit that [delegated] authority and . . . enact[ing] clear instructions to the Secretary to follow in carrying out his statutory duties.” New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 523-24 (S.D.N.Y.) (citation omitted) (emphasis in original), aff’d in relevant part, 139 S. Ct. 2551 (2019).
74. The President has no inherent power or discretion to modify how congressional seats are apportioned, beyond the purely ministerial powers which Congress has expressly granted to him by statute. The Constitution places the task of apportionment within Article I,
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which deals with Congress’s powers, since that task determines the composition of the legislative branch. By contrast, Article II, which deals with the President’s powers, says nothing at all about legislative apportionment.
75. This is no accident. The Framers were deeply concerned about the “concentration of the several powers [of government] in the same department [i.e., branch],” and they drafted the Constitution to resist such encroachments—not to authorize them. James Madison, Federalist No. 51 (1788). As Madison emphasized, “each department should have a will of its own,” and thus, “the members of each [department] should have as little agency as possible in the appointment of the members of the others.” Id. Giving the President inherent authority to change the composition of the House of Representatives at his whim would have been anathema to the Framers. The Constitution contains no such implicit grant of power. B. The Constitution Requires Defendants to Include All Persons in the Congressional
Apportionment Base, Irrespective of Citizenship or Immigration Status 76. From the founding of our nation, all three branches of government have agreed that, independent of statutory law, the Constitution itself requires that the census count all “persons” residing in each State, irrespective of citizenship or immigration status, and that all such “persons” be included in the congressional apportionment base. 77. As originally ratified, Article I, Section 2 of the Constitution provided that “Representatives . . . shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons [i.e., slaves]” (emphasis added).
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78. Thus, the Framers expressly chose to omit “Indians not taxed” from the apportionment base, and infamously, to count slaves as less than full people. But they pointedly did not exclude any other “free persons” from the apportionment base, demonstrating that no further exceptions were intended. See FAIR, 486 F. Supp. at 576-77. That includes free noncitizens, who as a matter of plain meaning are “persons.” See 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 sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ [within the meaning of] the Fifth and Fourteenth Amendments.”).
79. The Fourteenth Amendment was ratified following the Civil War. That amendment eliminated the “three-fifths” clause, but otherwise “retained total population as the congressional apportionment base.” Evenwel v. Abbott, 136 S. Ct. 1120, 1128 (2016). Specifically, Section 2 of 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” (emphasis added).
80. During the debates over the Fourteenth Amendment, Congress considered revising the apportionment formula to exclude persons ineligible to vote—a category which, Congress expressly recognized, included the “unnaturalized foreign-born.” Cong. Globe, 39th Cong., 1st Sess., 1256 (1866) (remarks of Sen. Wilson). This proposal was soundly rejected, on the ground that “non-voting classes”—including unnaturalized immigrants—“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. Blaine)).
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81. On several occasions since the Fourteenth Amendment’s passage, Congress has considered measures to exclude “aliens,” including undocumented immigrants, from the census count and/or apportionment base. “[I]t appears to have been generally accepted that such a result would require a constitutional amendment.” FAIR, 486 F. Supp. at 576-77.
82. For example, in advance of the 1930 census, Congress considered removing “aliens” from the congressional apportionment base.2 This proposal “was known as the Evans plan after the head of the Ku Klux Klan, Hiram Wesley Evans.”3 Its chief supporter in Congress, Representative Homer Hoch of Kansas, argued that he “knew no reason why his ‘state should lose one member and New York gain one member through inclusions of thousands of unnaturalized aliens in the country[.].’”4 But the Senate Legislative Counsel concluded that “statutory exclusion of aliens from the apportionment base would be unconstitutional.” FAIR, 486 F. Supp. at 576-77 (citing 71 Cong. Rec. 1821 (1929)). The proposal failed, and the enacted census bill continued to “base[] apportionment upon the total number of ‘persons’ residing in each State, with the exceptions of ‘Indians not taxed.’”5
83. Again in 1940, Congress considered whether “aliens who are in this country in violation of law have the right to be counted and represented.” FAIR, 486 F. Supp. at 576-77 (quoting 86 Cong. Rec. 4372 (1940)). Representative Emanuel Celler of New York explained:
The Constitution says that all persons shall be counted. I cannot quarrel with the founding fathers. They said that all should be
2 Census Bill Passed; Amendments Killed, New York Times, June 7, 1929, https://timesmachine. nytimes.com/timesmachine/1929/06/07/95965674.html?pageNumber=1 (last accessed August 10, 2020). 3 Charles W. Eagles, Democracy Delayed: Congressional Reapportionment and Urban-Rural Conflict in the 1920s 70 (paperback ed. 2010). 4 Id. 5 Census Bill Passed, supra, New York Times, June 7, 1929.
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counted. We count the convicts who are just as dangerous and just as bad as the Communists or as the Nazis, as those aliens here illegally, and I would not come here and have the temerity to say that the convicts shall be excluded, if the founding fathers say they shall be included. The only way we can exclude them would be to pass a constitutional amendment. Id. (emphasis added). On this basis, Congress rejected a proposal to exclude “aliens” from the apportionment base. See id. 84. The Executive Branch, too, has repeatedly recognized—under Presidents of both parties—that the Constitution requires that congressional apportionment take place on the basis of total population, irrespective of citizenship or immigration status. 85. For example, in 1980, under President Jimmy Carter, private plaintiffs filed a lawsuit in this District seeking to exclude “illegal aliens” from the census and the congressional apportionment base. FAIR, 486 F. Supp. at 565. Opposing the suit, the U.S. Department of Justice (“DOJ”) told this Court that the plaintiffs “s[ought] 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 Defendants’ Post-Argument Mem. at 1, FAIR v. Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980). 86. “[F]or 200 years,” the DOJ told this Court, “the decennial census has counted all residents of the states irrespective of their citizenship or immigration status,” and those counts had been employed in apportionment. Id. Given “the clear and unequivocal language of Section 2 of the Fourteenth Amendment,” the DOJ urged, the “radical revision” that the plaintiffs sought could come only from “a constitutional amendment.” Id. What is more, the DOJ explained, such a revision would be “patently unfair” to residents of communities in which undocumented
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immigrants live, as undocumented immigrants “demand[] precisely the same level of the services from the municipalities and states in which [they] reside as do all other citizens.” Id. at 12.
87. In 1988, under President Ronald Reagan, the Director of the Office of Management and Budget sought the views of the DOJ on yet another proposal to exclude “illegal aliens” from congressional apportionment base. The DOJ concluded that the proposed legislation was “unconstitutional.” Letter from Thomas M. Boyd, Acting Assistant Attorney General, dated June 29, 1988, at 5.6 In the DOJ’s view, it was “clear” that, under the Fourteenth Amendment, “all persons, including aliens residing in this country, [must] be included” in the congressional apportionment base. Id. at 2 (emphasis added). In fact, the DOJ noted, the Reconstruction Congress “rejected arguments that representation should be based on people with permanent ties to the country” and “consciously chose to include aliens.” Id. at 2-3.
88. In its 1988 opinion, the DOJ went on to explain that, for apportionment purposes, the Fourteenth Amendment makes no distinction between “aliens” who are and are not lawfully present in the United States. Furthermore, DOJ explained, in analyzing the Fourteenth Amendment, “the Supreme Court . . . has read the word ‘person’ to include illegal aliens.” Id. at 3-4 (citing Plyler, 457 U.S. at 210).
89. In 1989, under President George H. W. Bush, the DOJ issued a similar opinion. Once again, a Senator had “requested the views of the [DOJ] concerning the constitutionality of proposed legislation excluding illegal or deportable aliens from the decennial census count.” Letter from Carol T. Crawford, Assistant Attorney General, dated Sept. 22, 1989, at 1, 135 Cong.
6 Included in 1990 Census Procedures and Demographic Impact on the State of Michigan: Hearing Before the Committee on Post Office and Civil Service, House of Representatives, One Hundredth Congress, Second Session, June 24, 1988 at 240 (United States: U.S. Government Printing Office 1988).
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Rec. S12235 (1989). The DOJ responded that “section two of the Fourteenth Amendment which provides for ‘counting the whole number of persons in each state’ and 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.” Id. (emphasis added). At that time, current Attorney General William Barr was the head of DOJ’s Office of Legal Counsel. In that position, he would be expected to have reviewed and approved the DOJ opinion.
90. In 2015, under President Barack Obama, the DOJ once again took the position— this time in briefing to the Supreme Court—that Article I, § 2 and the Fourteenth Amendment “were purposely drafted to refer to ‘persons,’ rather than to voters, and to include people who could not vote”—specifically including “aliens.” Brief for the United States as Amicus Curiae, Evenwel v. Abbott, No. 14-940, at 18 (quoting Cong. Globe, 39th Cong., 1st Sess. 141, 359), 2015 U.S. S. Ct. Briefs LEXIS 3387. In the DOJ’s words, this is because “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.” Id. at 19.
91. Multiple Secretaries of Commerce and Directors of the Census Bureau have expressed the same position. For example, in a 1989 letter to Senator Jeff Bingaman, thenSecretary of Commerce Robert Mosbacher—a Republican serving under President George H. W. Bush—reiterated the Department of Commerce’s “long-held position” that, “based on
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constitutional considerations,” “illegal aliens must be included within the census counts for purposes of apportioning congressional representation.”7
92. Much more recently, in a hearing before the House Committee on Oversight and Reform, four former Directors of the Census Bureau, who served under Presidents of both parties, testified that exclusion of undocumented immigrants from the apportionment base, as commanded by the Memorandum, would be unconstitutional.8 Those who so testified were:
 Vincent Barabba, Director of the Census Bureau from 1973–76 and 1979–81, under Presidents Nixon, Ford, and Carter, who oversaw the 1980 census;
 Kenneth Prewitt, Director of the Census Bureau from 1998–2001, under President Clinton, who oversaw the 2000 census;
 Robert M. Groves, Director of the Census Bureau from 2009–12, under President Obama, who oversaw the 2010 census; and
 John H. Thompson, Director of the Census Bureau from 2013–17, under Presidents Obama and Trump, who prepared for the 2020 census.
93. The judiciary, too, has long echoed this consensus. For over fifty years, the U.S. Supreme Court has found it “abundantly clear . . . that in allocating Congressmen the number assigned to each state should be determined solely by the number of the State’s inhabitants”— i.e., not by the number of citizens or voters. Wesberry v. Sanders, 376 U.S. 1, 13 (1964).
94. Just four years ago, the Supreme Court unanimously reaffirmed that the Constitution “select[s] . . . total population as the basis for allocating congressional seats, . . . whether or not [individuals] qualify as voters.” Evenwel, 136 S. Ct. at 1129. Because
7 Letter from Secretary of Commerce Robert A. Mosbacher to Honorable Jeff Bingaman (Sept. 25, 1989), in 135 Cong. Rec. S22522 (daily ed. Sept. 29, 1989). 8 Counting Every Person: Hearing on Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks Before the House Comm. on Oversight & Reform, 116th Cong. (2020), https:// www.youtube.com/watch?v=SKXS8e1Ew7c (last accessed August 10, 2020).
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immigration was at the center of the controversy in Evenwel,9 it is beyond question that the Supreme Court had non-citizen immigrants in mind as part of the “total population” when it made this declaration.
95. Lower courts, including this Court, have also determined that “illegal aliens . . . are clearly ‘persons’” for purposes of congressional apportionment, and that “the population base for purposes of apportionment” must therefore “include[] all persons, including aliens both lawfully and unlawfully within our borders.” FAIR, 486 F. Supp. at 576 (emphasis added); see also New York, 351 F. Supp. 3d at 514 (observing that “the Constitution mandates that [the Census must] count every single person residing in the United States . . . whether living here with legal status or without,” and that “[t]he population count derived from that effort is used . . . to apportion Representatives” (emphasis added)).
96. To Plaintiffs’ knowledge, no court has ever held otherwise. C. In Violation of Statute and the Constitution, The President Has Purported to
Exclude Undocumented Immigrants from Congressional Apportionment 97. On July 21, 2020, without any advance notice to the public, the President issued a proclamation titled “Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census” (the “Memorandum”).10 Breaking with almost 250 years of precedent, the Memorandum unilaterally declares that it is now “the policy of the United States to exclude from the [congressional] apportionment base aliens who are not in a lawful
9 See, e.g., Brief of Eagle Forum as Amicus Curiae for Appellants, Evenwel v. Abbott, No. 14-940, at 2, 2015 U.S. S. Ct. Briefs LEXIS 2687 (complaining of the “influx of non-citizens in[to] urban areas”); Brief of Immigration Reform Law Institute as Amicus Curiae for Appellants, Evenwel v. Abbott, No. 14940, at 1, 2015 U.S. S. Ct. Briefs LEXIS 2724 (complaining of the “harms . . . posed by mass migration to the United States, both lawful and unlawful”). 10 Available at https://www.whitehouse.gov/presidential-actions/memorandum-excluding-illegal-aliensapportionment-base-following-2020-census/ (last accessed August 10, 2020).
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immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible . . . .” Memorandum § 2.
98. To implement that purported “policy,” the Memorandum states that, when the President “transmits . . . to the Congress” his report “regarding the ‘whole number of persons in each State’” and the consequent “number of Representatives to be apportioned to each State,” he will unilaterally “exclude . . . aliens who are not in a lawful immigration status” from the figures that he transmits. Id. §§ 1, 2. The Memorandum further asserts that these manipulated figures created at the President’s direction, and not the actual “whole number of persons in each State,” as provided in the governing statute, shall then “‘settle[] the apportionment’ of Representatives among the States.” Id. § 1.
99. To enable the President to prepare this manipulated apportionment, the Memorandum orders the Secretary of Commerce (and through him, the Commerce Department, the Census Bureau, and the Director of the Census Bureau) to “take all appropriate action . . . to provide information permitting the President . . . to carry out the policy set forth in . . . this memorandum.” Id. § 3. Presumably, this includes providing the President with “data on the number of citizens, non-citizens, and illegal aliens in the country,” which the President had earlier commanded the Department of Commerce to collect to permit the President to accomplish this purpose. Id. § 1 (citing Executive Order 13880, July 11, 2019).
100. In an accompanying statement, President Trump stated: “Today, I am . . . directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.” He then expressly linked the Memorandum to his own partisan and nativist views, stating: “There used to be a time when you could proudly declare, ‘I am a citizen of the United States.’ But now, the radical left is trying to erase the existence of this concept and
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conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of American citizens, and I will not stand for it.”11
101. Two days after President Trump issued the Memorandum, his reelection campaign sent a mass email to supporters characterizing the Memorandum as an “EXECUTIVE ORDER BLOCKING ILLEGAL ALIENS FROM BEING COUNTED IN [THE] U.S. CENSUS.” The email went on to state that “President Trump just signed an Executive Order that will block illegal aliens from receiving congressional representation, and ultimately, being counted in the U.S. Census.” The email once again linked the Memorandum to the President’s own partisan, nativist, and bigoted views, asserting that this “Executive Order” was necessary because “Democrats are prioritizing dangerous, unlawful immigrants over American Citizens.”12
102. The Memorandum makes no serious attempt to square the President’s new “policy” with the governing statutory and constitutional provisions described above or with over two centuries of contrary practice. Cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2567 (2019) (“[In the census context], as in other areas, our interpretation of the Constitution is guided” by “early understanding of and long practice”); Free Enter. Fund v. PCAOB, 561 U.S. 477, 505 (2010) (“Perhaps the most telling indication of the severe constitutional problem with [the challenged action] is the lack of historical precedent for [it].”).
103. Instead, the Memorandum purports to justify the President’s new “policy” based on his own personal view that “[e]xcluding . . . illegal aliens from the apportionment base is
11 Statement from the President Regarding Apportionment (July 21, 2020), https://www. whitehouse.gov/briefings-statements/statement-president-regarding-apportionment/ (last accessed August 10, 2020). 12 Hansi Lo Wang (@hansilowang), Twitter (July 23, 2020, 3:34 PM), https://twitter.com/ hansilowang/status/1286384297314844672 (last accessed August 10, 2020).
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more consonant with the principles of representative democracy underpinning our system of Government.” Id. § 2. The Memorandum also relies on the unexceptional premise that transient visitors to a State are not included in census numbers to argue that permanent inhabitants of a state can be excluded based solely on their immigration status.
104. The President is not free to substitute his own personal judgment for those that have already been made by the Congress that enacted 2 U.S.C. § 2a and by the framers and ratifiers of Article I, § 2 and the Fourteenth Amendment. As explained above, the President’s duty in preparing and transmitting the apportionment calculations to Congress is purely ministerial. There is no room under the statutory scheme for his exercise of judgment concerning what is most “consonant with the principles of representative democracy.” And even if the statutory scheme permitted the President to exercise such judgment, he would of course be restrained by the Constitution’s clear command. D. The Memorandum is the Latest in a Series of Unlawful Attempts to Manipulate
Apportionment to Deprive Minorities of Political Power 105. The Memorandum is not the first time that this Administration has sought to manipulate the census and apportionment process to deprive immigrants and racial and ethnic minorities of political power. To the contrary, it is the latest in an interconnected series of unlawful actions that this Administration has taken for that purpose. 106. The planning for these actions predated the start of this Administration. In August 2015, the now-deceased Republican redistricting guru Thomas B. Hofeller prepared a secret study for a major Republican donor titled “The Use of Citizen Voting Age Population in
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Redistricting” (the “Hofeller Study”).13 According to the New York Times, Hofeller had already “achieved near-mythic status in the Republican party as the Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.”14 The Hofeller Study fortuitously came to light only after he died and his estranged daughter made his personal storage devices available to Plaintiff Common Cause.
107. In his study, Hofeller concluded that “[a] switch to the use of citizen voting age population as the redistricting population base”—in lieu of total population, as presently used— “would be advantageous to Republicans and non-Hispanic whites” and would dilute the political power of Hispanics. Hofeller Study at 9 (emphasis added). The problem, Hofeller explained, was that insufficient information was available to accurately determine the States’ citizen voting-age population for purposes of reapportionment. Without “add[ing] a citizenship question to the 2020 Decennial Census form,” he concluded, such a switch would be “functionally unworkable.” Id. at 4.
108. Notably, the Hofeller Study addressed only the possibility of changing the population base for state-level redistricting. This is because Hofeller knew that the Constitution and federal law expressly require use of total population as an apportionment base at the federal level. Even in his most ambitious private scheming, Hofeller did not imagine that the apportionment base for the U.S. Congress could be changed.
13 Available at https://www.commoncause.org/wp-content/uploads/2019/05/2015-Hofeller-Study.pdf (last accessed August 10, 2020). 14 Michael Wines, Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question, New York Times, May 30, 2019, https://www.nytimes.com/2019/05/30/us/censuscitizenship-question-hofeller.html (last accessed August 10, 2020).
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109. When Defendant Trump was elected to the presidency in 2016, Hofeller “urg[ed] [his] transition team to tack the [citizenship] question onto the census.” The transition staffer with whom Hofeller spoke then discussed the issue with Defendant Ross and his advisors several times in the early days of the Administration. Soon thereafter, Hofeller ghostwrote “the key portion of a draft Justice Department letter” that claimed—falsely, and with no small amount of irony—that “the [citizenship] question was needed to enforce the 1965 Voting Rights Act,” a statute intended to protect the political power of racial and ethnic minorities.15
110. The rest is already well-known. See generally New York, 139 S. Ct. 2551. In March 2018, Defendant Ross, in his capacity as Secretary of Commerce, announced his intent “to reinstate a question about citizenship on the 2020 decennial census questionnaire.” Id. at 2562. Ross “stated that he was acting at the request of the [DOJ], which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act . . . .” Id.
111. Of course, this rationale was pretextual. The real reason for Ross’s decision was that stated by Hofeller in his 2015 study: to provide the data necessary to enable the change in apportionment base from total population to citizen voting-age population, and thereby maximize the political power of “Republicans and non-Hispanic whites.”
112. Shortly after Ross announced his decision, two groups of plaintiffs filed suit to block the citizenship question. After a bench trial, a federal district court in New York ruled (among other things) “that the Secretary’s action was arbitrary and capricious” and “based on a pretextual rationale.” Id. at 2564. The Supreme Court granted certiorari before judgment and
15 Wines, Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship Question, supra.
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affirmed, agreeing with the district court that “the Secretary’s decision must be set aside because it rested on a pretextual basis.” Id. at 2573.
113. In particular, the Supreme Court found that “the [Voting Rights Act] played an insignificant role in the decisionmaking process.” Id. at 2574. Instead, “the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process” as a “distraction” from his true, invidious motive. Id. at 2575-76.
114. On July 5, 2019, just days after the Supreme Court rendered its decision, President Trump admitted what the true reason for the citizenship question had always been. At a press conference, he was asked: “What’s the reason . . . for trying to get a citizenship question on the census?” Contrary to what the Administration had maintained in the census litigation, the President answered: “Congress. You need it for Congress, for districting. You need it for appropriations. Where are the funds going?”16
115. Six days later, at another press conference, President Trump similarly stated that the citizenship information his Administration had sought was “relevant to administering our elections,” because “[s]ome states may want to draw state and local legislative districts based upon the voter-eligible population.” He went on to explicitly tie that project of transforming the apportionment base to his own partisan and nativist views: “As shocking as it may be, far-left
16 Remarks by President Trump Before Marine One Departure, July 5, 2019, https://www. whitehouse.gov/briefings-statements/remarks-president-trump-marine-one-departure-51/ (last accessed August 10, 2020).
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Democrats in our country are determined to conceal the number of illegal aliens in our midst. They probably know the number is far greater, much higher than anyone would have believed before. Maybe that’s why they fight so hard. This is part of a broader left-wing effort to erode the rights of the American citizen.”17
116. With the citizenship question now quashed, however, the Administration sought another way to implement their goal of changing the apportionment base to shift political power to “Republicans and non-Hispanic whites.” Thus, on July 11, 2019—the day of his remarks about purportedly “erod[ing] the rights of the American citizen”—the President issued Executive Order 13880, titled “Collecting Information About Citizenship Status in Connection with the Decennial Census.” 84 Fed. Reg. 33821.
117. In that Executive Order, the President recognized that it was now “impossible . . . to include a citizenship question on the 2020 decennial census questionnaire.” Id. Instead, as a backup plan, the President “determined that it is imperative that all executive departments and agencies . . . provide the [Commerce] Department the maximum assistance permissible . . . in determining the number of citizens and non-citizens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective.” Id. To that end, the President “order[ed] all agencies to share information requested by the [Commerce] Department.” Id. at 33822. He also “direct[ed] the Department to strengthen its efforts . . . to obtain State administrative records concerning citizenship.” Id.

17 Remarks by President Trump on Citizenship and the Census, White House (July 11, 2019),

https://www.whitehouse.gov/briefings-statements/remarks-president-trump-citizenship-census/

(last

accessed August 10, 2020).

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118. For the first time, the President officially called out the importance of “generat[ing] an estimate of the aggregate number of aliens unlawfully present in each State.” Id. at 33823 (emphasis added). In addition, the President once again openly acknowledged the true reason why, from the outset, his Administration had been so intently set on collecting citizenship data: not improving enforcement of the Voting Rights Act, but rather, enabling Hofeller’s plan to “design . . . legislative districts based on the population of voter-eligible citizens,” rather than total population. Id. at 33823-24.
119. There is a clear line running through all of the above actions and decisions: from Hofeller’s original 2015 plan to change the basis of apportionment, which required new citizenship data; to Ross’s decision—at Hofeller’s urging—to place a citizenship question on the census, while giving a pretextual reason to mask his true motive; to the President’s Executive Order instructing the Commerce Department to collect citizenship data through alternate means; to the President’s recent Memorandum purporting to unilaterally shift the basis of congressional apportionment. All of these actions are part of an unconstitutional concerted effort to shift political power away from racial and ethnic minorities, chiefly Latinos, to “Republicans and nonHispanic whites.” E. To Implement the Memorandum, Defendants Must Violate the Constitution’s
Requirement of “Actual Enumeration” and/or The Statutory Bar on Sampling 120. From the beginning, Article I, Section 2, Clause 3 of the U.S. Constitution has provided that the numbers used in congressional apportionment “shall be determined” via an “actual Enumeration” (emphasis added). 121. Ratification-era dictionaries “demonstrate that an ‘enumeration’ requires an actual counting, and not just an estimation of number.” Dep’t of Commerce v. U.S. House of
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Representatives, 525 U.S. 316, 346-47 (1999) (Scalia, J., concurring). Thus, as the Supreme Court has observed, “the Framers expected census enumerators to seek to reach each individual household” when making determinations that bear on apportionment. Utah v. Evans, 536 U.S. 452, 477 (2002). To the extent other “methods substitute for any such effort, it may be argued that the Framers did not believe that the Constitution authorized their use.” Id.
122. Defendants have recently conceded this point. When the State of New York and others challenged the addition of a citizenship question to the 2020 census as a violation of (inter alia) the Enumeration Clause, the DOJ—appearing on behalf of Defendants—recognized that “the Constitution’s reference to ‘actual Enumeration’ is simple: population [for purposes of apportionment] is to be determined through a person-by-person headcount, rather than through estimates or conjecture.” Br. in Support of Defendants’ Mot. to Dismiss (ECF 155) at 30, New York v. Dep’t of Commerce, No. 1:18-cv-02921-JMF (S.D.N.Y. filed May 25, 2018) (emphasis added); see also id. at 25 (stating that the Enumeration Clause “provides a simple judicial standard for determining the constitutionality” of a practice used in creating data used for apportionment: “the Secretary must perform a person-by-person headcount, rather than an estimate of population” (emphasis added)).
123. Consistent with the Constitution’s demand for an “actual Enumeration,” starting “[f]rom the very first census” in 1790, “Congress has prohibited the use of statistical sampling in calculating the population for purposes of apportionment.” House of Representatives, 525 U.S. at 335. Instead, it has required that “enumeration . . . be made by an actual inquiry at every dwelling-house . . . and not otherwise.” Id. (emphasis added) (quoting Act of Mar. 26, 1810, § 1, 2 Stat. 565-566); see also New York, 351 F. Supp. 3d at 520 (“Since 1790, the government has conducted the required ‘actual enumeration’ through questions—initially asked in person by U.S.
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Marshals and ‘specially appointed agents’ and later by means of written questionnaire—. . . of those living in each American household.”).
124. Both the Supreme Court and Defendants themselves have recognized “the importance of [this] historical practice when examining Enumeration Clause issues.” Br. in Support of Defendants’ Mot. to Dismiss (ECF 155) at 32, New York v. Dep’t of Commerce, No. 1:18-cv-02921-JMF (S.D.N.Y. filed May 25, 2018) (citing Wisconsin v. City of New York, 517 U.S. 1, 51 (1996); Franklin, 505 U.S. at 803-06); see also New York, 139 S. Ct. at 2567.
125. In 1957, in response to a request by the Secretary of Commerce, Congress authorized the Census Bureau to use statistical sampling for the first time. However, that grant of permission was limited to “gathering supplemental, nonapportionment census information regarding population, unemployment, housing, and other matters collected in conjunction with the decennial census.” Id. at 336-37 (emphasis added).
126. Indeed, Congress expressly excluded “the determination of population for apportionment purposes” from the list of permitted uses of statistical sampling. Id. (quoting 13 U.S.C. § 195 (1970 ed.)); see also id. at 338 (holding that “[13 U.S.C.] § 195 directly prohibits the use of sampling in the determination of population for purposes of apportionment.” (ermphasis added)); New York, 139 S. Ct. at 2600-01 (Alito, J., concurring in part and dissenting in part) (“Section 195 . . . prohibits the use of sampling ‘for the determination of population for purposes of apportionment of Representatives in Congress.’”). Therefore, all information used for apportionment purposes must still be gathered through actual inquiry and counting via the census outreach process. House of Representatives, 525 U.S. at 337.
127. In 1997, Congress reiterated that the Constitution and 13 U.S.C. § 195 both prohibit the use of “statistical sampling or adjustment in conjunction with an actual
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enumeration,” and found that the use of such techniques “to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census.” Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1998, § 209(a)(7), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note) (emphasis added).
128. As an independent matter, to be lawful, methods used as part of the census and apportionment process must be accurate. See Evans, 536 U.S. at 478 (noting that the Enumeration Clause embodies a “strong constitutional interest in accuracy”); Franklin, 505 U.S. at 819-20 (Stevens, J., concurring) (noting that the “statutory command” to count the “whole number of persons in each State . . . also embodies a duty to conduct a census that is accurate”); New York, 351 F. Supp. 3d at 614 (“[I]t is, of course, the federal government’s job to collect and distribute accurate federal decennial census data.”); City of Willacoochee v. Baldrige, 556 F. Supp. 551, 555 (S.D. Ga. 1983) (“Necessarily implicit in the Census Act is the command that the census be accurate.”); see also Pub. L. No. 105-119, § 209(a)(6), 111 Stat. at 2481 (“Congress finds that . . . [i]t is essential that the decennial enumeration of the population be as accurate as possible, consistent with the Constitution and laws of the United States.”).
129. Again, the Memorandum orders the Secretary of Commerce “to provide information permitting the President” to determine the number of undocumented immigrants in each state so that they may be removed from the congressional apportionment base. Id. § 3. Assuming arguendo that it is permissible to exclude undocumented immigrants from the apportionment base at all, the only lawful way to implement the Memorandum consistent with the Enumeration Clause and the Census Act would be to actually “enumerate”—that is, to attempt to personally reach and identify—each undocumented immigrant. Defendants could not
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lawfully employ methods of quantifying undocumented immigrants for removal from the apportionment base other than “actual enumeration,” including but not limited to statistical sampling, modeling, inference, estimation, or resort to other administrative records or data.
130. Conducting an “actual Enumeration” of undocumented immigrants as part of the 2020 census is not possible. As part of the 2020 census, Defendants have never proposed to inquire about whether noncitizen respondents are “in a lawful immigration status under the Immigration and Nationality Act.” Memorandum § 2. There is no such question on the census survey to which well over half of all Americans have already responded. It is too late for such a question to be added. See La Unión del Pueblo Entero v. Ross, 771 F. App’x 323, 325 (4th Cir. 2019) (“[T]he Government’s briefing has repeatedly represented to this Court and the Supreme Court that the 2020 Census questionnaire must be finalized by this Sunday, June 30, 2019.”). Nor could such a question lawfully be added in light of the Supreme Court’s decision prohibiting Defendants from inquiring about citizenship.
131. On information and belief, Defendants do not possess any other data, gathered outside the 2020 census process, which constitutes an “actual enumeration” of the immigration status of every person living in the United States. Indeed, in separate litigation, a Census Bureau Senior Advisor represented that the Census Bureau presently “lack[s]” even “accurate estimates of the resident undocumented population” on a state-by-state basis.18 Similarly, at a recent congressional hearing, when asked how the Census Bureau intends to calculate the number of undocumented immigrants in each State, the Bureau’s current Director, Defendant Dillingham, responded that its “experts” would “look at our administrative data and any [other] data that we
18 Defendants’ Supp. Rule 26(a)(1) Disclosures and Rule 26(a)(2)(C) Disclosures, Alabama v. Dep’t of Commerce, Case No. 2:18-cv-00772-RDP (N.D. Ala. March 13, 2020) (emphasis added).
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have,” including data obtained from outside sources, then “determine . . . the [President’s desired] statistic” by “appl[ying]” unspecified “methodologies” to that data.19
132. Because actual enumeration of undocumented immigrants is not possible, any quantification of undocumented immigrants that the Secretary would provide to the President pursuant to the Memorandum, or that the President would thereafter rely upon in preparing apportionment tables for transmission to Congress, would violate the Enumeration Clause.
133. In addition, on information and belief, any quantification method that Defendants might employ in determining the number of undocumented immigrants to subtract from the apportionment base would be based on unlawful statistical sampling. Indeed, in separate litigation concerning the Memorandum in the District of Maryland, DOJ Attorney Stephen Ehrlich recently told the court that carrying out the orders in President Trump’s Memorandum may require “some statistical modeling,” although the government had not yet “formulated” a specific “methodology.”20
134. Furthermore, on information and belief, any quantification method that Defendants might employ in determining the number of undocumented immigrants to subtract from the apportionment base, other than actual enumeration (which is impossible) and statistical sampling (which is unlawful), would itself be unconstitutionally and unlawfully inaccurate.
135. The Constitution and 13 U.S.C. § 195 permit one narrow exception to the requirement that all data used in apportionment be generated through direct inquiry as part of the
19 Counting Every Person: Hearing on Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks Before the House Comm. on Oversight & Reform, 116th Cong. (2020), https:// www.youtube.com/watch?v=SKXS8e1Ew7c (last accessed August 10, 2020). 20 Hansi Lo Wang, Trump Sued Over Attempt To Omit Unauthorized Immigrants From A Key Census Count, NPR (July 24, 2020), https://www.npr.org/2020/07/24/894322040/trump-sued-for-attempt-toomitunauthorized-immigrants-from-a-key-census-count (last accessed August 10, 2020).
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census outreach process. Namely, the Census Bureau may use a technique called “imputation” to infer certain data about a particular address (e.g., “whether [it] represents a housing unit,” or “the number of persons an occupied unit contains”). See Evans, 536 U.S. at 457-58. For several reasons, however, what Defendants propose to do here is not lawful “imputation.”
136. For starters, the Bureau may “turn[] to imputation only after ordinary questionnaires and interviews have failed.” Id. at 470; see also id. at 477 (imputation permissible “only after [the Bureau] has exhausted its efforts to reach each individual”). Here, however, the Census Bureau has never even attempted to ask about immigration status (as opposed to citizenship per se) through “ordinary questionnaires and interviews.”
137. Second, as a “quantitative” matter, the Bureau may use imputation only “sparingly”—i.e., to fill in gaps involving “a tiny percent of the population,” such as the 0.4% at issue in Evans. Id. at 471, 477, 479 (suggesting that if the number of missing responses had been as high as 10%, the result would have been different). Here, however, Defendants do not lack directly enumerated data about the immigration status of just 0.4% —or even 10%—of the U.S. population. To the contrary, Defendants lack such directly enumerated data about the vast majority of the population.
138. Third, the Supreme Court stressed in Evans that permissible “imputation” must be conducted in a politically neutral manner, and cannot be used “to manipulate [apportionment] results” toward a desired outcome. Id. at 471-72; see also id. at 479 (noting that, in Evans, “manipulation of the [imputation] method [was] highly unlikely”). Here, by contrast, the Memorandum’s express intent is to strip certain disfavored states of representation in Congress. Thus, “manipulation” is the very reason why the methods at issue are being adopted. See also Dep’t of Commerce v. Montana, 503 U.S. 442, 464 & n.42 (1992) (rejecting Enumeration Clause
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claim; noting that challenged technique was adopted in “good faith,” rather than as an attempt to “favor[] a particular party” or “maintain partisan political advantage”).
139. Finally, the Evans Court’s holding depended on the fact that the particular use of imputation in that case—using data about neighboring addresses to infer whether an address was residential and how many people lived there—resembled the long-accepted practice of “ask[ing] … neighbors, landlords, postal workers, or other proxies about the number of inhabitants in a particular place” after direct inquiry had failed. Id. at 477. “Such reliance on hearsay,” the Court concluded, had a long historical pedigree, and “need be no more accurate” than “the Bureau’s method of imputation.” Id.
140. Here, however, the data that Defendants seek to estimate—how many people in each State are “in a lawful immigration status under the Immigration and Nationality Act,” Memorandum § 2—is far different from whether a particular address is residential or how many people live there. Neighbors, landlords, postal workers, and other third-party “proxies” generally do not have accurate first-hand knowledge of whether a given individual in their community is in compliance with immigration laws. The use of inferential techniques to divine that data, therefore, would not resemble anything ever done the history of the decennial census.
141. Congress has expressly provided a private right of action for declaratory, injunctive, and other appropriate relief to “[a]ny person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law . . . in connection with the . . . decennial census.” Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1998, § 209(b), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note). An “aggrieved person” is defined to include “any resident of a State whose congressional representation or district could be changed as a result of
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the use of a statistical method.” Id. § 209(d)(1) (emphasis added). As detailed below, Plaintiffs are aggrieved persons under this definition. F. Plaintiffs’ Injuries as a Result of the Challenged Conduct
142. The unlawful conduct alleged herein has caused, is causing, and unless enjoined, will cause Plaintiffs to suffer various injuries in fact.
1. Injury Based On Vote Dilution and Diminished Representation 143. The stated purpose of the Memorandum is to reduce the number of congressional representatives of certain states with higher-than-average populations of undocumented immigrants. The shrinking of the congressional delegations in the states where Plaintiffs (or their members or residents) live and vote, without more, is “undoubtedly” a cognizable injury-infact. House of Representatives, 525 U.S. at 331-32 (holding that “Appellee Hofmeister’s [i.e., an Indiana resident’s] expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing” because “[w]ith one fewer Representative, Indiana residents’ votes will be diluted”); see also New York, 351 F. Supp. 3d at 607 (“The Supreme Court has squarely held that the loss of a seat or seats in the House of Representatives ‘undoubtedly satisfies the injury-in-fact requirement of Article III standing’ because of the dilution of political power that results from such an apportionment loss.”). 144. For example, the size of a state’s congressional delegation is directly linked to the number of electors that state receives in the Electoral College. See U.S. Const., Art. II, § 1, cl. 2 (“Each State shall appoint . . . a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress” (emphasis added)). The reduction in size of a state’s congressional delegation therefore reduces the number of electors to
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which that state is entitled, and diminishes the weight of that state’s plebiscite—and the weight
of each of its voters’ individual votes—in the selection of the President and Vice President.
145. The Memorandum expressly notes that one unnamed state has “more than 2.2
million illegal aliens” and that their exclusion from the apportionment base could cost that state
as many as “two or three . . . congressional seats.” Memorandum § 2. Upon information and
belief, that state is California.
146. Analyses by multiple independent research organizations and academics have
confirmed that California would lose at least one seat if undocumented immigrants are excluded from the apportionment base. These include analyses by the Pew Research Center,21 the Center for Immigration Studies,22 the Center for Politics at the University of Virginia,23 and a peerreviewed academic study (Baumle and Poston 2019).24
147. These same analyses agree that Texas would also lose a congressional seat if
undocumented immigrants are excluded from the apportionment base. Additionally, at least one
of these analyses found that Florida, New York, and/or New Jersey would lose a seat.
21 See Jeffrey S. Passel & D’Vera Cohn, How removing unauthorized immigrants from census statistics could affect House reapportionment, Pew Research Center (July 24, 2020), https://www. pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statisticscould-affect-house-reapportionment/ (last accessed August 10, 2020). 22 Steven A. Camarota and Karen Zeigler, The Impact of Legal and Illegal Immigration on the Apportionment of Seats in the U.S. House of Representatives in 2020, Center for Immigration Studies (Dec. 19, 2019), https://cis.org/Report/Impact-Legal-and-Illegal-Immigration-Apportionment-Seats-USHouse-Representatives-2020 (last accessed August 10, 2020). 23 Dudley L. Poston Jr. and Teresa A. Sullivan, Excluding Undocumented Immigrants from the 2020 U.S. House Apportionment, UVA Center for Politics (July 30, 2020, http://centerforpolitics. org/crystalball/articles/excluding-undocumented-immigrants-from-the-2020-u-s-house-apportionment/ (last accessed August 10, 2020). 24 Amanda K. Baumle and Dudley L. Poston Jr., Apportionment of the US House of Representatives in 2020 under Alternative Immigration-Based Scenarios, Population and Development Review (Feb. 2019), https://onlinelibrary.wiley.com/doi/abs/10.1111/padr.12230 (last accessed August 10, 2020).
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148. As alleged above, a number of the individual Plaintiffs live and vote in California, Texas, Florida, New York, and New Jersey. Plaintiff Common Cause has members residing in all of these states. Plaintiff PANA also has members residing in California, and Plaintiff NJCA has members residing in New Jersey.
149. The diminution in size of these states’ congressional delegations, without more, directly results in the dilution of the vote of every resident of these states in the selection of the President and Vice President. See House of Representatives, 525 U.S. at 331-32; New York, 351 F. Supp. 3d at 607.
150. That is not the only way in which the Memorandum causes vote-dilution injury. The shrinking of a state’s congressional delegation also means that the affected state’s total population must be divided up into a smaller number of congressional districts. Because the Constitution commands “that congressional districts be drawn with equal populations,” Evenwel, 136 S. Ct. at 1123, the Memorandum will artificially increase the number of residents in every congressional district in each affected state. As a result, all citizens of each affected state will suffer diminished weight of their own personal vote within their own congressional district, and all citizens of each affected state will have to compete with a larger number of fellowconstituents for his or her representative’s limited attention and resources.
151. Finally, even in states that do not lose a seat in Congress because of the Memorandum, citizens may suffer vote dilution as a result of the Memorandum. In particular, urban areas having an above-average number of undocumented immigrants compared to the state as a whole may be placed in overpopulated districts, while rural areas having a below-average number of undocumented immigrants may be placed in underpopulated districts. If so, citizens who live in the overpopulated urban districts would suffer vote dilution as compared to citizens
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in the underpopulated rural districts. They would also have to compete with a larger number of fellow-constituents for their representative’s limited attention and resources than citizens of the underpopulated rural districts.
152. Many of the individual Plaintiffs, many members of the organizational Plaintiffs, and many residents of the city Plaintiffs live in urban areas with an above-average number of undocumented immigrants. For this reason alone, these persons may suffer vote dilution and diminished representational rights if Defendants’ challenged actions are not enjoined.
153. As the Department of Justice has previously argued, “[i]t would be patently unfair to penalize” the citizen-voters of California, Texas, New York, and Florida, and/or the citizenvoters of urban areas, “by depriving them of fair representation in Congress” and diluting their voting strength merely because “a certain number of members of their community are . . . in the class of potentially deportable aliens.” Federal Defendants’ Post-Argument Mem. at 12, FAIR v. Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980).
2. Injury Based On Racial Discrimination 154. As alleged above, the Memorandum is part of a concerted, intentional effort to diminish the political power of voters of color—chiefly, but not exclusively, Latinos—and to transfer their political power to “non-Hispanic Whites.” 155. As recognized in the Hofeller Study, removing undocumented immigrants from the apportionment base “alienat[es] Latino voters” and other voters of color, who “perceive [such] a switch . . . as an attempt to diminish their voting strength.” Hofeller Study at 4. In addition to inflicting alienation, it does, in fact, diminish the voting strength of these groups— just as it was intended to do. See id. at 6-7.
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156. As alleged above, many of the individual Plaintiffs are voters of color, as are many members of the organizational Plaintiffs and many residents of the city Plaintiffs. These include Latinos, African-Americans, Asian-Americans, and voters of other racial and ethnic backgrounds. These voters of color have suffered cognizable dignitary harm as a result of Defendants’ intentional race discrimination. They, and the racial and ethnic communities to which they belong, are also certain to suffer diminished voting strength and political power if Defendants’ actions are not enjoined.
3. Injury Due to Census Undercount 157. Whatever figures the President transmits to Congress in January 2021, the issuance of the Memorandum is already inflicting irreparable injury on Plaintiffs by suppressing the census response rate among immigrant communities—both documented and undocumented. 158. At this time, the census count is still ongoing. As of this writing, however, fully four in ten Americans have yet to be counted.25 Those who have not responded “are disproportionately likely to be from groups the census has struggled to count accurately in previous decennial census collections, including the Black and Hispanic populations,” as well as “immigrant communities.” It is well known that these populations are harder for census workers to reach than white and non-immigrant populations.26
25 See D’vera Cohn, Four-in-ten who haven’t yet filled out U.S. census say they wouldn’t answer the door for a census worker, Pew Research Center, July 28, 2020, https://www.pewresearch.org/fact-tank/2020/ 07/28/four-in-ten-who-havent-yet-filled-out-u-s-census-say-they-wouldnt-answer-the-door-for-a-censusworker/ (last accessed August 10, 2020). 26 Id.; see also Jose A. Del Real & Fredrick Kunkle, Abrupt change to census deadline could result in an undercount of Latino and Black communities, Washington Post, August 9, 2020, https://www. washingtonpost.com/politics/abrupt-change-to-census-deadline-could-result-in-an-undercount-of-latinoand-black-communities/2020/08/09/1d074eb6-d8b7-11ea-930e-d88518c57dcc_story.html (last accessed August 10, 2020).
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159. At this moment, the Memorandum is already causing fear, confusion, and
distrust among the immigrant population and even further reducing the likelihood that
immigrants (both documented and undocumented) will respond to the census.27 On information
and belief, many undocumented immigrants who have learned of the Memorandum believe that,
as a result of its issuance, the census will not enumerate them at all, or that their responses will
not count. Others believe that, as a result of the Memorandum, data provided in response to the
census may lead to the deportation of respondents, their family, or their friends. Cf. New York,
139 S. Ct. at 2566 (holding that presence of citizenship question on census would “predictabl[y]”
lead noncitizen households to avoid responding).
160. The people most likely to be undercounted as a result of the Memorandum—
immigrants and people of color—live disproportionately in cities and urban areas. As a result,
27 See, e.g., Exclusion of undocumented immigrants from the Census is unconstitutional, El Sol Latino, July 22, 2020, https://elsolnewsmedia.com/jim-kenney-exclusion/ (last accessed August 10, 2020) (reporting statement of the mayor of Philadelphia that the Memorandum “appears targeted to suppress census participation and create fear and confusion among undocumented immigrant communities”); Kendall Ashman, President’s memo to exclude undocumented immigrants from 2020 census apportionment count, ABC 40/29 News, July 22, 2020, https://www.4029tv.com/article/presidentsmemo-to-exclude-undocumented-immigrants-from-2020-census-apportionment-count/33397647# (last accessed August 10, 2020) (reporting view of Arkansas immigrant organization that “the president’s memo will potentially scare immigrant communities from taking part” in the census count); Alexandra Watts, Charlotte Reacts to Trump’s Proposed Census Changes, WFAE, July 22, 2020 https://www.wfae.org/post/charlotte-reacts-trumps-proposed-census-changes-0#stream/0 (last accessed August 10, 2020) (reporting that “[m]embers of North Carolina’s Latino community say those who are in the country illegally will be even more fearful of filling out the 2020 census after President Trump released [the Memorandum]”); Kevin Freking and Mike Schneider, Trump excluding those in US illegally from reapportionment, Adirondack Daily Enterprise, July 22, 2020, https://www. adirondackdailyenterprise.com/news/politics/2020/07/trump-excluding-those-in-us-illegally-fromreapportionment/ (last accessed August 10, 2020) (reporting that the Memorandum has “dr[awn] fury and backlash from critics who alleged that it was intended to discourage participation in the [census] survey, not only by people living in the country illegally but also by citizens who fear that participating would expose noncitizen family members to repercussions”); Micah Danney, SPLC calls Trump census memo unlawful and unconstitutional, Alabama Reporter, July 22, 2020, https://www.alreporter.com/ 2020/07/22/splc-calls-trump-census-memo-unlawful-and-unconstitutional/ (last accessed August 10, 2020) (reporting statement of the Southern Poverty Law Center that “the memo will cause widespread confusion and deter people from participating in the census”).
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whether or not President Trump ultimately excludes undocumented immigrants from the congressional apportionment base, cities and urban areas will have their populations disproportionately undercounted. This will lead, in turn, to a number of secondary injuries, such as the loss of federal and state financial grants (as discussed below) and additional vote dilution due to malapportioned congressional and state legislative districts. Cf. House of Representatives, 525 U.S. at 334 (“Thus, the appellees who live in the aforementioned counties have a strong claim that they will be injured by the Bureau’s plan because their votes will be diluted vis-à-vis residents of counties with larger ‘undercount’ rates.”).
161. The Department of Commerce and Census Bureau have recognized that attempting to exclude undocumented immigrants from the apportionment base would deter census participation and cause undercounting. For example, in a 1989 letter to Congress, thenSecretary of Commerce Robert Mosbacher stated that “excluding undocumented aliens would be entirely infeasible and would considerably undermine critical efforts being undertaken by the [Census] Bureau to assure an effective and complete count.” Secretary Mosbacher further warned that attempts to exclude undocumented immigrants “could seriously jeopardize the accuracy of the census.”28
162. Much more recently, in a hearing before the House Committee on Oversight and Reform, John Thompson, the former Director of the Census Bureau, testified that he was “extremely concerned” that the Memorandum “will adversely affect the quality and accuracy of the 2020 census.” In particular, Thompson explained that “the directive to exclude undocumented persons from the Apportionment base” is likely to further reduce the response
28 Letter from Secretary of Commerce Robert A. Mosbacher to Honorable Jeff Bingaman (Sept. 25, 1989), in 135 Cong. Rec. S22522 (daily ed. Sept. 29, 1989).
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rate among “hard-to-count populations including non-citizens and immigrants” by strengthening the “serious belief[] that their information will be given to immigration enforcement.”29
163. At the same hearing, Vincent Barabba, another former Director of the Census
Bureau, testified that, as a result of the Memorandum, documented and undocumented
immigrants “perceive that by filling out the Census form they will be placing themselves in
danger—the consequence of which will be that they will be less likely to fill out the Census form and therefore not be counted.”30
164. Unless Defendants’ actions are declared unlawful and void now, before the
conclusion of the count, this disproportionate undercount will be “baked in” to the census results.
It will be too late to remedy these undercount-related harms in January 2021, when President is
scheduled to transmit the results of the count to Congress, or thereafter.
4. Injury Based On Loss of Government Funds
165. “A large number of federal domestic financial assistance programs rely on census
data to allocate money. In fiscal year 2016, for example, at least 320 such programs allocated about $900 billion using census-derived data.” New York, 351 F. Supp. 3d at 596.31
29 Counting Every Person: Hearing on Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks Before the House Comm. on Oversight & Reform, 116th Cong. 1–3 (2020) (statement of John H. Thompson, Former Director of Census Bureau). 30 Id. (statement of Vincent P. Barabba, Former Director of Census Bureau). 31 For example, these include: Federal Transit Formula Grants, Community Development Block Grants/Entitlement Grants, Crime Victim Assistance, Title I Grants to Local Educational Authorities, Special Education Grants, State Children’s Health Insurance Program (“CHIP”), Head Start, Supplemental Nutrition Program for Women, Infants, and Children (“WIC”), Child Care and Development Block Grant, Supporting Effective Instruction State Grants, Workforce Innovation and Opportunity Act (“WIOA”) Youth Activities, Rehabilitation Services: Vocational Rehabilitation Grants to the States, Unemployment Insurance administrative costs, Block Grants for Prevention and Treatment of Substance Abuse, Social Services Block Grants, Career and Technical Education—Basic Grants to States, WIOA Disclosed Worker Formula Grants, Special Programs for the Aging, Title III, Part C,
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166. Any reduction in a state’s population as calculated by the census consequently results in fewer financial resources being directed to that state—and, by extension, to cities and residents within that state. This is so whether or not the state in question actually loses a representative in Congress as a result of the undercount.32 See New York, 351 F. Supp. 3d at 596-98 (listing ways in which “[a] net undercount of people who live in noncitizen households” would “cause states (and their residents) to lose access to federal funding”); New York, 139 S. Ct. at 2565 (“Several state respondents here have shown that if noncitizen households are undercounted by as little as 2% . . . they will lose out on federal funds that are distributed on the basis of state population.”).
167. Moreover, “many federal finding programs provide direct funding to localities based on census-derived information, including the Community Development Block Grant (‘CDBG’), Emergency Solutions Grant (‘ESG’) program, and the HOME Investment Partnerships Program.” Id. at 598. “These programs provide funding to cities and counties based at least in part on such jurisdictions’ share of the overall population count relative to other metropolitan areas. . . .” Id. Thus, any differential undercount in a particular locality would result in less direct federal funding to that locality (and to its residents).
Nutrition Services, Medical Assistance Program (traditional Medicaid), Foster Care, Child Care, Adoption Assistance, and Medicare Part D Clawback. New York, 351 F. Supp. 3d at 596 nn. 44-45. 32 That said, if a state does lose representation in Congress, it would likely suffer a further loss of financial resources. A number of economics and political science studies have found that distributive spending is allocated in part based on the number of seats that a geographic area has in Congress (e.g., Ansolabehere, Gerber and Snyder 2002; Cascio and Washington 2014; Elis, Malhotra, and Meredith 2009). For instance, Elis, Malhotra, and Meredith (2009) find that a 10% increase in a state’s share of the U.S. House of Representatives equates to a 0.7 increase in a state’s share of the federal budget. This implies that an extra congressional seat can gain a state as much as $100 per capita in additional federal funding.
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168. As the Department of Justice has recognized, removing undocumented immigrants from the apportionment base therefore “require[s]” residents of areas with an aboveaverage number of undocumented immigrants—including residents who are U.S. citizens—“to assume a greater burden of the cost of state and municipal services” merely because the President has “determined that a certain percentage of the residents of their community do not exist for purposes of allocation of federal census-based fiscal assistance.” Federal Defendants’ Post-Argument Mem. at 12, FAIR v. Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980).
169. The Supreme Court and lower courts have squarely held that such a loss of government funds due to census undercount satisfies Article III standing. See New York, 139 S. Ct. at 2565; see also Carey v. Klutznick, 637 F.2d 834, 838 (2d Cir. 1980) (“[C]itizens who challenge a census undercount on the basis . . . that improper enumeration will result in loss of funds to their city have established [standing].”); New York, 351 F. Supp. 3d at 608-09.
170. Again, many of the individual Plaintiffs, many members of the organizational Plaintiffs, and many residents of the city Plaintiffs live in states or intrastate regions with an above-average number of undocumented immigrants. Because these states and regions are currently suffering and will continue to suffer from differential undercount as a result of the Memorandum, these persons are certain to suffer fiscal burdens, including increased costs of state and municipal services, if the challenged actions are not enjoined.
171. These increased costs would be felt especially acutely by the city Plaintiffs, which must necessarily provide municipal services to citizens, documented immigrants, and undocumented immigrants on an equal basis. See, e.g., Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 74 (1978) (noting that “police, fire, and health protection” are “basic municipal services”
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whose delivery to all residents is a “city’s responsibility”); Plyler, 457 U.S. 202 (holding that the right to a free public education extends to minor undocumented immigrants).
172. For example, the State of Georgia reportedly has the seventh-largest number of undocumented immigrants in the United States, many of them concentrated in the city of Atlanta. If undocumented immigrants were removed from the apportionment base, Plaintiff City of Atlanta would have to continue to provide these municipal services to those residents without receiving federal resources and representation commensurate with their numbers. The same is true of the other city Plaintiffs.
5. Injury Based on Harm to Organizational Mission 173. The organizational Plaintiffs are presently suffering harm to their organizational missions as a result of the Memorandum. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); New York, 351 F. Supp. 3d at 615-16. 174. For example, as alleged above, PANA’s mission centers around providing support to immigrant communities, including foreign nationals who have resettled and continue to seek refuge in the San Diego region. As part of that mission, PANA has organized, is facilitating, and provides ongoing support to a Refugee Census & Immigrant Hub (RICH) of 15 grassroots organizations, to conduct census outreach, education, and questionnaire assistance to refugee communities living in hard-to-count census tracts across San Diego County. The refugees whom PANA assists are at a heightened risk of not being counted by the census because of fear and distrust of government, stemming in part from significant trauma in their countries of origin. 175. To help “get out the count” in the San Diego refugee community, among other things, PANA and its cooperating organizations have hired and trained phone-banking staff, translated census materials, and integrated census materials into existing programs and services.
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Collectively, PANA and its partners have educated 30,000 refugees and immigrants across San Diego about census participation through workshops or over the phone.
176. As alleged above, the Memorandum makes it more difficult for PANA to complete its organizational mission to “get out the count” by, among other things, worsening refugees’ preexisting fear and distrust of government. Thus, the Memorandum directly impairs and undermines PANA’s organizational mission. It also requires PANA to divert its limited resources from projects and priorities that it would otherwise pursue to counter the adverse effect of the Memorandum on its mission to “get out the count.”
177. In addition, because the San Diego region has a higher-than-average number of undocumented immigrants, removing undocumented immigrants from the apportionment base would reduce the federal resettlement resources directed to that region—resources on which PANA depends to carry out its mission.
178. Similarly, Common Cause’s organizational mission as a nonpartisan prodemocracy organization includes removing barriers to full participation in our democracy and ensuring that each American has an equal voice and vote. As the census is a cornerstone of our democratic system, ensuring a fair and accurate census that counts all Americans is pivotal to Common Cause’s mission. To that end, Common Cause has conducted public education about the importance of responding to the census and encouraged its members to lobby their representatives for a fair, accurate, and fully funded count.
179. By discouraging immigrants (both documented and undocumented) from responding to the census, the Memorandum directly impairs and undermines Common Cause’s organizational mission. It also requires Common Cause to divert its limited resources from
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projects and priorities that it would otherwise pursue to counter the adverse effect of the Memorandum on its mission to ensure a fair and accurate census.
180. As alleged above, the missions of the remaining organizational plaintiffs also involve census outreach and advocacy in immigrant and minority communities. For similar reasons, therefore, the remaining organizational Plaintiffs are also suffering, and will continue to suffer, harms to their organizational missions because of the Memorandum.
COUNT I Violation of U.S. Const., Art. I, § 2, cl. 3 & U.S. Const., amend. XIV, § 2 (“Whole Number of Persons”) 181. Plaintiffs incorporate by reference and reallege all allegations set forth in the preceding paragraphs. 182. As set forth above, Art. I, § 2, cl. 3, as modified by Section 2 of 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. 183. Since the Founding, all three branches of the federal government have consistently agreed that “the whole number of persons in each state” includes non-citizens, irrespective of their immigration status—and, consequently, that non-citizens must be counted in the census and included in the basis for congressional apportionment. 184. By purporting to exclude undocumented immigrants from the basis for congressional apportionment, the President has violated Art. I, § 2, cl. 3 of the U.S. Constitution and Section 2 of the Fourteenth Amendment to the U.S. Constitution. 185. These violations have caused, are causing, and unless Defendants are enjoined, will continue to cause Plaintiffs to suffer injury-in-fact as alleged above.
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COUNT II Violation of Equal Protection Clause (Vote Dilution and Representational Injury) 186. Plaintiffs incorporate by reference and reallege all allegations set forth in the preceding paragraphs. 187. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, made applicable to the federal government via the Due Process Clause of the Fifth Amendment, provides that the government may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1, cl. 2. 188. In particular, the Equal Protection clause prohibits the government from taking action in the apportionment process that dilutes or debases the weight of a voter’s vote based on where that voter lives. See Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964). 189. By purporting to exclude undocumented immigrants from the congressional apportionment base, Defendants have unlawfully diluted Plaintiffs’ votes (or the votes of their members and/or residents) by requiring them to live and vote in congressional districts with a population that is higher than an equal proportion of persons as determined by the census and as required by the Constitution. 190. Similarly, by purporting to exclude undocumented immigrants from the congressional apportionment base, Defendants have caused Plaintiffs (or their members and/or residents) to suffer representational injury by forcing them to compete for their Representative’s limited attention and resources with an artificially high number of fellow-constituents. 191. In addition, by purporting to exclude undocumented immigrants from the congressional apportionment base, Defendants will reduce the size of the congressional
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delegations in the states where Plaintiffs (or their members and/or residents) live and vote, thereby directly reducing the number of electors to which each such state is entitled in the Electoral College, and accordingly, reducing the weight of Plaintiffs’ votes (or the votes of their members and/or residents) in the election of the President of the United States.
192. These violations have caused, are causing, and unless Defendants are enjoined, will continue to cause Plaintiffs to suffer injury-in-fact as alleged above.
COUNT III Violation of Equal Protection Clause
(Invidious Discrimination) 193. Plaintiffs incorporate by reference and reallege all allegations set forth in the preceding paragraphs. 194. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, made applicable to the federal government via the Due Process Clause of the Fifth Amendment, provides that the government may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1, cl. 2. 195. In particular, the Equal Protection Clause prohibits the government from taking adverse action against any person on the basis of race, ethnicity, or national origin. See Flowers v. Mississippi, 139 S. Ct. 2228 (2019). This prohibition extends to the apportionment process, and encompasses not only “explicit racial classifications, but also . . . laws neutral on their face but ‘unexplainable on grounds other than race.’” Miller v. Johnson, 515 U.S. 900, 905 (1995). 196. Like the rest of the Fifth Amendment’s Due Process Clause, its Equal Protection component “applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Garza v. Hargan, 874 F.3d 735, 737–38 (D.C. Cir. 2017) (Millett, J.,
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concurring) (observing that the “bedrock protections of the Fifth Amendment’s Due Process Clause” are not eliminated by the “mere act of entry into the United States without documentation”).
197. As alleged above, the President’s Memorandum is the culmination of a years-long effort to transfer political power en masse from voters of color—chiefly, but not exclusively, Latino voters—to “Republicans and non-Hispanic whites.” In other words, the Memorandum, and the policy changes embodied therein, was motivated by intentional invidious discrimination on the basis of race, ethnicity, and/or national origin.
198. These violations have caused, are causing, and unless Defendants are enjoined, will continue to cause Plaintiffs to suffer injury-in-fact as alleged above.
COUNT IV Violation of 13 U.S.C. § 141 and 2 U.S.C. § 2a 199. Plaintiffs incorporate by reference and reallege all allegations set forth in the preceding paragraphs. 200. As set forth above, 13 U.S.C. § 141(b) requires the Secretary of Commerce to transmit to the President “the tabulation of total population by States . . . as required for the apportionment of Representatives in Congress.” This statute does not authorize the Secretary of Commerce to calculate or transmit to the President for purposes of apportionment any number other than the “total population by States,” such as the number of undocumented immigrants in each State. 201. Thereafter, 2 U.S.C. § 2a(a) requires the President to transmit to Congress “a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census” and “the number of Representatives to which each State would be entitled”
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applying the so-called “method of equal proportions” to that “whole number of persons.” This statute does not authorize the President to calculate apportionment based on any number other than the “whole number of persons in each State . . . as ascertained under the . . . decennial census.”
202. As alleged above, the President’s statutory role in this calculating the apportionment figures is purely ministerial and neither calls for, nor permits, the President’s exercise of discretion with regard to the proper apportionment basis or the proper underlying theory of democratic representation. Moreover, the President has no “inherent authority” under the Constitution to exercise discretion or make policy determinations in this process, or any other authority beyond that which Congress has expressly delegated to him, since the Constitution expressly assigns all power over apportionment to Congress, not the President.
203. By purporting to require the Secretary of Commerce to transmit to the President population figures concerning or adjusted to exclude undocumented immigrants, and by purporting to exclude undocumented immigrants in the apportionment of congressional representatives, the President has ordered the Secretary of Commerce to violate, and the Secretary has violated or will imminently violate, 13 U.S.C. § 141(b).
204. By purporting to require the Secretary of Commerce to transmit to the President population figures concerning or adjusted to exclude undocumented immigrants, and by purporting to exclude undocumented immigrants in the apportionment of congressional representatives, the President has violated or will imminently violate 2 U.S.C. § 2a(a).
205. Because President Trump and Secretary Ross have acted or will act beyond the scope of their statutory authority, they are acting ultra vires, and their actions are null and void. See, e.g., Mountain States Legal Found. v. Bush, 306 F. 3d. 1132, 1136 (D.C. Cir. 2002) (“[T]he
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Supreme Court has indicated generally that review is available to ensure that Proclamations are consistent with constitutional principles and the President has not exceeded his statutory authority.”); Chamber of Commerce of U.S. 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.”).
206. The Memorandum also will result in the President and Secretary Ross failing to perform their clear legal duties to, among other things: tabulate the total populations of the States based on data from the decennial census that includes all persons who live in the United States as their usual residence; calculate the whole number of persons in each state and the number of U.S. House seats to which each seat is entitled based on data from the decennial census that includes all persons who live in the United States as their usual residence; and transmit to Congress the whole number of persons in each state and the number of U.S. House seats to which each seat is entitled based on data from the decennial census that includes all persons who live in the United States as their usual residence.
207. These violations have caused, are causing, and unless Defendants are enjoined or compelled via mandamus to comply with their duties, will continue to cause Plaintiffs to suffer injury-in-fact as alleged above.
COUNT V Violation of U.S. Const., Art. I, § 2, cl. 3 and 13 U.S.C. § 195 (Lack of “Actual Enumeration” / Unlawful Statistical Sampling) 208. Plaintiffs incorporate by reference and reallege all allegations set forth in the preceding paragraphs.
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209. Article I, Section 2, Clause 3 of the U.S. Constitution provides that “Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined” via an “actual Enumeration” (emphasis added).
210. The Census Act, moreover, “directly prohibits the use of sampling in the determination of population for purposes of apportionment.” House of Representatives, 525 U.S. at 338 (opinion of the court) (discussing 13 U.S.C. § 195).
211. Further, the Constitution and the Census Act both require that any method of counting the population for apportionment purposes be accurate. See Evans, 536 U.S. at 478; Franklin, 505 U.S. at 819-20 (Stevens, J., concurring); New York, 351 F. Supp. 3d at 614; City of Willacoochee, 556 F. Supp. at 555; Pub. L. No. 105-119, § 209(a)(6), 111 Stat. at 2481.
212. As set forth above, it is impossible for Defendants to conduct an “actual Enumeration” of the number of undocumented immigrants in each state in connection with the 2020 census. Therefore, any implementation of the Memorandum would necessarily violate the Enumeration Clause.
213. Moreover, as set forth above, any manner of implementing the Memorandum that might be available to Defendants would require unlawful statistical sampling, would be unlawfully inaccurate, or both.
214. Congress has expressly provided a private right of action for declaratory, injunctive, and other appropriate relief to “[a]ny person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law . . . in connection with the . . . decennial census.” Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1998, § 209(b), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82
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(1997) (codified at 13 U.S.C. § 141 note). An “aggrieved person” is defined to include “any resident of a State whose congressional representation or district could be changed as a result of the use of a statistical method.” Id. § 209(d)(1) (emphasis added). As alleged above, Plaintiffs are aggrieved persons under this definition.
215. Plaintiffs are therefore entitled to a declaration, injunction, and writ of mandamus against Defendants’ violations of the Enumeration Clause and 13 U.S.C. § 195 in connection with their implementation of the Memorandum.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for injunctive and declaratory relief as requested above under 42 U.S.C. § 1983 and 28 U.S.C. § 2201(a), and more specifically pray for: A. A declaration that the Memorandum, and the other actions challenged herein, are unauthorized by and contrary to the Constitution and laws of the United States, and therefore are null, void, and without force; B. A declaration that Defendants’ exclusion of undocumented immigrants from (a) the tabulation of the total population of the states; (b) the calculation and statement of the whole number of persons in each state; and (c) the calculation and statement of the apportionment of the House of Representatives among the states, is unauthorized by and violates the Constitution and laws of the United States; C. A declaration that Defendants’ use of statistical sampling and/or other methods that do not qualify as “actual Enumeration” in connection with the determination of congressional apportionment is unauthorized by and violates the Constitution and laws of the United States;
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D. A preliminary injunction and permanent injunction halting and restraining Defendants’ violations of the U.S. Constitution and laws of the United States alleged herein, by ordering, among other things:
1. That Defendant Ross, Defendant U.S. Department of Commerce, Defendant Census Bureau, Defendant Dillingham, their employees and agents, and all others acting in concert with them: (a) not collect, assemble, prepare, or transmit to the President any data or analysis regarding citizenship or immigration status; (b) not collect, assemble, prepare, or transmit to the President any census-related data or calculation other than the whole number of persons residing in each State, excluding Indians not taxed; (c) provide no support or assistance of any kind to the President in carrying out his stated intent to exclude persons from his enumeration and apportionment determinations on the basis of citizenship or immigration status; and (d) make no use of statistical sampling, modeling, estimation, or other techniques or methodologies besides “actual Enumeration,” or any data generated, prepared, or calculated using such techniques, in connection with the census or any data or analysis based thereon; and
2. That Defendant Trump, and all others acting in concert with him, (a) include all of the inhabitants of each State, excluding Indians not taxed, without respect to such inhabitants’ citizenship or immigration status, in the enumeration and apportionment calculations that he prepares and transmits to Congress; and (b) make no use of statistical sampling, modeling, estimation, or other techniques or methodologies besides “actual Enumeration,” or any data generated, prepared, or calculated using such techniques, in connection with the enumeration and apportionment calculations that he prepares and transmits to Congress.
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G. A writ of mandamus: 1. Compelling the Secretary of Commerce to tabulate and report only the total population of each state, based only on the actual enumeration of the total population as determined by the 2020 census, including undocumented immigrants who live in the United States as their usual residence, without employing statistical sampling, modeling, estimation, or other techniques or methodologies besides “actual Enumeration,” or any data generated, prepared, or calculated using such techniques; and 2. Compelling the President to prepare and transmit apportionment tables to Congress using only the total population of each state, based only on the actual enumeration of the total population as determined by the 2020 census, including undocumented immigrants who live in the United States as their usual residence, without employing statistical sampling, modeling, estimation, or other techniques or methodologies besides “actual Enumeration,” or any data generated, prepared, or calculated using such techniques; and
A. An award of Plaintiffs’ reasonable fees, costs, and expenses, including attorney’s fees, pursuant to 28 U.S.C. § 2412; and
B. Such other and further relief as the Court may deem just and proper.
DATED: September 18, 2020
/s/ Daniel S. Ruzumna Daniel S. Ruzumna (D.C. Bar No. 450040) 66

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BONDURANT MIXSON & ELMORE LLP EMMET J. BONDURANT* 1201 West Peachtree Street NW Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Fax: (404) 881-4111 bondurant@bmelaw.com
PATTERSON BELKNAP WEBB & TYLER LLP GREGORY L. DISKANT* DANIEL S. RUZUMNA (D.C. Bar No. 450040) ARON FISCHER* JONAH M. KNOBLER* PETER A. NELSON* J. JAY CHO* DEVON HERCHER* ABIGAIL E. MARION* 1133 Avenue of the Americas New York, NY 10036 Telephone: (212) 336-2000 Fax: (212) 336-2222 gldiskant@pbwt.com
Attorneys for Plaintiffs * admitted pro hac vice
McDERMOTT WILL & EMERY MICHAEL B. KIMBERLY (D.C. Bar No. 991549) 500 North Capitol Street, NW Washington, D.C. 20001 Telephone: (202) 756-8000 Fax: (202) 756-8087 mkimberly@mwe.com
Attorney for the Individual and Organizational Plaintiffs
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 Case 1:20-cv-02023-CRC Document 31-1 Filed 08/19/20 Page 1 of 50

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

COMMON CAUSE, et al.
Plaintiffs, v. DONALD J. TRUMP, et al.
Defendants.

No. 1:20-cv-02023-CRC

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, EXPEDITED TRIAL ON THE MERITS

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND .............................................................................................................................3
A. Throughout American History, All Immigrants Have Been Included in the Congressional Apportionment Base ........................................................................3
B. Partisans Seek to Exclude Noncitizens from Apportionment..................................3 C. The Administration Attempts to Add a Citizenship Question to the Census ..........4 D. After Losing the Census Case, The Administration Continues its Efforts to
Remove Noncitizens from the Apportionment Base ...............................................6 E. The President Issues the Memorandum ...................................................................7 F. Defendants are Now Endeavoring to Implement the Memorandum .......................8
STANDARD OF REVIEW .............................................................................................................9
ARGUMENT ...................................................................................................................................9
I. PLAINTIFFS HAVE STANDING TO CHALLENGE THE MEMORANDUM ..............9
A. Plaintiffs Will Imminently Suffer Injury-in-Fact.....................................................9 B. Plaintiffs’ Injuries are Fairly Traceable to the Challenged Conduct .....................14 C. Plaintiffs’ Injuries are Redressable ........................................................................14
II. THE MEMORANDUM VIOLATES THE CONSTITUTION BY EXCLUDING UNDOCUMENTED IMMIGRANTS FROM THE APPORTIONMENT BASE............15
A. Article I, Section 2 Requires Inclusion of Undocumented Immigrants in the Apportionment Base ........................................................................................15
B. The Fourteenth Amendment Requires Inclusion of Undocumented Immigrants in the Apportionment Base .................................................................16
C. Congressional Action Since the Fourteenth Amendment Confirms that Undocumented Immigrants Must be Included in the Apportionment Base ..........18
D. The Executive Branch Has Repeatedly Stated that Excluding Undocumented Immigrants from the Apportionment Base Would Violate the Constitution......................................................................................................19
E. The Judiciary Has Confirmed that Excluding Undocumented Immigrants from the Apportionment Base Would be Unconstitutional ...................................22
F. 232 Years of Unbroken Practice Confirm This Reading of the Constitution ............................................................................................................23
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TABLE OF CONTENTS (continued)

Page

G. The Memorandum’s Constitutional Reasoning is Meritless..................................23

III. THE MEMORANDUM VIOLATES FEDERAL STATUTES BY EXCLUDING UNDOCUMENTED IMMIGRANTS FROM THE APPORTIONMENT BASE............26

A. The Statutory Scheme Requires the President to Calculate Apportionment Using “the Whole Number of Persons in Each State” ...........................................26
B. The Statutory Scheme Does Not Delegate the President Any Discretion Regarding the Apportionment Base.......................................................................27
C. The Actions in the Memorandum are Ultra Vires and Should be Enjoined ..........30

IV. THE MEMORANDUM VIOLATES THE CONSTITUTION AND FEDERAL LAW BECAUSE IT CANNOT BE IMPLEMENTED VIA “ACTUAL ENUMERATION” AND MUST RELY ON PROHIBITED STATISTICAL SAMPLING .......................................................................................................................31

A. Implementing the Memorandum Would Violate the Constitutional Requirement of “Actual Enumeration”..................................................................31
1. The Constitution Requires that Apportionment Data be Determined Exclusively via “Actual Enumeration” ......................................................31
2. “Actual Enumeration” of the Number of Undocumented Immigrants in Connection with the 2020 Census is Not Possible .............35
B. Implementing the Memorandum Would Violate the Statutory Ban on Statistical Sampling ...............................................................................................36
1. 13 U.S.C. § 195 Prohibits Statistical Sampling in Connection with Determining the Apportionment Base .......................................................36
2. Any Method of Implementing the Memorandum Available to the Census Bureau Would Require Statistical Sampling.................................37
3. The Adjustment Required Would Not Constitute Lawful “Imputation” ..............................................................................................38

CONCLUSION ..............................................................................................................................41

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TABLE OF AUTHORITIES Page(s)
Cases Adams v. Clinton,
90 F. Supp. 2d 35 (D.D.C. 2000) .............................................................................................15 Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667 (1986).................................................................................................................30 Chamber of Comm. of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................31 Cnty. of Santa Clara v. Trump,
250 F. Supp. 3d 497 (N.D. Cal. 2017), aff’d, 897 F.3d 1225 (9th Cir. 2018) .............11, 12, 13 Cooper v. Harris,
137 S. Ct. 1455 (2017).............................................................................................................40 Dart v. United States,
848 F.2d 217 (D.C. Cir. 1988) .................................................................................................30 Dep’t of Commerce v. Montana,
503 U.S. 442 (1992)...........................................................................................................28, 39 Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019)..................................................................................................... passim Dep’t of Commerce v. U.S. House of Representatives,
525 U.S. 316 (1999)......................................................................................................... passim Evenwel v. Abbott,
136 S. Ct. 1120 (2016)..................................................................................................... passim Evenwel v. Perry,
No. A-14-CV-335, 2014 U.S. Dist. LEXIS 156192 (W.D. Tex. Nov. 5, 2014)........................4 Fed’n. for Am. Immigration Reform (FAIR) v. Klutznick,
486 F. Supp. 564 (D.D.C.), appeal dismissed, 447 U.S. 916 (1980)............................... passim Franklin v. Massachusetts,
505 U.S. 788 (1992)...............................................................................................15, 28, 29, 30 Friends of Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167 (2000).................................................................................................................10 Gonzales v. Oregon,
546 U.S. 243 (2006).................................................................................................................27 Harmon v. Brucker,
355 U.S. 579 (1958).................................................................................................................30 Jennings v. Rodriguez,
138 S. Ct. 830 (2018)...............................................................................................................15
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TABLE OF AUTHORITIES (continued)

Page(s)

Kravitz v. Dep’t of Commerce, 382 F. Supp. 3d 393 (D. Md. 2019) .......................................................................................4, 5
League of Conservation Voters v. Trump, 303 F. Supp. 3d 985 (D. Alaska 2018) ....................................................................................12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................14
Mtn. States Legal Found. v. Bush, 306 F. 3d. 1132 (D.C. Cir. 2002) .............................................................................................31
New York Republican State Comm. v. SEC, 927 F.3d 499 (D.C. Cir. 2019) .................................................................................................11
New York v. Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y. 2019), aff’d in relevant part, 139 S. Ct. 2551 (2019).......................................................................................................23, 33
New York v. Dep’t of Commerce, No. 18-cv-2921, 2020 U.S. Dist. LEXIS 89470 (S.D.N.Y. May 21, 2020) ..............................5
NLRB v. Noel Canning, 573 U.S. 513 (2014)...........................................................................................................23, 32
Plyler v. Doe, 457 U.S. 202 (1982)...........................................................................................................15, 20
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).............................................................................................................13
Stark v. Wickard, 321 U.S. 288 (1944).................................................................................................................30
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).................................................................................................................11
Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) .................................................................................................30
U.S. House of Representatives v. Dep’t of Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998), aff’d, 525 U.S. 316 (1999).................................................27
United States v. Corey, 232 F.3d 1166 (9th Cir. 2000) .................................................................................................25
Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004)......................................................................................29
Utah v. Evans, 536 U.S. 452 (2002)...............................................................................................32, 38, 39, 40

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TABLE OF AUTHORITIES (continued)

Page(s)

Wesberry v. Sanders, 376 U.S. 1 (1964).....................................................................................................................22
Wisconsin v. City of New York, 517 U.S. 1 (1996).....................................................................................................................37
Wood v. Am. Fed’n of Gov’t Employees, 316 F. Supp. 3d 475 (D.D.C. 2018), aff’d, 2019 WL 668337 (D.C. Cir. Feb. 12, 2019) ...........................................................................................................9
Woodhull Freedom Found. v. United States, 948 F.3d 363 (D.C. Cir. 2020) .................................................................................................12
Yick Wo v. Hopkins, 118 U.S. 356 (1886).................................................................................................................15
Statutes
2 U.S.C. §2.....................................................................................................................................26
2 U.S.C. §2a ...................................................................................................................................26
2 U.S.C. §2a(a).......................................................................................................................1, 2, 27
2 U.S.C. § 2a(b) .......................................................................................................................27, 30
13 U.S.C. § 4..................................................................................................................................26
13 U.S.C. § 141...................................................................................................................... passim
13 U.S.C. § 141(b) ...................................................................................................................27, 30
13 U.S.C. § 195...................................................................................................................... passim
13 U.S.C. § 221..............................................................................................................................26
Other Authorities
1 Records of the Federal Convention of 1787 (M. Farrand ed. 1911)...............................16, 34, 35
1980 Census: Counting Illegal Aliens: Hearing Before the S. Subcomm. on Energy, Nuclear Proliferation, & Fed. Services of the Comm. on Gov’tl Affairs, 96th Cong. (1980) ......................................................................................................19
2 Joseph Story, Commentaries on the Constitution of the United States § 633 (1833) .......................................................................................................................................35
3 Joseph Story, Commentaries on the Constitution of the United States § 676 (1833) .......................................................................................................................................35
71 Cong. Rec. 1858 (1929) (statement of Sen. Vandenberg) ........................................................29
Athel Cornish-Bowden, Basic Mathematics for Biochemists (1981) ............................................36

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TABLE OF AUTHORITIES (continued)

Page(s)

Brief for Appellee U.S. House of Representatives, No. 98-404, Dep’t of Commerce v. House of Representatives, 1998 WL 767637 (U.S. filed Nov. 3, 1998)..............................................................................................32, 33, 34
Brief. of National Republican Legislators Ass’n as Amici Curiae, No. 98-404, Dep’t of Commerce v. House of Representatives, 1998 WL 767644 (U.S. filed Nov. 3, 1998)....................................................................................................34, 37
Brief of United States as Amicus Curiae, Evenwel v. Abbott, No. 14-940, 2015 U.S. S. Ct. Briefs LEXIS 3387 (filed Sept. 25, 2015) .............................................................21
Brief of City of Los Angeles et al. as Amicus Curiae for Appellees, Evenwel v. Abbott, No. 14-940 (filed Sept. 25, 2015) .............................................................22
Brief of Immigration Reform Law Institute as Amicus Curiae for Appellants, Evenwel v. Abbott, No. 14-940 (filed Aug. 7, 2015) ...............................................................22
Brief.in Support of Defendants’ Mot. to Dismiss (ECF 155), New York v. Dep’t of Commerce, No. 1:18-cv-02921-JMF (S.D.N.Y. filed May 25, 2018) . ...................................33
Census Act of Mar. 1, 1790, §5, 1st Cong., 2d Sess......................................................................24
Charles W. Eagles, Democracy Delayed: Congressional Reapportionment and Urban-Rural Conflict in the 1920s (2010). ..............................................................................18
Cong. Globe, 39th Cong. 1st Session (1866)...........................................................................17, 18

Counting Every Person: H’g on Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks Before the House Comm. on Oversight & Reform, 116th Cong. (2020) ...............................................................................21
Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act of 1998, § 209, Pub. L. No. 105-119, 111 Stat. 2440 (1997)....................................................................................................... passim
Dep’t of Commerce, Adjustment of the 1990 Census for Overcounts and Undercounts of Population and Housing, Notice of Final Decision, 56 Fed. Reg. 33582 (July 22, 1991).........................................................................................37
Dep’t of Commerce, Census Undercount Adjustment: Basis for Decision, 45 Fed. Reg. 69366 (Oct. 20, 1980)...................................................................................17, 33
Emily Bazelon and Jim Rutenberg, The Next Big Voting-Rights Fight, New York Times Magazine, Dec. 31, 2015...............................................................................4
Executive Order 13880, Collecting Information About Citizenship Status in Connection with the Decennial Census, 84 Fed. Reg. 33821 (July 1, 2019) ............................6
Federal Defendants’ Post-Argument Mem., FAIR v. Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980) ................................................20
Fed. R. Civ. P. 56.........................................................................................................................1, 9 vi

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TABLE OF AUTHORITIES (continued)

Page(s)

James Madison, The Federalist No. 51 (1788) ..............................................................................25
James Madison, The Federalist No. 54 (1788) ........................................................................16, 24
Joseph B. James, The Framing of the Fourteenth Amendment (1956) .........................................17
Jynnah Radford, Key Findings About U.S. Immigrants, Pew Research Ctr. (June 17, 2019)...................................................................................................................24, 25
Letter from Thomas M. Boyd, Acting Assistant Attorney General dated June 29, 1988, included in 1990 Census Procedures and Demographic Impact on the State of Michigan: Hearing Before the Committee on Post Office and Civil Service, House of Representatives, 100th Cong., 2d Sess., June 24, 1988 .............................20
Letter from Carol T. Crawford, Assistant Attorney General, dated Sept. 22, 1989, 135 Cong. Rec. S12235 (1989)................................................................................................21
Memorandum dated July 21, 2020 on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679 (July 23, 2020) ................................................................................................................. passim
New York Times, Census Bill Passed; Amendments Killed, June 7, 1929, ..................................18
Reply Br. for the Federal Appellants, Franklin v. Massachusetts, No. 91-1502 1992 U.S. S. Ct. Briefs LEXIS 390 (U.S. Apr. 20, 1992), .................................29
S. Rep. No. 2, 71st Cong., 1st Sess. (1929) .............................................................................28, 29
Statement of John G. Keane, Director of the Census Bureau, Enumeration of Undocumented Aliens in the Decennial Census, H’g Before the Subcommittee on Energy, Nuclear Proliferation, and Gov’t Processes of the Senate Committee on Govt’l Affairs, 99th Cong., 1st Sess., Sept. 18, 1985 .............................................24, 25
Tr. of Oral Argument, Franklin v. Massachusetts, No. 91-1502 (U.S. Apr. 21, 1992).................................................................................................................29
U.S. Const., amend. XIV ....................................................................................................... passim
U.S. Const., amend. XIV, § 2, cl. 1 ...........................................................................................1, 17
U.S. Const., art. I, § 2...........................................................................................................2, 21, 26
U.S. Const., art. I, § 2, cl. 3................................................................................................15, 26, 32
U.S. Const., art. I, § 5, cl. 1............................................................................................................25

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Plaintiffs Common Cause, et al. (“Plaintiffs”) hereby move pursuant to Fed. R. Civ. P. 56 for partial summary judgment with respect to Counts I, IV, and V of their First Amended Complaint (ECF No. 28). In the alternative, if the Court determines that any genuine dispute(s) of material fact prevent entry of summary judgment, Plaintiffs request an expedited trial on the merits with respect to such dispute(s).
PRELIMINARY STATEMENT Under the Constitution and Census Act, representatives in the U.S. House must 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, cl. 1 (emphasis added); see also 2 U.S.C. §2a(a). Consistent with that command, from the ratification of the Constitution in 1788 to the present day, all human beings residing in each state have been counted by the census and included in the congressional apportionment base. Only two exceptions have ever been made, both also based in the Constitution’s plain text: notoriously, slaves were counted as threefifths of a person (though that clause was stricken in 1868), and “Indians not taxed” were excluded altogether (though such persons no longer exist). No President has ever maintained that other, implicit exceptions have been lurking in the Constitution for the last 232 years. Until now. On July 21, 2020, President Donald J. Trump issued a memorandum titled Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (the “Memorandum”). Breaking with the plain text of the Constitution and the Census Act, as well as centuries of practice, the Memorandum declared that it was now “the policy of the United States to exclude from the [congressional] apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act.” The Memorandum also announced that, upon completion of the 2020 census, the President will “exclude” such persons when preparing ap-
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portionment tables for transmission to Congress, and it ordered the Department of Commerce to assist him in carrying out that plan.
The Memorandum is unlawful in multiple respects. For starters, the Constitution compels the inclusion of undocumented immigrants in the apportionment base. Again, the plain text of both Article I, § 2 and the Fourteenth Amendment states that the apportionment base shall consist of “the whole number of persons in each state,” and whatever their status under federal immigration law, undocumented immigrants are “people.” The contemporaneous statements of the Founding Fathers and the framers of the Fourteenth Amendment reflect this same understanding. All three branches of government have explicitly and repeatedly recognized it. And over two centuries of consistent practice confirm it.
The Census Act also commands that apportionment calculations be based on “the whole number of persons in each state.” 2 U.S.C. §2a(a). Congress assigned the task of performing those calculations to the President, but that task they delegated was purely a ministerial one. Congress did not grant the President authority to unilaterally remove categories of “persons” from the apportionment base when performing those calculations. The Memorandum, therefore, is not just unconstitutional; it also exceeds the President’s statutory authority and is ultra vires.
Finally, even if it were not inherently unlawful to exclude undocumented immigrants from the apportionment base, the Memorandum cannot be implemented lawfully because Defendants lack an actual count of undocumented immigrants in each State. Article I, § 2 demands that all data used in the apportionment process be generated through “actual Enumeration”—i.e., direct, household-by-household inquiry—rather than estimation or other substitute processes. Statutory law adds to this requirement by prohibiting the use of statistical sampling in connection with apportionment. See 13 U.S.C. § 195. Absent a direct headcount of undocumented immi-
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grants, anything that Defendants might do to implement the Memorandum would necessarily violate these constitutional and statutory requirements.
In sum, the President does not have the power to order a sea change in how legislative power is allocated in this country by unilaterally declaring that disfavored groups are not “persons” under the Constitution and stripping the states where they reside of the representation to which they are entitled. The Memorandum, and any attempt by Defendants to implement it, should be declared unlawful and enjoined.
BACKGROUND A. Throughout American History, All Immigrants Have Been Included in the
Congressional Apportionment Base From the ratification of the Constitution until today, no one has ever been excluded from the congressional apportionment base based on their citizenship or compliance with immigration laws. To the contrary, throughout American history, noncitizen immigrants (both documented and undocumented) have been counted in every census and in the base for every resulting congressional apportionment. Plaintiffs’ Rule 56.1 Statement of Undisputed Material Facts (“Stat.”) ¶ 1; see also Fed’n. for Am. Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564, 576 (D.D.C.) (three-judge court) (stating that, for over “two centuries,” the “population base for purposes of apportionment has always included all persons, including aliens both lawfully and unlawfully within our borders”), appeal dismissed, 447 U.S. 916 (1980). B. Partisans Seek to Exclude Noncitizens from Apportionment As described further below, proposals to exclude noncitizens from congressional apportionment have periodically been advanced over the years. They have all been roundly rejected. But that has not stopped the idea from resurfacing.
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The latest effort to shrink the apportionment base began in 2014. Backed by a prominent activist, two Texas voters filed a lawsuit alleging that the Constitution requires states to exclude persons ineligible to vote (including noncitizens) when apportioning state legislative bodies. See Evenwel v. Perry, No. A-14-CV-335, 2014 U.S. Dist. LEXIS 156192, at *8 (W.D. Tex. Nov. 5, 2014) (three-judge court); Emily Bazelon and Jim Rutenberg, The Next Big Voting-Rights Fight, New York Times Magazine, Dec. 31, 2015, https://nyti.ms/3kYA3jg. The Supreme Court unanimously rejected that claim. See Evenwel v. Abbott, 136 S. Ct. 1120 (2016). As the Court observed, the Fourteenth Amendment expressly includes all people in the congressional apportionment base; “[i]t cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.” Id. at 1129.
As part of the same strategic push, while Evenwel was pending before the Supreme Court, a partisan political strategist named Dr. Thomas Hofeller prepared a study analyzing “how a switch from the current norm of drawing legislative districts of equal total population … to using [eligible-voter population] data … could shift political power.” Kravitz v. Dep’t of Commerce, 382 F. Supp. 3d 393, 398 (D. Md. 2019); Stat. ¶ 2. Dr. Hofeller concluded that excluding those ineligible to vote from the apportionment base would take power “away from Hispanic voters” and shift it to “Non-Hispanic Whites.” Kravitz, 382 F. Supp. 3d at 398; Stat. ¶ 2. At the same time, Dr. Hofeller noted that precinct-by-precinct data on citizenship did not exist, and that “a citizenship question would need to be added to the 2020 Census” in order to “to generate the … data necessary to make this switch.” Kravitz, 382 F. Supp. 3d at 398; Stat. ¶ 2.
C. The Administration Attempts to Add a Citizenship Question to the Census Shortly after Evenwel was decided, President Donald Trump was elected. His Administration picked up Dr. Hofeller’s suggestion and attempted to add a citizenship question to the
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census. Two courts have found active coordination between Dr. Hofeller and the Administration in this process. See Kravitz, 382 F. Supp. 3d at 399 (finding that Dr. Hofeller “spoke several times” about adding the question with an advisor to the Secretary of Commerce and “worked with [him] to concoct the [Voting Rights Act] pretext that [the advisor] then provided to [the Justice Department] on the Secretary’s behalf”); New York v. Dep’t of Commerce, No. 18-cv-2921, 2020 U.S. Dist. LEXIS 89470, at *37 (S.D.N.Y. May 21, 2020) (similar); Stat. ¶¶ 3-5.
In March 2018, Secretary Ross announced his intent “to reinstate a question about citizenship on the 2020 decennial census questionnaire.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2562 (2019); Stat. ¶ 6. Ross’s publicly stated rationale for adding the question was to help the Department of Justice “enforc[e] the Voting Rights Act.” New York, 139 S. Ct. at 2564; Stat. ¶ 6. Soon thereafter, lawsuits were filed to block the citizenship question. After a bench trial, a federal district court in New York ruled “that the Secretary’s action was arbitrary and capricious” and “based on a pretextual rationale.” New York, 139 S. Ct. at 2564; Stat. ¶ 7.
The Supreme Court affirmed, agreeing that “the Secretary’s decision must be set aside because it rested on a pretextual basis.” New York, 139 S. Ct. at 2573; Stat. ¶ 8. In particular, the Supreme Court found that “the [Voting Rights Act] played an insignificant role in the decisionmaking process.” Instead, “the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process” as a “distraction” from his true motive. New York, 139 S. Ct. at 2574-76; Stat. ¶ 8.
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D. After Losing the Census Case, The Administration Continues its Efforts to Remove Noncitizens from the Apportionment Base
On July 5, 2019, just days after the Supreme Court rendered its decision, President Trump admitted what the true reason for the citizenship question had always been. At a press conference, he was asked: “What’s the reason … for trying to get a citizenship question on the census?” Contrary to what the Administration had maintained in the census litigation, the President answered: “Congress. You need it for Congress, for districting.” Stat. ¶ 9.
With the citizenship question now quashed, the Administration sought another way to implement its goal. Thus, on July 11, 2019, the President issued Executive Order 13880, titled Collecting Information About Citizenship Status in Connection with the Decennial Census. 84 Fed. Reg. 33821. In that Executive Order, the President acknowledged the true reason why the Administration had been so intently set on collecting citizenship data: enabling the “design … [of] legislative districts based on the population of voter-eligible citizens,” rather than total population. Id. at 33823-24; Stat. ¶ 11.
The Executive Order recognized that it was now “impossible … to include a citizenship question on the 2020 decennial census questionnaire.” 84 Fed. Reg. at 33821; Stat. ¶ 12. Thus, as a backup plan, the President ordered “all executive departments and agencies” to “provide the [Commerce] Department the maximum assistance permissible … in determining the number of citizens and non-citizens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective.” The Executive Order also “direct[ed] the [Commerce] Department to strengthen its efforts … to obtain State administrative records concerning citizenship.” 84 Fed. Reg. at 33821; Stat. ¶ 12.
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E. The President Issues the Memorandum The other shoe dropped on July 21, 2020, less than six months before the President was required to certify census results to Congress for reapportionment. On that date, the President issued a proclamation titled Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census (the “Memorandum”). Stat. ¶ 15. The Memorandum unilaterally declared that it is now “the policy of the United States to exclude from the [congressional] apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act….” Stat. ¶ 15. The Memorandum makes no serious attempt to square this new “policy” with the governing statutory and constitutional provisions or with over two centuries of contrary practice. Instead, it purports to justify its “policy” based on the President’s own belief that “[e]xcluding … illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.” Stat. ¶ 15. To implement this new “policy,” the Memorandum states that, following the 2020 census, when the President “transmits … to the Congress” his report of the “number of Representatives to be apportioned to each State,” he will unilaterally “exclude … aliens who are not in a lawful immigration status” from the base of apportionment. Stat. ¶ 18. The Memorandum further asserts that these manipulated figures created at the President’s direction, and not the actual “whole number of persons in each State,” as provided in the governing statute, shall then “‘settle[] the apportionment’ of Representatives among the States.” Stat. ¶ 19. To enable the President to prepare this manipulated apportionment, the Memorandum orders the Secretary of Commerce (and through him, the Commerce Department, the Census Bureau, and the Director of the Census Bureau) to “take all appropriate action … to provide information permitting the President … to carry out the policy set forth in … this memorandum.” Stat. ¶ 20. Presumably, this includes providing the President with “data on the number of citi-
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zens, non-citizens, and illegal aliens in the country,” which the President had earlier commanded the Department of Commerce to collect. Stat. ¶¶ 12-13, 20.
In an accompanying statement, President Trump declared: “Today, I am … directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.” Stat. ¶ 21. He expressly linked the Memorandum to his own partisan and nativist views, stating: “There used to be a time when you could proudly declare, ‘I am a citizen of the United States.’ But now, the radical left is trying to erase the existence of this concept and conceal the number of illegal aliens in our country. This is all part of a broader left-wing effort to erode the rights of American citizens, and I will not stand for it.” Stat. ¶ 21.
Two days after President Trump issued the Memorandum, his reelection campaign sent a mass email to supporters characterizing the Memorandum as an “EXECUTIVE ORDER BLOCKING ILLEGAL ALIENS FROM BEING COUNTED IN [THE] U.S. CENSUS.” Stat. ¶ 22. The email went on to state that “President Trump just signed an Executive Order that will block illegal aliens from receiving congressional representation, and ultimately, being counted in the U.S. Census.” Stat. ¶ 22. The email once again linked the Memorandum to the President’s own partisan, nativist views, asserting that this “Executive Order” was necessary because “Democrats are prioritizing dangerous, unlawful immigrants over American Citizens.” Stat. ¶ 22.
F. Defendants are Now Endeavoring to Implement the Memorandum The Commerce Department and Census Bureau have provided few public details about how they intend to calculate the number of undocumented immigrants in each state. Nevertheless, it is clear that they are actively working to do so. At a recent congressional hearing, Census Bureau Director Steven Dillingham testified that the Secretary of Commerce had already “giv[en] [the Bureau] the directive … to proceed with the requirements of the Presidential Memorandum,” and that the “process [was] underway” and “moving rapidly as possible.” Stat. ¶ 23.
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In particular, he testified that the Bureau “ha[d] received most of the data” and that its experts were “beginning the process of looking at methodologies.” Stat. ¶ 23.
STANDARD OF REVIEW Summary judgment is appropriate where “the movant shows that there is 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). “The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a ‘material’ fact.” Wood v. Am. Fed’n of Gov’t Employees, 316 F. Supp. 3d 475, 480 (D.D.C. 2018), aff’d, 2019 WL 668337 (D.C. Cir. Feb. 12, 2019). “Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be ‘genuine,’ meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant.” Id. “[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 481.
ARGUMENT I. PLAINTIFFS HAVE STANDING TO CHALLENGE THE MEMORANDUM
“For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue.” New York, 139 S. Ct. at 2565. “To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.’” Id.
A. Plaintiffs Will Imminently Suffer Injury-in-Fact As the Amended Complaint reflects, this case involves a number of different plaintiffs and several distinct theories of harm. But because only “one plaintiff” need demonstrate standing, Plaintiffs focus here on (1) the plaintiffs who are individual voters and (2) a membership
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organization, Common Cause, whose members include voters in every state. Stat. ¶¶ 27, 32-51.1 To simplify matters further, Plaintiffs focus on just one form of harm: vote dilution.
The Supreme Court has held that voters who live in a state that is “expected [to] los[e] … a Representative” due to a challenged apportionment practice “undoubtedly satisf[y] the injuryin-fact requirement of Article III standing,” because “[t]hey are asserting ‘a plain, direct and adequate interest in maintaining the effectiveness of their votes.’” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 331-32 (1999) (citation omitted) (finding that “[w]ith one fewer Representative, Indiana residents’ votes will be diluted”). Indeed, for purposes of Plaintiffs’ claim regarding statistical sampling, it is sufficient that a Plaintiff “reside[] [in] a State whose congressional representation or district could be changed as a result of the use of [the challenged] statistical method.” Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1998 (“1998 Appropriations Act”), § 209(d)(1), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note).
The first question, then, is whether at least one plaintiff or Common Cause member lives in a state that is “expected [to] los[e]” a House seat if the Memorandum is implemented. The answer to that question is yes. Stat. ¶¶ 27, 32-51. Plaintiffs’ expert, Dr. Christopher Warshaw, conducted an analysis showing that, if undocumented immigrants are removed from the apportionment base, several states are likely to lose seats. Stat. ¶¶ 58-63; cf. House of Representatives, 525 U.S. at 330 (holding that an Indiana voter-plaintiff demonstrated standing via an expert analysis showing that “it [was] a virtual certainty that Indiana [would] lose a seat … under the
1 Common Cause has standing to sue on behalf of its members because those members are individual voters who “would otherwise have standing to sue in their own right,” Stat. ¶¶ 27, 32-35, 39, 41, 43, 46, 47, 50, 51; the “interests at stake” in this litigation “are germane to [its] purpose” as a nonprofit that promotes democracy and good government, Stat. ¶¶ 28-31; and “neither the claim asserted nor the relief requested requires participation of [its] individual members in the lawsuit.” Friends of Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
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[Commerce] Department’s Plan”); id. at 332-33 (holding that other voter-plaintiffs demonstrating standing via an expert analysis showing that “it [was] substantially likely” that voters in their counties “w[ould] suffer vote dilution … as a result of the [Bureau’s] Plan”).
As Dr. Warshaw showed, Texas—the home state of multiple named voter-plaintiffs—has the highest likelihood of losing a seat, at 98%. Stat. ¶¶ 38, 41, 59. Dr. Warshaw also determined that the probability that at least one of the five states where the voter-plaintiffs live (Texas, California, New Jersey, New York, and Florida) would lose a seat was 100%. Stat. ¶¶ 33-51, 60. Likewise, because Common Cause has members in every state, Dr. Warshaw determined that the probability that at least one U.S. state would lose a seat was also 100%. Stat. ¶¶ 27, 32, 63. If that were not enough, the Memorandum states on its face that, under its new “policy,” one state will likely lose “two or three … congressional seats.” Stat. ¶ 16. It is clear from context that this state is California, where multiple named voter-plaintiffs live—but whichever state it is, Common Cause has members there. Stat. ¶¶ 27, 32, 36-37, 39, 42, 45, 59. All of this demonstrates that the dilution of at least one Plaintiff’s vote (or the vote of one Common Cause member) is a “virtual certainty”—and a fortiori, that it is “substantially likely.” House of Representatives, 525 U.S. at 330, 332-33. Surely it “could” occur. 1998 Appropriations Act, § 209(d)(1), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note).
The only remaining question is whether the implementation of the Memorandum is sufficiently “imminent.” New York, 139 S. Ct. at 2565. Again, the answer is yes. The deadline for the President to prepare and transmit apportionment tables to Congress is in January 2021—less than five months from now. Stat. ¶ 25. Even if there were some possibility that the President might change his mind between now and then, that would not defeat standing. All that is required is a “substantial risk” that the Memorandum will be implemented. Susan B. Anthony List
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v. Driehaus, 573 U.S. 149, 158 (2014); see also N.Y. Republican State Comm. v. SEC, 927 F.3d 499, 504-05 (D.C. Cir. 2019) (discussing “substantial risk” standard); see, e.g., Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 517-18 (N.D. Cal. 2017) (holding that California counties had standing to challenge President Trump’s Executive Order on sanctuary cities, even though the government “ha[d] not yet designated [them] as ‘sanctuary jurisdictions’ or withheld funds,” as there was a “credible threat” of enforcement), aff’d, 897 F.3d 1225 (9th Cir. 2018).
That “substantial risk” test is easily met here. For starters, “[i]n assessing whether enforcement [of a presidential directive] is likely, courts look to … the government’s statements and representations.” Id. at 521. Here, the Memorandum declares on its face that it is “the policy of the United States to exclude [undocumented immigrants] from the apportionment base … to the maximum extent feasible.” Stat. ¶ 15 (emphasis added). It also announces the President’s intent “to carry out the policy set forth … in th[e] [M]emorandum.” Stat. ¶ 20; cf. League of Conservation Voters v. Trump, 303 F. Supp. 3d 985, 998 (D. Alaska 2018) (finding standing to challenge an Executive Order that had not yet been implemented, where “[t]he Executive Order itself demonstrate[d] that the … activities [that it authorizes] are intended to be imminent”).
In his accompanying public statement, the President stated unequivocally that he was “directing the Secretary of Commerce to exclude illegal aliens from the apportionment base following the 2020 census.” Stat. ¶ 21. And his reelection campaign told Americans in no uncertain terms that “President Trump just signed an Executive Order that will block illegal aliens from receiving congressional representation.” Stat. ¶ 22. Since then, neither the President nor any of the other Defendants has “disavowed [the] intention” to implement it. Woodhull Freedom Found. v. United States, 948 F.3d 363, 373 (D.C. Cir. 2020); Stat. ¶¶ 23-24. To the contrary, as the Director of the Census Bureau testified to Congress, the Secretary of Commerce has already
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“giv[en] [the Bureau] the directive … to proceed with the requirements of the Presidential Memorandum,” and that “process is underway.” Stat. ¶ 23.
In evaluating imminence, courts also consider “the past conduct of the government.” Cnty. of Santa Clara, 250 F. Supp. 3d at 521. This Administration has already gone to great efforts to exclude noncitizens from apportionment. Secretary Ross added a citizenship question to the census, misled the public and the courts about the reason, and litigated the issue all the way to the Supreme Court. Stat. ¶ 3-8. After the Supreme Court blocked that path, the President immediately issued an Executive Order declaring it “imperative” that “all agencies … share information” about citizenship with the Commerce Department. Stat. ¶ 12. The Memorandum was the next step in this effort. Finally, on August 3, 2020—less than two weeks after the Memorandum was issued—the Census Bureau abruptly reversed its earlier decision to extend all census deadlines in light of the COVID-19 pandemic, shortening data collection by a month and putting the integrity of the decade-long census effort at severe risk. The Administration offered no public explanation for this sudden about-face, but the only plausible motivation is to ensure that the count is finalized in time for President Trump to implement the Memorandum before his current term in office ends on January 20, 2021. Stat. ¶ 25. All of this history confirms that Defendants are deeply committed to the policy set forth in the Memorandum and will make every effort to implement it. A fortiori, there is a “substantial risk” that they will do so.
Finally, Congress has expressed its view that challenges to statistical methods employed in the census be resolved as early as possible—and that view matters. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (noting that “Congress[’s] … judgment is … instructive and important” when assessing injury-in-fact). In particular, Congress found that “it would be impracticable for … the courts of the United States to provide[] meaningful relief after [the census]
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has already been conducted.” See 1998 Appropriations Act § 209(a)(8), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note). It determined that an “Operational Plan” of the Census Bureau is “sufficiently concrete and final to … be reviewable in a judicial proceeding” even before its implementation. Id. § 209(c)(2). And it provided that “[i]t shall be the duty” of the Article III courts “to expedite to the greatest possible extent the disposition” of any challenge to such a statistical method. Id. § 209(e)(2). Article III’s imminence requirement must be interpreted with these directives in mind.
B. Plaintiffs’ Injuries are Fairly Traceable to the Challenged Conduct The traceability element of standing requires “a causal connection between the injury and the conduct complained of.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Here, there is no question that Plaintiffs’ impending loss of representation in Congress is “fairly traceable” to the implementation of the Memorandum. Both Dr. Warshaw’s analysis and the Memorandum’s own language show that the exclusion of undocumented immigrants from the apportionment base is intended to cause, and will cause, the loss of representation at issue. Cf. House of Representatives, 525 U.S. at 332 (“[A]s [Plaintiffs’ expert’s] affidavit demonstrates, … [t]here is undoubtedly a ‘traceable’ connection between the [challenged apportionment practice] and Indiana’s expected loss of a Representative”). C. Plaintiffs’ Injuries are Redressable Finally, the redressability element of standing requires that it “be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. Here, an injunction prohibiting Defendants from implementing the Memorandum would prevent the harm of which Plaintiffs complain. Cf. House of Representatives, 525 U.S. at 332 (“[T]here is a substantial likelihood that the requested relief—a permanent injunction against the proposed uses of sampling in the census—will redress the alleged injury.”).
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Plaintiffs recognize that the law is somewhat unclear as to whether and when the President himself may be enjoined. See Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992). However, even if this Court may not enjoin the President, that does not defeat redressability. The Court may still enjoin the other Defendants, and all others working with the President, from providing him with the data and assistance necessary to carry out the Memorandum. Moreover, the Court “may assume it is substantially likely that the President … would abide by an authoritative interpretation of the census statute and [relevant] constitutional provision[s] …, even [if he] would not be directly bound by such a determination.” Id. at 803; see also Adams v. Clinton, 90 F. Supp. 2d 35, 43-44 (D.D.C. 2000) (three-judge court). II. THE MEMORANDUM VIOLATES THE CONSTITUTION BY EXCLUDING
UNDOCUMENTED IMMIGRANTS FROM THE APPORTIONMENT BASE A. Article I, Section 2 Requires Inclusion of Undocumented Immigrants in the Apportionment Base As originally ratified, the Constitution provided that “Representatives” in the U.S. House
“shall be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” U.S. Const., art. I, § 2, cl. 3 (emphasis added). In other words, “Indians not taxed” were excluded from the apportionment base altogether, and slaves (i.e., “other Persons”) were counted as a fraction of a “free person.” But the Framers did not exclude anyone else—such as noncitizens.
As this Court has previously recognized, the presence of these two express exclusions signifies that no other, implicit exclusions were intended—i.e., that “the whole number of free persons” was meant to be “all-inclusive.” FAIR, 486 F. Supp. at 576; cf. Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (discussing and applying the canon expressio unius est exclusio alterius). Undocumented immigrants “are clearly ‘persons,’” and thus within the compass of the
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Framers’ language. FAIR, 486 F. Supp. at 576; see also 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 sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ [within the meaning of] the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (holding that the Fourteenth Amendment’s references to “persons” are “universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of … nationality”).
The Framers’ contemporaneous statements point to the same conclusion. Madison stated that it was “a fundamental principle of the proposed Constitution, that … the aggregate number of representatives allotted to the several States [would] be determined by a federal rule, founded on the aggregate number of inhabitants,” The Federalist No. 54 (emphasis added)—not, for example, the aggregate number of “citizens,” or “persons in compliance with federal immigration law.” Indeed, Madison recognized that “in every State, a certain proportion of inhabitants”— noncitizens included—“are deprived of [the] right [to vote],” but that they would nonetheless “be included in the census by which the federal Constitution apportions the representatives.” Id.; see also Evenwel, 136 S. Ct. at 1127. Madison was not alone: “[e]ndorsing apportionment based on total population, Alexander Hamilton declared: ‘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.’” Id. (quoting 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911)).
B. The Fourteenth Amendment Requires Inclusion of Undocumented Immigrants in the Apportionment Base
Any doubt about the original intent of the Founding Fathers was dispelled by the ratification of the Fourteenth Amendment following the Civil War. That amendment eliminated the
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odious “three-fifths” clause, but otherwise “retained total population as the congressional apportionment base.” Evenwel, 136 S. Ct. at 1128.
Specifically, the Fourteenth Amendment provided 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, cl. 1 (emphasis added).2 Notably, Congress used the word “persons,” not “citizens,” in the apportionment formula—even though it used “citizens” in other provisions of the Fourteenth Amendment. See, e.g., id. § 1 (providing that states may not “abridge the privileges or immunities of citizens of the United States,” but that all “person[s]” in the United States are entitled to due process and equal protection (emphasis added)). That choice was intentional.
During the debates over the Fourteenth Amendment, Congress considered this apportionment formula at length. See Evenwel, 136 S. Ct. at 1127-28. In particular, Congress debated whether to revise it to exclude persons ineligible to vote—a category, all recognized, that included the “unnaturalized foreign-born.” Cong. Globe, 39th Cong., 1st Sess. 1256 (1866) (remarks of Sen. Wilson). The proposal was driven by the fact that substantial immigration from Europe to the Northeast had resulted in a high concentration of unnaturalized immigrants in those states. See Joseph B. James, The Framing of the Fourteenth Amendment 23, 185 (1956).
The proposal was soundly rejected, however, on the ground that “non-voting classes”— immigrants included—“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. Blaine)). Senator Johnson of Maryland explained that non-
2 Although the “Indians not taxed” exception remains, no such persons have existed for many years. See Dep’t of Commerce, Census Undercount Adjustment: Basis for Decision, 45 Fed. Reg. 69366, 69372 (Oct. 20, 1980) (“Since the passage of the income tax laws, there are no longer any Indians not taxed … to be excluded from the apportionment population.”).
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voters are among those whom the government represents, and “the basis of representation” must depend upon “the entire number of people to be represented.” Cong. Globe, 39th Cong., 1st Sess. 2767-68 (1866). As the amendment’s lead drafter, Representative Bingham of Ohio, made clear: “Under 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,” including those “not naturalized.” Id. at 432 (emphasis added).
C. Congressional Action Since the Fourteenth Amendment Confirms that Undocumented Immigrants Must be Included in the Apportionment Base
On several occasions since the Fourteenth Amendment’s passage, Congress has considered measures to exclude “aliens,” including undocumented immigrants, from the census count and apportionment base. All such proposals have failed, as it was “generally accepted that such a result would require a constitutional amendment.” FAIR, 486 F. Supp. at 576-77.
For example, in advance of the 1930 census, Congress considered removing “aliens” from the apportionment base. See New York Times, Census Bill Passed; Amendments Killed, June 7, 1929, https://nyti.ms/2FtL1wV. This proposal “was known as the Evans plan after the head of the Ku Klux Klan, Hiram Wesley Evans.” Charles W. Eagles, Democracy Delayed: Congressional Reapportionment and Urban-Rural Conflict in the 1920s 70 (2010). But the Senate Legislative Counsel concluded that “statutory exclusion of aliens from the apportionment base would be unconstitutional,” and the proposal failed. FAIR, 486 F. Supp. at 576-77 (citing 71 Cong. Rec. 1821 (1929)).
Again in 1940, Congress considered whether “aliens who are in this country in violation of law have the right to be counted and represented.” FAIR, 486 F. Supp. at 576-77 (quoting 86 Cong. Rec. 4372 (1940)). Representative Emanuel Celler of New York explained:
The Constitution says that all persons shall be counted. I cannot quarrel with the founding fathers…. We count the convicts who
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are just as dangerous and just as bad as the Communists or as the Nazis, as those aliens here illegally, and I would not come here and have the temerity to say that the convicts shall be excluded, if the founding fathers say they shall be included…. Id. (emphasis added). On that basis, Congress rejected the proposal. Id. Once again in 1980, the subject arose in Congress. In opposition to exclusion, Senator Jacob Javits of New York explained that the Constitution permitted no apportionment rule “other than as described in the Federalist papers, the aggregate number of inhabitants, which includes aliens, legal and illegal.” 1980 Census: Counting Illegal Aliens: Hearing Before the S. Subcomm. on Energy, Nuclear Proliferation, & Fed. Services of the Comm. on Gov’tl Affairs, 96th Cong. 10 (1980) (emphasis added). Once again, Congress failed to enact the proposal. D. The Executive Branch Has Repeatedly Stated that Excluding Undocumented Immigrants from the Apportionment Base Would Violate the Constitution The Executive Branch—under Presidents of both parties—has repeatedly agreed that the Constitution requires that noncitizens, including undocumented immigrants, be included in the congressional apportionment base. For example, in 1980, under Democratic President Jimmy Carter, certain plaintiffs filed a lawsuit in this District seeking to exclude “illegal aliens” from the census and the apportionment base. FAIR, 486 F. Supp. at 565. Opposing the suit, the U.S. Department of Justice (“DOJ”) told this Court that the plaintiffs “s[ought] 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 Defendants’ Post-Argument Mem. at 1, FAIR v. Klutznick, No. 79-3269 (D.D.C. filed Feb. 15, 1980). “[F]or 200 years,” the DOJ told this Court, “the decennial census has counted all residents of the states irrespective of their citizenship or immigration status,” and those counts had been employed in apportionment. Id. Given “the clear and unequivocal language of Section 2 of
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the Fourteenth Amendment,” the DOJ urged, the “radical revision” that the plaintiffs sought could come only from “a constitutional amendment.” Id. What is more, the DOJ explained, such a revision would be “patently unfair” to residents of communities in which undocumented immigrants live, as undocumented immigrants “demand[] precisely the same level of the services from the municipalities and states in which [they] reside as do all other citizens.” Id. at 12.
In 1988, under Republican President Ronald Reagan, the Director of the Office of Management and Budget sought the views of the DOJ on another proposal to exclude “illegal aliens” from congressional apportionment. The DOJ again concluded that the proposed legislation was “unconstitutional.” Letter from Thomas M. Boyd, Acting Assistant Attorney General, dated June 29, 1988, at 5.3 In the DOJ’s view, it was “clear” that, under the Fourteenth Amendment, “all persons, including aliens residing in this country, [must] be included” in the apportionment base. Id. at 2 (emphasis added). The DOJ noted that the Reconstruction Congress “rejected arguments that representation should be based on people with permanent ties to the country” and “consciously chose to include aliens.” Id. at 2-3. Moreover, the DOJ explained, the Fourteenth Amendment makes no distinction between “aliens” who are and are not lawfully present in the United States. Id. at 3-4 (citing Plyler, 457 U.S. at 210).
In 1989, under Republican President George H. W. Bush, the DOJ issued a similar opinion. Once again, a Senator had “requested the views of the [DOJ] concerning the constitutionality of proposed legislation excluding illegal … aliens from the decennial census count.” Letter from Carol T. Crawford, Assistant Attorney General, dated Sept. 22, 1989, at 1, 135 Cong. Rec. S12235 (1989). The DOJ responded that “section two of the Fourteenth Amendment which pro-
3 Included in 1990 Census Procedures and Demographic Impact on the State of Michigan: Hearing Before the Committee on Post Office and Civil Service, House of Representatives, 100th Cong., 2d Sess., June 24, 1988 at 240.
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vides for ‘counting the whole number of persons in each state’ and 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.” Id. (emphasis added).
In 2015, under Democratic President Barack Obama, the DOJ once again took the position—this time in briefing to the Supreme Court—that Article I, § 2 and the Fourteenth Amendment “were purposely drafted to refer to ‘persons,’ rather than to voters, and to include people who could not vote”—specifically including “aliens.” Brief for the United States as Amicus Curiae, Evenwel v. Abbott, No. 14-940, at 18 (quoting Cong. Globe, 39th Cong., 1st Sess. 141, 359), 2015 U.S. S. Ct. Briefs LEXIS 3387 (filed Sept. 25, 2015). In the DOJ’s words, this is because “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.” Id. at 19.
Multiple Directors of the Census Bureau, serving under Presidents of both parties, have expressed the same position. In a recent hearing before the House Committee on Oversight and Reform, four former Directors of the Bureau testified that exclusion of undocumented immigrants from the apportionment base would be unconstitutional.4 Those who so testified were:
 Vincent Barabba, Director of the Census Bureau from 1973–76 and 1979–81, under Presidents Nixon, Ford, and Carter, who oversaw the 1980 census;
 Kenneth Prewitt, Director of the Census Bureau from 1998–2001, under President Clinton, who oversaw the 2000 census;
 Robert M. Groves, Director of the Census Bureau from 2009–12, under President Obama, who oversaw the 2010 census; and
 John H. Thompson, Director of the Census Bureau from 2013–17, under Presidents Obama and Trump, who prepared for the 2020 census.
4 Counting Every Person: H’g on Safeguarding the 2020 Census Against the Trump Administration’s Unconstitutional Attacks Before the House Comm. on Oversight & Reform, 116th Cong. (2020), https://www.youtube.com/watch?v=SKXS8e1Ew7c.
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Political appointees of the present Administration excluded, Plaintiffs are not aware of anyone in the DOJ or Census Bureau who has ever taken the opposite view.
E. The Judiciary Has Confirmed that Excluding Undocumented Immigrants from the Apportionment Base Would be Unconstitutional
The judiciary, too, has echoed this consensus. For over fifty years, the Supreme Court has found it “abundantly clear … that in allocating Congressmen the number assigned to each state should be determined solely by the number of the State’s inhabitants”—i.e., not by the number of citizens or voters. Wesberry v. Sanders, 376 U.S. 1, 13 (1964) (emphasis added). Just four years ago, the Supreme Court reaffirmed that the Constitution “select[s] … total population as the basis for allocating congressional seats, … whether or not [individuals] qualify as voters.” Evenwel, 136 S. Ct. at 1129 (emphasis added). Because undocumented immigration was at the center of the controversy in Evenwel, the Supreme Court surely had those persons in mind as part of the “total population” when it made this declaration.5
Lower courts, including a three-judge panel of this Court, have also determined that “illegal aliens … are clearly ‘persons,’” and that “the population base for purposes of [congressional] apportionment” must therefore “include[] all persons, including aliens both lawfully and unlawfully within our borders.” FAIR, 486 F. Supp. at 576 (emphasis added); see also New York v. Dep’t of Commerce, 351 F. Supp. 3d 502, 514 (S.D.N.Y. 2019) (observing that “the Constitution mandates that [the Census must] count every single person residing in the United States … whether living here with legal status or without,” and that “[t]he population count derived from
5 Compare Brief of City of Los Angeles et al. as Amicus Curiae for Appellees, Evenwel v. Abbott, No. 14-940 (filed Sept. 25, 2015), at 21-22 (discussing the rights of undocumented immigrants as members of the political community) with Br. of Immigration Reform Law Institute as Amicus Curiae for Appellants, Evenwel v. Abbott, No. 14-940 (filed Aug. 7, 2015), at 1 (complaining of the “harms … posed by mass migration to the United States, both lawful and unlawful”).
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that effort is used … to apportion Representatives”), aff’d in relevant part, 139 S. Ct. 2551 (2019). To Plaintiffs’ knowledge, no court has ever held otherwise.
F. 232 Years of Unbroken Practice Confirm This Reading of the Constitution What the above sources suggest, “settled practice confirms.” Evenwel, 136 S. Ct. at 1132. To wit, immigrants—whether documented or undocumented—have in fact been counted in every census, and included in every congressional apportionment, since the Constitution was ratified in 1788. FAIR, 486 F. Supp. at 576; Stat. ¶ 1. Such “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of [the relevant] constitutional provisions….” NLRB v. Noel Canning, 573 U.S. 513, 524 (2014); see also New York, 139 S. Ct. at 2567 (“[In the census context], as in other areas, our interpretation of the Constitution is guided” by “early understanding of and long practice”). G. The Memorandum’s Constitutional Reasoning is Meritless The Memorandum makes no effort to square its “policy” with any of this. Instead, it declares that the relevant constitutional language—“the whole number of persons in each State”— is ambiguous, and that “[d]etermining” its true meaning “requires the exercise of judgment.” Stat. ¶ 17. To the contrary, as this Court has found, “[t]he language of the constitution is not ambiguous” on this question. FAIR, 486 F. Supp. at 576. The Memorandum’s attempt to create ambiguity in that language is sophistic. It points out that “aliens who are only temporarily in the United States, such as for business and tourism, and certain foreign diplomatic personnel are ‘persons’ who have been excluded from the apportionment base in past censuses.” Stat. ¶ 17. From this, the Memorandum speciously reasons that there must be leeway to exclude other categories of “persons,” such as undocumented immigrants. But both of the Memorandum’s purported examples are easily explained.
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All that the “foreign visitors” example shows is that a state’s “numbers,” as a matter of plain meaning, encompasses all the people—and only the people—who actually live there. That is how the Framers understood the Constitution’s language. See Madison, The Federalist No. 54 (stating that the “number of representatives allotted” to a state would be “determined by … [its] aggregate number of inhabitants” (emphasis added)). That is how the first Congress understood the Constitution’s language when it drafted the original Census Act. See Census Act of Mar. 1, 1790, § 5, 1st Cong., 2d Sess. (specifying that persons be enumerated at their “usual place of abode,” i.e., “that place in which [they] usually reside[]”).
That is how the Census Bureau understood its constitutional mandate throughout the intervening centuries. See Statement of John G. Keane, Director of the Census Bureau, Enumeration of Undocumented Aliens in the Decennial Census, H’g Before the Subcommittee on Energy, Nuclear Proliferation, and Gov’t Processes of the Senate Committee on Govt’l Affairs, 99th Cong., 1st Sess., Sept. 18, 1985, at 22-23. And that is how the Census Bureau understood its mandate for purposes of conducting the 2020 census after full notice-and-comment rulemaking. See Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525, 5526 (Feb. 8, 2018) (stating that “[t]he state in which a person resides” for purposes of the census is “the place where [that] person lives and sleeps most of the time”). In sum, “foreign tourists … do not ‘reside’ here.” FAIR, 486 F. Supp. at 567. Undocumented immigrants do.6
The example of foreign diplomatic personnel does not help the Defendants either. The Memorandum acknowledges that only “certain” such personnel have been excluded from apportionment. Conveniently, however, it fails to note which ones those are: diplomats living in for-
6 See Jynnah Radford, Key Findings About U.S. Immigrants, Pew Research Ctr. (June 17, 2019), https://perma.cc/USU7-L9BM (noting that, in 2017, 66% of “unauthorized immigrants” had lived in the United States more than 10 years).
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eign nations’ embassies. See FAIR, 486 F. Supp. at 567 (“everyone is counted except foreign diplomatic personnel living on embassy grounds”); Statement of John G. Keane, supra, at 24 (same). As a matter of international law, foreign embassies have long been “considered ‘foreign soil,’ and thus not within any state.” Id.; see also United States v. Corey, 232 F.3d 1166, 1182 (9th Cir. 2000) (noting that historically, “the official residences of envoys were in every respect considered to be outside the territory of the receiving state” (quoting 1 Oppenheim’s International Law § 494, at 1076 (Robert Jennings & Arthur Watts eds., 9th ed. 1992))). Thus, the exclusion of foreign embassy residents from the apportionment base does not create any constitutional ambiguity or imply any authority to exclude immigrants who do, in fact, live on U.S. soil.
In any event, if there were any ambiguity in the Constitution, the body entitled to exercise “judgment” in this area would be Congress—not the President. The Constitution places the task of apportionment within Article I, which deals with the powers of Congress, since that task determines the composition of Congress itself. Article II, which deals with the President’s powers, says nothing about apportionment. This is no accident: the Framers were deeply concerned about the “concentration of the several powers [of government] in the same department [i.e., branch],” and they took pains prevent any one branch from exercising undue influence over another. James Madison, The Federalist No. 51 (1788).
Relevant here, to help ensure that “each department [w]ould have a will of its own,” the Framers endeavored to give “the members of each [department] . . . as little agency as possible in the appointment of the members of the others.” Id.; cf. U.S. Const., art. I, § 5, cl. 1 (“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”). If the President had inherent power to exercise “judgment” regarding the legislative apportionment base, he could alter the composition of the House of Representatives at his whim, thereby ag-
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grandizing power to the executive. That would have been anathema to the Framers, and the Constitution gives the President no such power.
* * * For all of the above reasons, Article I, § 2 and the Fourteenth Amendment require that undocumented immigrants—like all other “persons”—be included in the Congressional apportionment base. The Memorandum, therefore, is unconstitutional and should be enjoined. III. THE MEMORANDUM VIOLATES FEDERAL STATUTES BY EXCLUDING UNDOCUMENTED IMMIGRANTS FROM THE APPORTIONMENT BASE For much the same reasons that the Memorandum violates the Constitution, it also violates 13 U.S.C. § 141 and 2 U.S.C. § 2a, the statutes that Congress has duly enacted to regulate the census and apportionment. A. The Statutory Scheme Requires the President to Calculate Apportionment
Using “the Whole Number of Persons in Each State” The Constitution tasks Congress with passing legislation to “direct” the “manner” in which the census and the resulting apportionment shall occur. See U.S. Const., art. I, § 2, cl. 3. Congress has assigned the responsibility of conducting the census to the Secretary of Commerce, and the Census Bureau acting under him or her. See 13 U.S.C. §§ 2, 4, 141. As is well known, the Census Bureau sends a questionnaire to every household in the United States, to which every resident (documented or otherwise) is legally required to respond. See 13 U.S.C. § 221. The Census Bureau then counts responses from every household to determine the population count in the various states. Within nine months of the census date (in this case, by December 31, 2020), the Secretary of Commerce is required by statute to report to the President “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).
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Thereafter, the President is required by statute to transmit to Congress two sets of numbers. First, the President must provide “a statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the … decennial census of the population.” 2 U.S.C. § 2a(a) (emphasis added). Second, based on that figure, the President must calculate “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.” Id. “Each State” shall thereupon “be entitled” to the number of representatives “shown in” the President’s statement to Congress. 2 U.S.C. § 2a(b).
This statutory scheme does not authorize the Secretary of Commerce to transmit to the President for use in apportionment any number other than “the total population by States,” as determined by the census. Nor does it authorize the President to base the apportionment calculation that he or she transmits to Congress on something other than “the whole number of persons in each State,” as determined by the census. As discussed above, this phrasing comes straight from the Constitution itself, and there is no ambiguity about what it means.
B. The Statutory Scheme Does Not Delegate the President Any Discretion Regarding the Apportionment Base
Nor do these statutes contain an implicit grant of discretion to the President to alter the apportionment base in accordance with his personal view of what is (in the Memorandum’s words) “mo[st] consonant with the principles of representative democracy.”
As this Court has held, since “[t]he apportionment function” is so important to the Legislative Branch, “impact[ing] not only the distribution of representatives among the states, but also the balance of political power within the House,” it is not plausible that Congress would have left such fundamental choices “to the discretion of the [Executive Branch] without a more direct congressional pronouncement.” U.S. House of Representatives v. Dep’t of Commerce, 11 F.
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Supp. 2d 76, 100 (D.D.C. 1998) (three-judge court), aff’d, 525 U.S. 316 (1999); cf. Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“The idea that Congress gave the Attorney General such broad and unusual authority through an implicit delegation … is not sustainable.”).
The statutory history, too, underscores that Congress never delegated such discretion to the President. The present framework, under which the President calculates apportionment tables and transmits them to Congress, dates back to 1929. Before then, following each census, Congress calculated its own apportionment and enacted it through a new statute. See Franklin, 505 U.S. at 808-09 (Stevens, J., concurring in part). “After the 1920 census, however, Congress failed to pass a reapportionment Act” as a result of internal “deadlock.” Id.; see also Dep’t of Commerce v. Montana, 503 U.S. 442, 451-52 & n.25 (1992). This impasse “provided the impetus for the 1929 [Census] Act,” which “established [the] self-executing apportionment [process]” that remains in place today. See Franklin, 505 U.S. at 809 (Stevens, J., concurring in part) (citing S. Rep. No. 2, 71st Cong., 1st Sess. 2-4 (1929)); see also Montana, 503 U.S. at 451 n.25.
In particular, the new Act “produced an automatic reapportionment through the application of a mathematical formula to the census.” Franklin, 505 U.S. at 809-10 (Stevens, J., concurring in part). The original bill tasked the Secretary of Commerce with “appl[ying] [the] mathematical formula to the census figures and . . . transmit[ting] the resulting apportionment calculations to Congress.” Id. “A later version made the President responsible for performing the mathematical computations and reporting the result.” Id. But as this history makes clear, Congress did not intend to endow the President with discretion to make wholesale changes to the apportionment base. To the contrary, Congress’s sole intention in involving the President was “to make the apportionment proceed automatically based on the census.” Id. at 810.
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Indeed, the sponsor of the 1929 Act stressed that the “function [to be] served by the President” in the apportionment determination was “as purely and completely a ministerial function as any function on earth could be.” 71 Cong. Rec. 1858 (1929) (statement of Sen. Vandenberg) (emphasis added). The President was simply “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.’” Franklin, 505 U.S. at 799 (quoting S. Rep. No. 2, 71st Cong., 1st Sess. at 4-5 (1929)); see also S. Rep. No. 2, 71st Cong., 1st Sess. at 4 (1929) (stating that the President shall act “pursuant to a purely ministerial and mathematical formula”).
The Executive Branch has similarly agreed that the President’s statutory role in translating the census data to an apportionment determination is purely ministerial. See Reply Br. for the Federal Appellants at 24, Franklin v. Massachusetts, No. 91-1502, 1992 U.S. S. Ct. Briefs LEXIS 390 (U.S. Apr. 20, 1992), (“[I]t is true that the method … calls for application of a set mathematical formula to the state population totals produced by the census”). As now-Chief Justice Roberts argued to the Supreme Court in his capacity as Deputy Solicitor General: “The law directs [the President] to apply, of course, a particular mathematical formula to the population figures he receives [from the Secretary of Commerce]…. It would be unlawful [for the President] … just to say, ‘these are the figures, they are right, but I am going to submit a different statement.’” Tr. of Oral Argument at 12-13, Franklin v. Massachusetts, No. 91-1502 (U.S. Apr. 21, 1992). Until now, “[n]o President—indeed, no member of the Executive Branch—has ever suggested that the statute authorizes the President to modify the census figures when he performs the apportionment calculations.” Franklin, 505 U.S. at 812-13 (Stevens, J., concurring in part).
The courts, as well, have recognized that the Census Act gives the President “no discretion in calculating the numbers of Representatives,” and that his or her role in “the apportion-
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ment calculation” is therefore “admittedly ministerial”—even if his role in other aspects of the census process is not. Franklin, 505 U.S. at 799; see also Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172, 1189 (D. Utah 2004) (noting that the Census Act assigns the President “only ministerial functions, such as making apportionment calculations according to set formulae”).
C. The Actions in the Memorandum are Ultra Vires and Should be Enjoined For the reasons above, by ordering the Commerce Department to prepare and transmit to the President a number other than “the tabulation of total population by States” for use in the apportionment process, the President has directed the Commerce Department to violate 13 U.S.C. § 141(b). And by pledging to transmit an apportionment calculation to Congress based on something other than “the whole number of persons in each State,” the President will imminently violate 2 U.S.C. § 2a(b). Thus, the entire course of action set forth in the Memorandum exceeds the statutory authority delegated to Defendants by Congress. As the Supreme Court has explained, “[t]he responsibility of determining the limits of statutory grants of authority … is a judicial function entrusted to the Courts by Congress by the statutes establishing courts and marking their jurisdiction.” Stark v. Wickard, 321 U.S. 288, 310 (1944). Thus, “judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers,” such as Defendants’ actions here. Harmon v. Brucker, 355 U.S. 579, 581-82 (1958); see also Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 (1986) (courts “ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command”). The D.C. Circuit, too, has recognized that “[w]hen an executive acts ultra vires, courts are normally available to reestablish the limits on his authority.” Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988); see also Trudeau v. FTC, 456 F.3d 178, 189-90 (D.C. Cir. 2006)
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(“‘[J]udicial review is available when an agency acts ultra vires,’ even if a statutory cause of action is lacking.” (citation omitted)). And it has applied that principle in the specific context of presidential proclamations and executive orders, similar to the Memorandum. See, e.g., Mtn. States Legal Found. v. Bush, 306 F. 3d. 1132, 1136 (D.C. Cir. 2002) (challenge to six presidential proclamations designating national monuments); Chamber of Comm. of U.S. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (invalidating executive order barring federal government from contracting with employers who hire strike-breakers).
Plaintiffs, therefore, are entitled to a declaration that the actions required by the Memorandum are unlawful and ultra vires and an injunction against their implementation. IV. THE MEMORANDUM VIOLATES THE CONSTITUTION AND FEDERAL LAW
BECAUSE IT CANNOT BE IMPLEMENTED VIA “ACTUAL ENUMERATION” AND MUST RELY ON PROHIBITED STATISTICAL SAMPLING
As Plaintiffs have shown, the Memorandum is unlawful on its face. But even if it were lawful in principle to exclude undocumented immigrants from apportionment, the way in which the Memorandum will be implemented by Defendants will violate independent provisions of the Constitution and statutory law. Namely, any attempt by Defendants to implement the Memorandum would necessarily violate the constitutional requirement of an “actual Enumeration” and the statutory prohibition on statistical sampling.
A. Implementing the Memorandum Would Violate the Constitutional Requirement of “Actual Enumeration” 1. The Constitution Requires that Apportionment Data be Determined Exclusively via “Actual Enumeration”
From the beginning, the Constitution has provided that all data used in congressional apportionment “shall be determined” via an “actual Enumeration.” U.S. Const., art. I, § 2, cl. 3 (emphasis added).
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At the time the Constitution was ratified, this phrase had a well-settled meaning. “To ‘enumerate,’ according to Samuel Johnson, was to ‘reckon up singly’ or ‘count over distinctly.’” Brief for Appellee U.S. House of Representatives, No. 98-404, Dep’t of Commerce v. House of Representatives (“1998 House Br.”), 1998 WL 767637, at *45 (U.S. filed Nov. 3, 1998) (quoting A Dictionary of the English Language (4th ed. 1773)). “Similarly, Noah Webster wrote that ‘to enumerate’ meant ‘[t]o count or tell, number by number; to reckon or mention a number of things, each separately,’” and that the noun “enumeration” constituted “the act of ‘counting or telling a number, by naming each particular[.]’” Id. (quoting 1 An American Dictionary of the English Language (1828)). The Framers underscored that they meant this requirement literally, rather than figuratively, by emphasizing that the “enumeration” must be an “actual” one.
The Supreme Court has confirmed as much, observing that “the Framers expected census enumerators to seek to reach each individual household” one by one when making determinations that bear on apportionment. Utah v. Evans, 536 U.S. 452, 477 (2002); see also House of Representatives, 525 U.S. at 346-47 (Scalia, J., concurring) (in the Framers’ day, “an ‘enumeration’ require[d] an actual counting, and not just an estimation”). Thus, to the extent other “methods substitute for any such effort, … the Framers did not believe that the Constitution authorized their use.” Evans, 536 U.S. at 477.
As the Supreme Court stressed just last year, “early understanding” and “long and consistent historical practice” are also important when interpreting the Enumeration Clause. New York, 139 S. Ct. at 2567; see also Noel Canning, 573 U.S. at 524. And centuries of practice, starting with the first Congress, confirm that an “actual Enumeration” requires a literal headcount. “From the very first census” in 1790, Congress required that “enumeration … be made by an actual inquiry at every dwelling-house … and not otherwise.” House of Representatives,
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525 U.S. at 335 (emphasis added) (quoting Act of Mar. 26, 1810, § 1, 2 Stat. 565-566); see also New York, 351 F. Supp. 3d at 520 (“Since 1790, the government has conducted the required ‘actual enumeration’ through questions—initially asked in person by U.S. Marshals and ‘specially appointed agents’ and later by means of written questionnaire—… of those living in each American household.”); 1998 House Br., 1998 WL 767637, at *34-35, *49-50 (similar).
Defendants have elsewhere conceded this very point. When the State of New York recently challenged the citizenship question as a violation of, inter alia, the Enumeration Clause, the DOJ—appearing on behalf of Defendants—maintained that “the Constitution’s reference to ‘actual Enumeration’ is simple: population [for purposes of apportionment] is to be determined through a person-by-person headcount, rather than through estimates or conjecture.” Brief.in Support of Defendants’ Mot. to Dismiss (ECF 155) at 30, New York v. Dep’t of Commerce, No. 1:18-cv-02921-JMF (S.D.N.Y. filed May 25, 2018) (emphasis added); see also id. at 25 (stating that the Enumeration Clause “provides a simple judicial standard for determining the constitutionality” of a practice used in creating data used for apportionment: “the Secretary must perform a person-by-person headcount, rather than an estimate” (emphasis added)).
Defendants’ predecessors in the Executive Branch have agreed with this view. For example, in 1980, the Secretary of Commerce recognized “the constitutional mandate and historical precedent of using the ‘actual Enumeration’ for purposes of apportionment, while eschewing estimates based on sampling or other statistical procedures, no matter how sophisticated.” Census Undercount Adjustment: Basis for Decision, 45 Fed. Reg. at 69372. As he emphasized: “the framers of the Constitution drew a clear distinction between an ‘actual Enumeration’ and an estimate, regardless of its underlying methods.” Id.
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The House of Representatives advanced the same argument to the Supreme Court in 1998. See 1998 House Br., 1998 WL 767637, at *44-50. “When the Framers used the term ‘actual Enumeration,’” the House argued, “they anticipated a procedure by which the government would actually ‘count’ or ‘reckon-up’ the people, one by one.” Id. at 46. The House rejected the view that “an ‘actual enumeration’ means no more than the ‘action of ascertaining an official count of the number of persons who exist,’ and the ‘manner’ of ascertaining that official count is entirely up to Congress or its delegate.” Id.
It also bears emphasizing why the Framers were insistent on an “actual Enumeration.” Besides selecting a method that was simple and unambiguous, they sought to guard against political “manipulation” of the census and the resulting apportionment. Brief. of National Republican Legislators Ass’n as Amici Curiae, No. 98-404, Dep’t of Commerce v. House of Representatives (“Republican Legislators Br.”), 1998 WL 767644, at *6 (U.S. filed Nov. 3, 1998). To that end, the Framers required a census every ten years, rather than whenever Congress might deem fit, because “those who have power in their hands will not give it up while they can retain it.” 1 Records of the Federal Convention of 1787 at 578 (Max Farrand ed., 1911). Likewise, the Framers placed the entire census process in the hands of the national legislature, since the States were “too much interested to take an impartial [count] for themselves.” Id. at 580.
The Framers adopted the “actual enumeration” requirement in that same spirit. See 1998 House Br., 1998 WL 767637, at *48; Republican Legislators Br., 1998 WL 767644, at *8. A literal headcount constituted a “permanent and precise standard” that would “t[ie] the hands” of future Congresses so that they “could not sacrifice their trust to momentary considerations.” 1 Records of the Federal Convention of 1787 at 578, 580 (Max Farrand ed., 1911). This method also “had the recommendation of great simplicity and uniformity in its operation, of being gener-
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ally acceptable to the people, and of being less open to fraud and evasion, than any other, which could be devised.” 2 Joseph Story, Commentaries on the Constitution of the United States § 633 (1833); see also 3 Joseph Story, Commentaries on the Constitution of the United States § 676, at 143 (1833) (“[T]he rule” established by the Enumeration Clause was intended “always [to] work the same way …, and be as little open to cavil, or controversy, or abuse, as possible.”).
2. “Actual Enumeration” of the Number of Undocumented Immigrants in Connection with the 2020 Census is Not Possible
Having set forth what the Enumeration Clause requires and why the Framers required it, it is clear that any attempt to implement the Memorandum in connection with the 2020 census would violate that clause’s mandate.
The Census Bureau did not inquire about respondents’ compliance with immigration laws (i.e., their documented/undocumented status) in connection with the 2020 census. Stat. ¶ 52. By Defendants’ admission, it is far too late to add such a question to the census now. Stat. ¶ 53. Nor, as Plaintiffs’ experts explain, is there any other available source of data that would constitute an “actual Enumeration” of all 50 states’ undocumented immigrant populations—i.e., a person-by-person “reckoning” of who is an undocumented immigrant and who is not, produced through a direct inquiry of each household in the country. Stat. ¶¶ 69, 77, 81, 87, 109.
Therefore, at the conclusion of the census, the Bureau will lack anything constituting an “actual Enumeration” of who in each State is an undocumented immigrant. Stat. ¶¶ 69, 81, 87, 108. Any estimate of the undocumented immigrant population that the Bureau might be able to make with the partial administrative records that it is attempting to piece together will be just that: an estimate, not an “actual Enumeration.” Stat. ¶¶ 80-102. And once that estimate is subtracted from the “whole number of persons in each state,” as determined by the Bureau through the census, the resulting difference—which the President intends to use as the apportionment
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base—will also be an estimate, not an “actual Enumeration.” See Athel Cornish-Bowden, Basic Mathematics for Biochemists 18 (1981) (“[J]ust as a chain is no stronger than its weakest link, the result of a calculation … is no more accurate than the most inaccurate value used in it.”).
B. Implementing the Memorandum Would Violate the Statutory Ban on Statistical Sampling 1. 13 U.S.C. § 195 Prohibits Statistical Sampling in Connection with Determining the Apportionment Base
As discussed above, starting with the very first Congress, all Census Acts have “require[d] enumerators to ‘visit [or otherwise contact] personally each dwelling house …’ in order to obtain ‘every item of information and all particulars required’” for the census process. House of Representatives, 525 U.S. at 335 (quoting Act of Aug. 31, 1954, § 25(c), 68 Stat. 1012, 1015). These acts, therefore, implicitly “prohibited the use of statistical sampling in calculating the population for purposes of apportionment.” Id.
In 1957, however, Congress made that prohibition explicit. The Secretary of Commerce asked Congress to amend the Census Act “to permit the [Census] Bureau to use statistical sampling” to gather certain “supplemental, nonapportionment census information regarding population, unemployment, housing, and other matters collected in conjunction with the decennial census.” Id. at 336-37. In response, Congress enacted 13 U.S.C. § 195, which gives the Secretary the limited authority to employ “the statistical method known as ‘sampling’”—“[e]xcept for the determination of population for apportionment purposes.” As the Supreme Court has held, “[13 U.S.C.] § 195 directly prohibits the use of sampling in the determination of population for purposes of apportionment”—whether “as a ‘supplement’ [to] or as a ‘substitute’” for actual enumeration. 525 U.S. at 338, 342 (emphasis added).
In 1997, Congress reiterated its view that 13 U.S.C. § 195 prohibits the use of “statistical sampling or adjustment in conjunction with an actual enumeration.” 1998 Appropriations Act,
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§ 209(a)(7), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note). It further clarified that this includes “the use of representative sampling, or any other statistical procedure, including statistical adjustment, to add or subtract counts to or from the enumeration of the population as a result of statistical inference.” Id. § 209(h)(1) (emphasis added).
The reason why Congress prohibited statistical sampling in apportionment is the same reason why the Framers insisted on an “actual enumeration”: the danger that “the census could become just a tool to further the political ends of [the methodology’s] designers, the political party that controls the executive branch.” Republican Legislators Br., 1998 WL 767644, at *8. President George H. W. Bush’s Secretary of Commerce, Robert Mosbacher, explained that sampling would “open the door to political tampering with the census” and “subject the Census Bureau to partisan pressures,” because such methods “depend[] heavily on assumptions,” and their results change “in important ways” when those assumptions change. Dep’t of Commerce, Adjustment of the 1990 Census for Overcounts and Undercounts of Population and Housing, Notice of Final Decision, 56 Fed. Reg. 33582, 33583, 33605 (July 22, 1991); see also Wisconsin v. City of New York, 517 U.S. 1, 11-12 (1996) (summarizing these concerns).
In short, as Congress put it in 1997: the use of sampling techniques “to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstitutional census.” 1998 Appropriations Act, § 209(a)(7), Pub. L. No. 105-119, 111 Stat. 2440, 2481-82 (1997) (codified at 13 U.S.C. § 141 note) (emphasis added).
2. Any Method of Implementing the Memorandum Available to the Census Bureau Would Require Statistical Sampling
In addition to violating the Enumeration Clause, any process that Defendants might use to implement the Memorandum would violate 13 U.S.C. § 195, because “[w]ithout an actual enu-
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meration, there is no known method of excluding undocumented immigrants” from the apportionment count “that does not rely on statistical sampling.” Stat. ¶ 80.
Absent an “actual Enumeration” of every undocumented immigrant in every state, the Census Bureau has just two ways to implement the Memorandum. The first is to use existing estimates of the undocumented immigrant population created by third parties, such as the Pew Research Center, the Center for Migration Studies, and other think-tanks. Stat. ¶¶ 57, 69. These estimates are useful for many purposes, including predicting the results of the upcoming census, but they do not provide the level of certainty and definiteness that the Constitution and federal statutes require for the actual task of apportionment. Instead, they all rely on statistical sampling, which necessarily yields accompanying bands of uncertainty. They cannot be used for purposes of apportionment under 13 U.S.C. § 195. Stat. ¶¶ 57, 72-79.
The only other option available to the Census Bureau is to use whatever administrative records it has been able to piece together to attempt to quantify the undocumented population. Stat. ¶¶ 69, 80-87. This option, too, would require significant statistical sampling and adjustment. Stat. ¶¶ 80, 90-102. Unsurprisingly, there are very few administrative records that directly document those whose status is undocumented. Stat. ¶ 88. The records that do exist “represent a tiny fraction of those in the country without formal legal immigration status.” Stat. ¶ 88. Moreover, those records are riddled with errors and inconsistences and are out of date. Stat. ¶ 89. Thus, any attempt to project this data to the present day and extrapolate it to a count of the entire undocumented population “would require extensive statistical modeling.” Stat. ¶ 90.
3. The Adjustment Required Would Not Constitute Lawful “Imputation” In Utah v. Evans, 536 U.S. 452, the Supreme Court recognized that one specific type of adjustment to the census totals, known as “imputation,” does not violate § 195’s ban on sampling. Occasionally, even after repeated follow-up attempts, the Census Bureau will be unable to
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identify “whether [an address] represents a housing unit,” or “the number of persons an occupied unit contains.” Id. at 457-58. In such circumstances, the Bureau may lawfully “impute” that missing information, based on observations about similar nearby addresses. Id. As the Court explained, several things differentiate this lawful process of imputation from unlawful sampling—and none of those indicia of lawful imputation are present here. Stat. ¶¶ 83-86, 91-102.
First, “the Bureau turns to imputation only after ordinary questionnaires and interviews have failed” to enumerate a given residence. 536 U.S. at 470, 477. Here, however, Defendants would not be turning to inferential techniques “only after … exhaust[ing] [their] efforts to reach each individual” and ask them directly about their immigration status. Id. at 477. To the contrary, Defendants would be using inferential techniques as a first resort. Stat. ¶¶ 95-100.
Second, imputation is used “sparingly,” to fill in gaps involving only “a tiny percent of the [total] population”—such as the 0.4% gap at issue in Evans. 536 U.S. at 471, 477, 479 (suggesting that, if the number of missing responses had been as high as 10%, imputation would be improper). Here, by contrast, Defendants would not be using inference “sparingly” to fill in a “tiny” gap in an actual enumeration of Americans by immigration status. To the contrary, Defendants would be inferring immigration status for virtually the entire population—a scale “orders of magnitude larger” than that at issue in Evans. Stat. ¶ 101.
Third, the type of “count imputation” at issue in Evans is politically neutral and cannot be used “to manipulate results” toward a desired partisan outcome. 536 U.S. at 471-72, 479; see also Montana, 503 U.S. at 464 & n.42 (rejecting Enumeration Clause claim where challenged technique was adopted in “good faith,” rather than as an attempt to “favor[] a particular party” or “maintain partisan political advantage”). But the process proposed here is anything but neutral. Indeed, reducing the representation of certain known states is the entire reason for its existence.
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Fourth, the Court noted that the type of imputation at issue in Evans—inferring whether an address is residential and how many people live there using data about neighboring addresses—resembles the long-accepted practice of “ask[ing] … neighbors, landlords, postal workers, or other proxies about the number of inhabitants in a particular place” after direct inquiry had failed. 536 U.S. at 477. “Such reliance on hearsay,” the Court concluded, had a long historical pedigree, and “need be no more accurate” than “the Bureau’s method of imputation.” Id. Here, however, the data that Defendants seek to estimate—how many people in each state are “in a lawful immigration status under the Immigration and Nationality Act”—is far different. Neighbors, landlords, postal workers, and other third-party “proxies” generally do not have accurate first-hand knowledge of whether a given individual in their community is in compliance with immigration laws. The use of inferential techniques to divine that data, therefore, would not resemble anything ever done the history of the decennial census. Stat. ¶ 101, 109.
Finally, unlike traditional “imputation” of the number of people living in a given house, any model that Defendants might devise to predict undocumented immigrant status in the absence of direct records will presumably treat Hispanic race or ethnicity, or Latin American national origin, as a key predictive variable. Stat. ¶¶ 101-102. Removing persons from the apportionment base even in part based on their race, ethnicity, or national origin would raise fundamental equal protection concerns not implicated by the type of “imputation” approved in Evans. See Cooper v. Harris, 137 S. Ct. 1455, 1473 n.7 (2017) (noting that race-based government action “remains suspect even if race is meant to function as a proxy for other … characteristics”).
* * * In sum, even if it were not inherently unlawful to exclude undocumented immigrants from the apportionment base, Defendants could not possibly implement the Memorandum in a
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lawful manner based on the data available to them. Any estimate that Defendants might make of the number of undocumented immigrants in each state would not meet Article I’s requirement of an “actual Enumeration,” and it would require the type of statistical sampling and adjustment that 13 U.S.C. § 195 expressly prohibits. These requirements were adopted specifically to prohibit the type of partisan political manipulation in which Defendants are attempting to engage.
CONCLUSION For the foregoing reasons, the Court should grant partial summary judgment in Plaintiffs’ favor with respect to Counts I, IV, and V of the First Amended Complaint. In the alternative, if the Court determines that any genuine dispute(s) of material fact prevent entry of summary judgment, the Court should order an expedited trial on the merits with respect to such dispute(s).

DATED: August 19, 2020

By: /s/ Daniel S. Ruzumna Daniel S. Ruzumna (D.C. Bar No. 450040)
BONDURANT MIXSON & ELMORE LLP EMMET J. BONDURANT* 1201 West Peachtree Street NW Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Fax: (404) 881-4111 bondurant@bmelaw.com
PATTERSON BELKNAP WEBB & TYLER LLP GREGORY L. DISKANT* DANIEL S. RUZUMNA (D.C. Bar No. 450040) ARON FISCHER* JONAH M. KNOBLER* PETER A. NELSON* J. JAY CHO* DEVON HERCHER* ABIGAIL E. MARION* ETHAN KISCH* 41

Case 1:20-cv-02023-CRC Document 31-1 Filed 08/19/20 Page 50 of 50
1133 Avenue of the Americas New York, NY 10036 Telephone: (212) 336-2000 Fax: (212) 336-2222 gldiskant@pbwt.com Attorneys for Plaintiffs * admitted pro hac vice McDERMOTT WILL & EMERY MICHAEL B. KIMBERLY (D.C. Bar No. 991549) 500 North Capitol Street, NW Washington, D.C. 20001 Telephone: (202) 756-8000 Fax: (202) 756-8087 mkimberly@mwe.com Attorney for the Individual and Organizational Plaintiffs
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 Case 1:20-cv-02023-CRC-GGK-DLF Document 45-1 Filed 08/26/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE, et al., Plaintiffs, v.
DONALD J. TRUMP, et al., Defendants.

Case No. 1:20-cv-2023 (GGK) (CRC) (DLF)

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

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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

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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
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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
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(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
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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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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 CURIAE1 Amicus curiae, the United States House of Representatives (House),2 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.
1 No person or entity other than amicus and its counsel assisted in or made a monetary contribution to the preparation or submission of this brief.
2 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.

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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.
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 statutes that Congress enacted to implement the constitutional text 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
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President therefore cannot lawfully transmit an apportionment calculation based on anything other than “the whole number of persons in each State.” Id.
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
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command to count all persons, but has also refused to enact legislation that would accomplish what the Memorandum attempts to achieve by executive fiat.
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, § 2.3
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
3 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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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 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; 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.4
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
4 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 “constitut[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.5 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
5 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.”).6 Congress has routinely
received counsel on this question reaching the same conclusion.7
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”).
6 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)).
7 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.8 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.9 The Bureau has similarly always relied on total population in making apportionment determinations, because “[t]he apportionment
8 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).
9 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).”10 No census has ever systematically excluded undocumented immigrants.11
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.12
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,
10 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”).
11 See Hearing, Counting Every Person: Safeguarding the 2020 Census, H. Comm. on Oversight & Government Reform (testimony of Kenneth Prewitt and Robert M. Groves).
12 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.13
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.14 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.”15 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
13 U.S. Census Bureau, Historical Perspective (2020), https://perma.cc/Y6LW-XKF8. 14 Jynnah Radford, Key Findings About U.S. Immigrants, Pew Rsch. Ctr. (June 17, 2019), https://perma.cc/USU7-L9BM. 15 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.16
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).17 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
16 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).
17 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.” 18
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 Act19—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.20 As explained by a
18 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting at 8 (2015), https://perma.cc/22RT-5EWN.
19 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.
20 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 2020.21 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).22
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.
21 Thomas Hofeller, The Use of Citizen Voting Age Population in Redistricting at 8 (2015), https://perma.cc/22RT-5EWN.
22 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.”23 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.24
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.”25 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.
23 Remarks by President Trump Before Marine One Departure, White House (July 5, 2019), https://perma.cc/QK6V-833H.
24 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). 25 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, 2020.26 The challenge of enumerating the remaining population of the United
26 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.27 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
27 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.”28
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.29 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.
28 Press Release, H. Comm. on Oversight & Reform, Oversight Committee Held Emergency Hearing on Trump Administration’s Unconstitutional Politicization of 2020 Census (July 29, 2020).
29 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 1788.30 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.31
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
30 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.
31 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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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 JAMES B. AMLER LAURA E. O’NEILL TARA GANAPATHY KATHERINE NELSON DEBEVOISE & PLIMPTON, LLP 801 Pennsylvania Ave. NW Washington, DC 20004 (202) 383-8000 daoneil@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. GROGG 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 26, 2020

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 Case 1:20-cv-05583-AKH Document 1 Filed 07/20/20 Page 1 of 98

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, STATE OF CALIFORNIA, COMMONWEALTH OF MASSACHUSETTS, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, DISTRICT OF COLUMBIA, 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 NORTH CAROLINA, STATE OF OREGON, COMMONWEALTH OF PENNSYLVANIA, STATE OF RHODE ISLAND, STATE OF VERMONT, COMMONWEALTH OF VIRGINIA, and STATE OF WISCONSIN,

Civil Action No. 1:20-cv-5583
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ALEX M. AZAR II, in his official capacity as Secretary of Health and Human Services, and ROGER SEVERINO, in his official capacity as Director of the Office for Civil Rights at the United States Department of Health and Human Services,

Defendants.

INTRODUCTION 1. Congress enacted the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (codified at 42 U.S.C. §§ 18001-18122 (2010)), to expand access to health care, ensure that health services are broadly available in the United States, and address

Case 1:20-cv-05583-AKH Document 1 Filed 07/20/20 Page 2 of 98
significant barriers to health care access caused by inadequate and discriminatory health insurance coverage.
2. The ACA contained a landmark civil rights provision, 42 U.S.C. § 18116 (commonly known as Section 1557), intended to strike at these barriers by prohibiting discrimination in health care and health insurance. Section 1557 prohibits all health programs and activities receiving federal financial assistance, including medical providers, health systems, and health insurers, from discriminating against individuals on the basis of race, color, national origin, sex, age, or disability. Section 1557 was the first federal civil rights law to comprehensively prohibit discrimination in health care, complementing existing protections under other laws, and the first to expressly extend prohibitions on sex discrimination to health care providers and insurers.
3. After the ACA went into effect in 2010, Defendant U.S. Department of Health and Human Services (“HHS” or the “Department”), confirmed that Section 1557’s statutory prohibition on discrimination “on the basis of sex” barred, among other things, discrimination based on gender identity, nonconformity to sex stereotypes, and pregnancy-related conditions. In 2012, the Director of HHS’s Office for Civil Rights (“OCR”) advised that “Section 1557’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity” and that OCR “will accept such complaints for investigation.”1 In 2014, OCR settled a complaint against Brooklyn Hospital after the hospital put the complainant, a transgender woman, in a room with a man.
4. In 2013, HHS, under its authority to promulgate Section 1557 implementing regulations, commenced a three-year-long process to codify the statute’s civil rights protections
1 Letter from HHS OCR Director Leon Rodriguez to Maya Rupert (July 12, 2012), available at https://hrc.org/files/assets/resources/HHSResponse8612.pdf.
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into HHS’s regulations by issuing a Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities, 78 Fed. Reg. 46,588 (Aug. 1, 2013) (“2013 RFI”) to inform the agency’s anticipated rulemaking. That process concluded on May 18, 2016 with the publication of a Final Rule, Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (codified at 45 C.F.R. § 92) (the “2016 Rule”).
5. In the 2016 Rule, HHS recognized “that a fundamental purpose of the ACA is to ensure that health services are available broadly on a nondiscriminatory basis to individuals throughout the country,” and that “[e]qual access for all individuals without discrimination is essential to achieving this goal.” 81 Fed. Reg. 31,444. The rule found that discrimination in the health care context “can often lead to poor and inadequate health care or health insurance or other coverage for individuals and exacerbate existing health disparities in underserved communities,” including causing individuals facing discrimination to avoid seeking care, resulting in adverse public health outcomes and higher medical costs associated with that delayed or denied care. Id. HHS also cited substantial evidence of ongoing health care discrimination—and the related harms to individuals and the public—experienced by transgender people, women and other individuals seeking reproductive health care or with pregnancy-related conditions, individuals with limited English proficiency (“LEP”) (“LEP individuals”), and people with disabilities, and detailed the pervasive, discriminatory barriers to adequate health care faced by these groups. Id. at 31,459-61.
6. To address these barriers and fulfill Section 1557’s antidiscrimination mandate, the 2016 Rule detailed the obligations of health care providers and insurers with respect to transgender people, women and individuals seeking reproductive health care, LEP individuals, and people with disabilities. The 2016 Rule’s key provisions included: (a) clarifying that Section
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1557 broadly applies to all health providers and insurers that receive federal financial assistance, id. at 31,467 (codified at 45 C.F.R. § 92.4); (b) clarifying that the statute’s prohibition on discrimination on the basis of sex included discrimination based on gender identity, sex stereotypes, and pregnancy-related conditions, id.; (c) specifying covered entities’ obligations to transgender individuals, id. at 31,471-72 (codified at 45 C.F.R. §§ 92.206, 92.207); (d) establishing detailed language access requirements to ensure nondiscriminatory access to health services for LEP individuals, id. at 31,410-11 (codified at 45 C.F.R. § 92.201); and (e) establishing a uniform enforcement scheme for all forms of discrimination prohibited by the statute, id. at 31,439-40.
7. A mere three years later, Defendants promulgated a proposed rule, Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846 (June 14, 2019) (“2019 NPRM”), that would eviscerate the 2016 Rule and eliminate many of its core protections. HHS received nearly 200,000 comments to the proposed rule, many opposing the stark retreat from the 2016 Rule’s protections.
8. On June 19, 2020, Defendants published a Final Rule, Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) (to amend and be codified at 45 C.F.R. pt. 92) (“2020 Rule” or “Rule”). The 2020 Rule, by Defendants’ own admission, made only “minor and primarily technical corrections” to the 2019 NPRM, notwithstanding the substantial number of public comments. 85 Fed. Reg. 37,161. The 2020 Rule arbitrarily and unlawfully strips health care rights statutorily guaranteed by Section 1557 from transgender people, women and other individuals seeking reproductive health care or with pregnancy-related conditions, LEP individuals, individuals with disabilities, and other individuals experiencing discrimination. The Rule, published in the midst
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of the global COVID-19 pandemic, will impose unjustifiable barriers to health care on vulnerable populations at a time when access to care is as crucial as ever.
9. Remarkably, Defendants published the 2020 Rule mere days after the Supreme Court confirmed, in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. prohibits discrimination based on sexual orientation or transgender status.2 The Rule ignores Bostock, redefining discrimination “on the basis of sex” to exclude express regulatory protections against gender identity discrimination, removing the specific protections for transgender people contained in the 2016 Rule, and striking the express prohibitions on sexual orientation and gender identity discrimination from other HHS regulations.
10. These changes—coupled with Defendants’ well-established animus towards transgender people and their health care needs—makes clear that HHS will not abide by its statutory obligation to enforce Section 1557’s protections for lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people. This is one of many actions taken by HHS and other agencies during the Trump Administration to roll back protections for LGBTQ people.
11. The 2020 Rule, without sufficient justification, purports to redefine covered “health program or activity” to newly exclude many health insurers not “principally engaged in the business of providing healthcare.” 85 Fed. Reg. 37,244. This redefinition, in conflict with the statute, arbitrarily and narrowly defines “healthcare” to exclude health insurance, thus removing many private employer-based plans, Medicare Part B plans, and the Federal Employee Health Benefits (“FEHB”) program from the Rule’s scope. The Rule also unlawfully excludes many programs administered by HHS and other federal agencies from the scope of the
2 This Complaint interchangeably uses the phrases “transgender status” and “gender identity” in referring to the prohibited forms of discrimination against transgender people for being transgender.
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regulation’s coverage. This redefinition—which is at odds with the plain language of Section 1557 and the statute’s core purpose of eliminating discrimination by health care providers and health insurance companies—will reduce express federal protections for all victims of health care discrimination. By adopting this unduly narrow definition of “health program or activity,” HHS has unlawfully abdicated its responsibility to enforce the full and proper scope of Section 1557’s statutory protections.
12. The 2020 Rule also guts the robust language access provisions of the 2016 Rule, including eliminating requirements that covered entities notify LEP individuals of their rights and reducing entities’ obligations to ensure that LEP individuals are afforded appropriate language access services while seeking and obtaining health care.
13. Contrary to its stated purpose of “reduc[ing] confusion,” 85 Fed. Reg. 37,202, the 2020 Rule unnecessarily sows confusion. The Rule deletes the uniform Section 1557 enforcement standards contained in the 2016 Rule, resorting instead to cross-referencing a complicated and inconsistent hodge-podge of standards in other civil rights statutes.
14. The Rule also runs afoul of Section 1557 by creating a broad religious exemption that has no basis in that statute and that attempts to give religiously-affiliated providers and insurers license to deny care and coverage for discriminatory reasons, jeopardizing the health and well-being of individuals for whom a religiously-affiliated health plan or provider may be the only option.
15. Defendants’ unlawful and arbitrary rollback of health care protections will harm Plaintiffs and their residents. Plaintiffs the State of New York, State of California, Commonwealth of Massachusetts, State of Colorado, State of Connecticut, State of Delaware, the District of Columbia, State of Hawaii, State of Illinois, State of Maine, State of Maryland,
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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, and State of Wisconsin, bring this action to vacate the 2020 Rule and enjoin its implementation because it is arbitrary, capricious, an abuse of discretion, and contrary to law, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); exceeds Defendants’ statutory jurisdiction, authority, and limitations in violation of the APA, 5 U.S.C. § 706(2)(C); and violates the equal protection guarantee of the Fifth Amendment to the United States Constitution.
JURISDICTION AND VENUE 16. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346, and 2201(a). Jurisdiction is also proper under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702. 17. Declaratory and injunctive relief is sought consistent with 5 U.S.C. §§ 705 and 706, and as authorized in 28 U.S.C. §§ 2201 and 2202. 18. 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. Plaintiff the State of New York is a resident 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 this district.
PARTIES 19. 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 to pursue this action pursuant to N.Y. Executive Law § 63.
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20. Plaintiff the State of California, by and through Attorney General Xavier Becerra, brings this action. The Attorney General is the chief law officer of the State of California and has the authority to file civil actions in order to protect public rights and interests. Cal. Const., art. V, § 13; Cal. Bus. & Prof. Code § 321. This challenge is brought pursuant to the Attorney General’s independent constitutional, statutory, and common law authority to represent the public interest.
21. 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, §§ 3,10.
22. Plaintiff the State of Colorado, represented by and through its Attorney General, Phil Weiser, brings this action. The Attorney General is Colorado’s chief legal representative and is authorized to pursue this action on behalf of the State under Colo. Rev. Stat. § 24-31-101.
23. Plaintiff 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.
24. Plaintiff the State of Delaware is a sovereign state of the United States of America. This action is brought on behalf of the State of Delaware by Attorney General Kathleen Jennings, the “chief law officer of the State.” Darling Apartment Co. v. Springer, 22 A.2d 397, 403 (Del. 1941). Attorney General Jennings also brings this action on behalf of the State of Delaware pursuant to her statutory authority. Del. Code Ann. tit. 29, § 2504.
25. Plaintiff District of Columbia is a sovereign municipal corporation organized under the Constitution of the United States. It is empowered to sue and be sued, and it is the local government for the territory constituting the permanent seat of the federal government.
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The District is represented by and through its chief legal officer, the Attorney General for the District of Columbia, Karl A. Racine. The Attorney General has general charge and conduct of all legal business of the District and all suits initiated by and against the District and is responsible for upholding the public interest. D.C. Code § 1-301.81.
26. Plaintiff the State of Hawaii, 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 Hawaii and has authority to appear, personally or by deputy, for the State of Hawaii in all courts and in all cases, criminal or civil, in which the State may be a party or be interested. Haw. Rev. Stat. § 28-1. The Department of the Attorney General has the authority to represent the State in all civil actions in which the State is a party. Haw. Rev. Stat. § 26-7. This challenge is brought pursuant to the Attorney General’s constitutional, statutory, and common law authority. See Haw. Const. art. V, § 6; Haw. Rev. Stat. Chapter 28; Haw. Rev. Stat. § 26-7.
27. Plaintiff the State of Illinois, by and through Attorney General Kwame Raoul, is a sovereign state of the United States of America. The Attorney General brings this action as the state’s chief legal officer pursuant to 15 ILCS 205/4.
28. 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 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
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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.
29. Plaintiff the State of Maryland, by and through its Attorney General, Brian E. Frosh, brings this action. 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.
30. Plaintiff State of Michigan, represented by and through Attorney General Dana Nessel, is a sovereign state of the United States of America. The Attorney General is the State of Michigan’s chief law enforcement officer and is authorized to pursue this action under Mich. Comp. Laws § 14.28.
31. Plaintiff the State of Minnesota, represented by and through its Attorney General, is a sovereign state of the United States of America. Attorney General Keith Ellison is the chief legal officer of the State of Minnesota and his powers and duties include filing lawsuits in federal court on behalf of the State of Minnesota. Minn. Stat. § 8.01.
32. 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
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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.
33. Plaintiff State of New Jersey is a sovereign state of the United States of America. This action is being brought on behalf of the State by Attorney General Gurbir S. Grewal, the State’s chief legal officer. N.J. Stat. Ann. § 52:17A-4(e), (g).
34. Plaintiff the State of New Mexico, by and through Attorney General Hector Balderas, brings this action. The Attorney General is the head of New Mexico’s Department of Justice, N.M. Stat. Ann, § 8-5-1, and is authorized to prosecute and defend on behalf of the state when, in his judgment, the interest of the state requires such action. Id. at § 8-5-2.
35. 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.
36. 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.
37. 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. 71 Pa. Stat. § 732-204.
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38. 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.
39. 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.
40. Plaintiff the Commonwealth of Virginia, by and through Attorney General Mark R. Herring, brings this action. The Attorney General is the chief executive officer of the Department of Law and performs all legal services in civil matters for the Commonwealth. Va. Const. art. V, § 15; Va. Code Ann. §§ 2.2-500, 2.2-507.
41. 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.
42. Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this action because the 2020 Rule harms their sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until the 2020 Rule is vacated.
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43. Defendant HHS is a cabinet agency within the executive branch of the United States government, and is an agency within the meaning of 5 U.S.C. § 552(f). HHS promulgated the 2020 Rule and is responsible for its enforcement.
44. Defendant Alex M. Azar II is the Secretary of HHS and is sued in his official capacity.
45. Defendant Roger Severino is the Director of HHS’s Office for Civil Rights and is sued in his official capacity.
ALLEGATIONS I. STATUTORY BACKGROUND
46. The 2020 Rule amends the Department’s regulations implementing two federal civil rights statutes: Section 1557 of the ACA and Title IX of the Education Amendments of 1972.
A. The Affordable Care Act 47. The ACA, enacted to expand access to affordable, quality health care and coverage across the United States, instituted significant changes to the American health care system. Recognizing that inadequate health insurance coverage was a significant barrier to health care access, Title I of the ACA (“Title I”) made significant reforms to the private health insurance market and public insurance programs, including establishing detailed requirements for qualified health plans and essential health benefits under health insurance plans, as well as expanding consumer choice through health insurance exchanges, tax credit programs, and other provisions intended to expand choice and reduce discrimination in health care. 48. The ACA’s landmark civil rights provision, Section 1557, was the first federal law to expressly and comprehensively prohibit discrimination in the American health care
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system on the basis of race, color, national origin, sex, age, and disability. 42 U.S.C. § 18116.
The law incorporates the protected classifications and enforcement mechanisms from Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title VI”) (race, color, and national
origin); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”)
(sex); the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq. (“Age Act”) (age); and
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”) (disability).
49. Under Section 1557,
an individual shall not, on the ground prohibited under [Title VI, Title IX, the Age Act, or Section 504], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under [Title I] (or amendments),” and “[t]he enforcement mechanisms provided for and available under such [Title VI, Title IX, Section 504] or such [Age Act] shall apply for purposes of violation of this subsection.
42 U.S.C. § 18116(a). Section 1557 expressly applies to “any health program or activity, any
part of which is receiving Federal financial assistance” or is administered by the federal
government. Id.
50. The statute authorizes the Secretary of HHS to “promulgate regulations to
implement this section.” Id. § 18116(c).
51. A companion provision, Section 1554 of the ACA, 42 U.S.C. § 18114, prohibits
the Secretary of HHS from:
promulgat[ing] any regulation that—(1) creates unreasonable barriers to the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health care services; (3) interferes with communications regarding a full range of treatment options between the patient and provider; (4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions; (5) violates the principles of informed consent and the ethical standards of health care professionals; or (6) limits the availability of health care treatments for the full duration of a patient’s medical needs.
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B. Title IX 52. Title IX of the Education Amendments of 1972 provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). 53. Title IX “authorize[s] and direct[s]” each federal department and agency that provides federal financial assistance to education programs and activities, including HHS, to promulgate implementing regulations. Id. § 1682. 54. Title IX contains several exceptions applicable to educational institutions, including one exempting educational institutions controlled by religious organizations from complying with Title IX provisions that are inconsistent with the organization’s religious tenets. Id. § 1681(a)(1)-(9). II. REGULATORY HISTORY A. Following the ACA’s enactment, HHS enforced Section 1557 to protect
transgender and gender nonconforming people from discrimination by health providers and insurers. 55. HHS’s OCR has primary administrative enforcement authority over Section 1557. After Section 1557 went into effect in 2010, OCR began accepting and investigating complaints of discrimination prohibited by Section 1557 against covered health programs and activities, including by transgender and gender nonconforming people alleging discrimination based on sex. 56. Even before promulgating the 2016 Rule, HHS interpreted Section 1557’s sex discrimination prohibition to cover discrimination based on gender identity, gender nonconformity, and sex stereotypes.
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57. HHS’s post-ACA enforcement efforts were consistent with the Department’s finding that “[i]ndividuals, families and communities that have systematically experienced social and economic disadvantage face greater obstacles to optimal health, and that “[c]haracteristics such as race or ethnicity, religion, [socioeconomic status], gender, age, mental health, disability, sexual orientation or gender identity, geographic location, or other characteristics historically linked to exclusion or discrimination are known to influence health status.”3 Indeed, in the 2013 RFI, HHS expressly observed that “Section 1557 is consistent with and promotes several of the Administration’s and Department’s key initiatives that promote health and equal access to health care.” 78 Fed. Reg. 46,558-59.
B. During initial rulemaking, HHS learned of widespread, harmful discrimination against LGBTQ people, women and other individuals seeking reproductive health services and with pregnancy-related conditions, and LEP individuals.
58. HHS first commenced Section 1557 rulemaking with the 2013 RFI, which requested information on: (1) examples and experiences of discrimination in the health care context on the bases prohibited under Section 1557, including based on gender identity, sex stereotypes, and pregnancy; (2) the impacts of such discrimination; and (3) other information relevant to formulating a Section 1557 implementing regulation. 78 Fed. Reg. 46,559-60.
59. The 2013 RFI yielded 402 responses, more than half of which were from transgender individuals sharing their experiences with health care discrimination, as well as many comments from civil rights organizations, advocacy groups, and medical organizations providing information and data on the experiences with health care discrimination faced by transgender people, women, LEP individuals, and others. See Nondiscrimination in Health
3 HHS Action Plan to Reduce Racial and Ethnic Health Disparities, U.S. Dep’t of Health and Human Servs., 2 (2011) (“Action Plan”), https://minorityhealth hhs.gov/assets/pdf/hhs/HHS_Plan_complete.pdf.
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Programs and Activities: Notice of Proposed Rulemaking, 80 Fed. Reg. 54,172 (Sept. 8, 2015) (“2015 NPRM”).
60. With respect to the LGBTQ community, the Department obtained information through the 2013 RFI documenting the widespread discrimination against LGBTQ people by health care providers, including physical and verbal abuse, outright refusals of care, denials of insurance coverage for medically necessary services, and other hostile or disparate treatment, as well as the poorer health outcomes and serious or catastrophic health consequences resulting from this discrimination.
61. Individual LGBTQ commenters shared experiences, including being subjected to categorical coverage exclusions for gender-confirming health treatments, being subject to inappropriate and humiliating comments from providers relating to sexual orientation, and being denied essential medical care simply for being gay, transgender, or intersex. Examples of these comments, among many like them, included:
 A transgender man had a biopsy indicating that he had breast cancer. Because the attending physician objected to his gender identity, the physician did not inform him of the test results. The patient later learned from a lab technician of his cancer diagnosis, after the cancer had progressed past the point where chemotherapy could effectively treat it.
 A gay man reported: “My doctor knew or thought I was gay. I had to have a proctological exam of my rectum. There was an insurance problem so I went to the insurance office, and was faced with the fact that the doctor said the exam was
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necessary because of sexual orientation and because he thought that I liked large items inserted in my rectum. This was totally embarrassing and humiliating.”4  A person with XXY chromosomes, who is female, shared that she was required to use a “male” gender marker for treatment and insurance purposes, leading to problems obtaining appropriate care from her doctor. The commenter stated that “trying to use the medical system to effect my personal medical treatment is a nightmare. I should not be required to declare that I am male because I share a genetic signature with a number of identified people who are mostly male, but also include some whom are not male like me. The stigma attached to attaining medical services rendered from these types of regulations show that as they stand now simply asking to be treated in my native gender is in itself a minefield. The only diagnosis the hospitals can use requires me to be male, and has no exceptions for if I am not male.”5 62. Commenters responding to the 2013 RFI also documented the rampant discrimination faced by women and others seeking reproductive health services and with pregnancy-related conditions (including insurance coverage exclusions and discriminatory treatment by providers), barriers to effective care faced by LEP individuals denied access to adequate language assistance services, and widespread discrimination against people with disabilities. The comments also provided data showing that this pervasive discrimination deters people from seeking care, including preventative care, due to a fear of experiencing discrimination, resulting in serious, adverse health consequences.
4 Available at https://www.regulations.gov/document?D=HHS-OCR-2013-0007-0040. 5 Available at https://www.regulations.gov/document?D=HHS-OCR-2013-0007-0016.
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63. On September 8, 2015, HHS promulgated its proposed Section 1557 implementing regulations. 80 Fed. Reg. 54,172.
64. During the notice and comment period on the 2015 NPRM, HHS received nearly 25,000 comments in response to the proposed rule from individuals, civil rights organizations, health providers, insurers, and state and local governmental agencies, among others. 81 Fed. Reg. 31,376. These comments further substantiated the significant, widespread discrimination faced by LGBTQ people, women and individuals seeking pregnancy-related care, LEP individuals, and people with disabilities, and the critical need for HHS’s robust enforcement of Section 1557’s protections on behalf of these groups.
C. The 2016 Rule implemented Section 1557 consistent with HHS’s statutory mandate to eradicate discriminatory barriers to health care access.
65. On May 18, 2016, HHS published the 2016 Rule to implement Section 1557’s protections. 81 Fed. Reg. 31,376. The rule went into effect on July 18, 2016, with provisions applicable to health insurance and group benefit design becoming applicable on January 1, 2017, the first day of the plan year following the rule’s publication. Id.
66. The Department stressed that the 2016 Rule was intended to effectuate Section 1557’s broad antidiscrimination mandate and to serve the ACA’s central purpose of “expand[ing] access to care and coverage and eliminat[ing] barriers to access.” Id. at 31,377. The 2016 Rule made express factual findings that discrimination within the health care system contributes to inadequate insurance coverage and poor health outcomes, exacerbates health disparities in underserved communities, and contributes to the inequitable distribution of health care resources. Id. at 31,444. It further found that “individuals who have experienced discrimination in the health care context often postpone or do not seek needed care,” and are
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denied the ability to obtain health services provided to others, resulting in adverse health effects. Id.
67. Consistent with Section 1557’s general statutory prohibition against discrimination, the 2016 Rule required that, “[e]xcept as provided in Title I of the ACA, an individual shall not, on the basis of race, color, national origin, sex, age, or disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any health program or activity to which this part applies,” and set forth specific prohibitions and exceptions. Id. at 31,469-70 (§ 92.101).
68. The 2016 Rule defined a “covered entity” as: “(1) An entity that operates a health program or activity, any part of which receives Federal financial assistance; (2) An entity established under Title I of the ACA that administers a health program or activity; and (3) The Department.” Id. at 31,466 (§ 92.4). The rule defined “health program or activity” as “the provision or administration of health-related services, health-related insurance coverage, or other health-related coverage, and the provision of assistance to individuals in obtaining health-related services or health-related insurance coverage.” Id. at 31,467 (§ 92.4). The rule clarified that, where an entity is principally engaged in these activities, such as hospitals, group health plans, health insurers, and nursing or treatment facilities, all of that entity’s operations are subject to Section 1557. Id.
69. Consistent with federal case law, HHS’s own enforcement policies and practices, and the enforcement policies and practices of other federal agencies, the 2016 Rule defined discrimination “on the basis of sex” to include, but not be limited to, “discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.” Id.; see also id. at 31,387-88.
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Although the rule stopped short of expressly including sexual orientation discrimination as a form of sex discrimination, it noted the rapidly evolving law on the question of whether federal sex discrimination laws prohibited sexual orientation discrimination, and observed that, at minimum, any LGBTQ person facing discrimination based on nonconformity to sex stereotypes would be covered by the law. Id. at 31,388-90.
70. With respect to health insurance, the 2016 Rule specifically prohibited insurers from, on the basis of any protected category: denying, limiting, or refusing to issue insurance plans or policies, denying or limiting coverage, or imposing additional cost sharing or other limitations on coverage; maintaining discriminatory marketing practices or benefit designs; and denying or limiting coverage to transgender people both for routine and transition-related health care. Id. at 31,471-72 (§ 92.207). Recognizing the unique barriers to adequate health care faced by the transgender community, the 2016 Rule specified that denying or limiting coverage to a transgender person for “health services that are ordinarily or exclusively available to individuals of one sex” because of the person’s gender identity, or maintaining categorical exclusions or limitations on transition-related treatments and services, violates Section 1557’s sex discrimination prohibition. Id. at 31,471 (§ 92.206).
71. The 2016 Rule directed covered entities to provide LEP individuals with “meaningful access” to their health programs and activities by, inter alia, providing language assistance services at no cost. Id. at 31,470-71 (§ 92.201). Under the rule, “[a] covered entity shall take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs and activities.” Id. at 31,470 (§ 92.201(a)). The required language assistance services “must be provided free of charge, be accurate and timely, and protect the privacy and independence of the
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individual with limited English proficiency,” which included offering qualified interpreters for oral communications and qualified translators for written content at no cost to the individual. Id. (§ 92.201(c)-(d)). The 2016 Rule restricted entities’ ability to rely on family members to provide translation or interpretation services, and imposed specific requirements for the use of video remote interpretation services. Id. at 31,470-71 (§ 92.201(e)-(f)).
72. The 2016 Rule required covered entities to take appropriate and ongoing steps to notify beneficiaries, enrollees, applicants, and members of the public of the entity’s Section 1557-compliant nondiscrimination policy, including providing notice that the entity provides the language access services and auxiliary aids and services for individuals with disabilities required by the rule, and information on how to obtain those services. Id. at 31,469 (§ 92.8). The rule further required each entity to make its nondiscrimination notice available in the top 15 languages spoken by LEP individuals in the relevant state or states, include taglines translated into each of those languages on the entity’s websites and in significant communications, and take other measures to ensure LEP individuals have notice of their rights. Id. To ease the burden on covered entities, HHS provided sample nondiscrimination notices and taglines as appendices to the 2016 Rule, making translated versions of both available for covered entities’ use in 64 languages. Id. at 31,453, 31,472-73.
73. The 2016 Rule adopted a uniform legal standard applied to all forms of discrimination prohibited by Section 1557. This included recognizing the availability of compensatory damages, associational discrimination claims, and disparate impact claims, as well as the existence of a private right of action to challenge prohibited discrimination in court. Id. at 31,472 (§ 92.301); see also id. at 31,439-40. As explained in the 2015 NPRM, HHS intended this approach to avoid inconsistent application of the enforcement mechanisms in the statutes
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incorporated by Section 1557, and “to simplify and make uniform, consistent, and easy to understand the various nondiscrimination requirements and rights available under Section 1557, as appropriate.” 80 Fed. Reg. 54,194.
74. HHS declined to incorporate Title IX’s various exceptions into the 2016 Rule, correctly finding that those exceptions apply specifically to educational institutions and are inapposite to the health care context. 2016 Rule at 31,380; see 20 U.S.C. 1681(a)(1)-(9). This included declining to incorporate Title IX’s blanket religious exemption allowing religious schools to claim exemption from specific Title IX provisions that conflict with the school’s religious tenets. See 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12. As HHS explained, Section 1557 itself contains no religious exemption and, unlike religious schools where attendance is a matter of choice, patients needing health care often have no choice but to obtain health care and coverage from religiously-affiliated entities. 81 Fed. Reg. 31,380. Thus, HHS determined that a blanket religious exemption in the health care context “could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care, with serious, and in some cases, life-threatening results.” Id. The Department explained that other protections for religious entities under federal law would still be available to religiously-affiliated entities in the absence of a blanket exemption. Id.
75. In promulgating the 2016 Rule, HHS carefully weighed a variety of expected costs and benefits of the rule’s requirements. 81 Fed. Reg. 31,444-65. The 2016 Rule identified costs associated with complying with Section 1557’s sex discrimination prohibition (including the specific requirements pertaining to health care for transgender people) and with the rule’s language access and notice requirements. Id. at 31,446-59. The rule noted that HHS intended to minimize the cost impact of the notice requirements by providing sample, translated notices and
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taglines for entities’ use. Id. at 31,453. HHS determined that, based on the evidence gathered, the costs associated with the rule’s requirements would be offset by the public health benefits associated with individuals’ ability to access health care free from discrimination. Id. at 31,45962.
76. For example, the Department cited research showing that LEP individuals with access to adequate language assistance services “experience treatment-related benefits, such as enhanced understanding of physician instruction, shared decision-making, provision of informed consent, adherence with medication regimes, preventive testing, appointment attendance, and follow-up compliance,” and that providers also benefit by the ability to “more confidently make diagnoses, prescribe medications, reach treatment decisions, and ensure that treatment plans are understood by patients.” Id. at 31,459.
77. The Department also cited research demonstrating the health benefits to women and transgender people that would likely accrue from the specific sex discrimination protections articulated in the rule. Id. at 31,460. The Department noted, for example, that transgender people are frequently deterred from seeking care because of discrimination they have faced, resulting in negative health consequences and costs associated with untreated or inadequately treated conditions. Id. It projected that the rule “would result in more women and transgender individuals obtaining coverage and accessing health services,” reducing health disparities and uncompensated care costs to the government. Id. at 31,460-61. III. DEFENDANTS INITIATED THE 2019 RULEMAKING WITH THE PURPOSE
OF UNDERMINING SECTION 1557’S PROTECTIONS 78. On June 14, 2019—just three years after the 2016 Rule was published and less than three years after that rule took effect—Defendants issued the 2019 NPRM, in which they proposed erasing or reversing many of the 2016 Rule’s core protections. 84 Fed. Reg. 27,846.
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79. The 2019 NPRM proposed eliminating the definition of “on the basis of sex,” thereby removing express protections based on sex stereotyping, gender identity, and pregnancyrelated conditions; redefining “health program or activity” to newly exclude many private insurers, the FEHB program, Medicaid Part B plans, and many HHS-administered programs from the regulation’s reach; weakening the 2016 Rule’s language access requirements, including eliminating notice and tagline requirements meant to notify LEP individuals of their rights; eliminating the uniform legal standard for violations of Section 1557; and adding a blanket religious exemption not contained in or authorized by the Section 1557 statute. The 2019 NPRM also proposed “conforming” amendments to HHS’s Title IX regulations and several unrelated regulations for grant-making programs run by the Center for Medicare and Medicaid Services. Id. at 27,850-51, 27,856, 27,860, 27,865, 27,868, 27,869-70, 27,870-71, 27,883-84.
80. The 2019 NPRM relied heavily on one district court case, Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016), to justify the removal of the express gender identity protections contained in the Rule. 84 Fed. Reg. 27,848 n.10. The 2019 NPRM ignored that, in the years since the 2016 Rule was promulgated, most federal courts to consider the question had reached the contrary view, interpreting Section 1557 to prohibit discrimination against transgender people. And, while HHS acknowledged that the questions of whether gender identity and sexual orientation discrimination prohibited by federal sex discrimination laws would likely be resolved by the Supreme Court in the coming term, 84 Fed. Reg. 27,855, the Department nevertheless proceeded with rulemaking without the benefit of the Supreme Court’s decision in Bostock.
81. During the notice and comment period, HHS received an outpouring of comments opposing the massive rewrite of its Section 1557 implementing regulations. HHS received
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198,845 comments in response to the 2019 NPRM from individuals, civil rights groups, medical and public health organizations, scholars, members of Congress, state and local agencies, health care providers, individuals, and others. As with the earlier comment periods for the 2013 RFI and 2015 NPRM, thousands of comments opposing the 2019 NPRM described the widespread discrimination against transgender individuals, other LGBTQ people, women and other individuals seeking reproductive health care or with pregnancy-related conditions, LEP individuals, individuals with disabilities, and others, and described the necessity for the robust protections contained in the 2016 regulations.
82. A coalition of 22 state attorneys general, joined by many of the Plaintiffs to this suit, opposed the rule, as did many of Plaintiffs’ individual state agencies.6
83. As the COVID-19 pandemic worsened in the United States this spring, on April 30, 2020, a similar coalition of 26 state attorneys general urged Defendants to either withdraw the proposed rule or suspend rulemaking during the pandemic.7 That letter cited data showing that the pandemic was exacerbating health disparities, particularly in communities of color and immigrant communities, and that Section 1557’s robust nondiscrimination protections were more critical than ever to protect members of vulnerable groups from being denied adequate care during this unprecedented public health crisis.8 The letter warned that the publication of a final rule under these circumstances would unnecessarily burden health care providers and that, “[b]y removing critically important protections to help ensure that disproportionately impacted
6 Available at https://www.regulations.gov/document?D=HHS-OCR-2019-0007-142194. 7 See Letter from Attorney General Xavier Becerra to Secretary Alex Azar (Apr. 30, 2020), https://oag.ca.gov/news/press-releases/attorneys-general-becerra-and-healey-urge-hhs-not-finalize-rule-wouldpermit. 8 Id.
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communities get the care that they need, the Rule would undermine this crucial work and could prove deadly.”9
84. Nevertheless, Defendants issued a pre-publication version of the 2020 Rule on June 12, 2020, making only insignificant changes to the proposed rule. Three days later, on June 15, 2020, the Supreme Court issued the Bostock decision, ruling that the prohibition on discrimination on the basis of sex under Title VII—and, by extension, the other federal statutes prohibiting sex discrimination, including Section 1557—necessarily encompassed discrimination based on transgender status and sexual orientation. 140 S. Ct. at 1737. Bostock eviscerated a central premise of the 2020 Rule by confirming that federal sex discrimination prohibitions cover discrimination against someone for being LGBTQ. Id. Undeterred, however, Defendants proceeded to publish the Rule, unchanged, in the Federal Register on June 19, 2020. IV. THE 2020 RULE IS ARBITRARY, CAPRICIOUS, AND CONTRARY TO LAW
85. The 2020 Rule fails to properly account for Bostock or the overwhelming weight of case law interpreting Section 1557, the immense evidence before HHS describing the myriad ways in which the proposed Rule will violate Section 1557 and frustrate the ACA’s antidiscrimination mandate, and the substantial evidence that the Rule will harm LGBTQ people, women and other individuals seeking reproductive health care or with pregnancy-related conditions, LEP individuals, and other individuals experiencing discrimination that ACA and Section 1557 are intended to protect.
86. Specifically, the 2020 Rule: a. strips HHS’s Section 1557 regulations of the express protections against discrimination based on gender identity, sex stereotypes, and pregnancy-
9 Id.
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related conditions by (1) removing the definition of “on the basis of sex” in 45 C.F.R. § 92.4 that clarified that these are all forms of prohibited sex discrimination, and repeating scores of times throughout the Rule’s preamble the Department’s legally and factually flawed position that discrimination “on the basis of sex” does not include discrimination against transgender people, id. at 37,168, 37,177-80, 37,183-97; and (2) deleting the specific prohibitions on discriminatory treatment of transgender people contained in §§ 92.206-207 of the 2016 regulations, including the prohibition on categorical coverage exclusions on transition-related care and the requirement that “a covered entity shall treat individuals consistent with their gender identity;” b. redefines “health program and activity” to newly exclude HHS programs not established under the ACA and health insurers not “principally engaged” in providing health treatments and services (except with respect to those insurers’ plans on the marketplace or that directly receive federal funding) from the regulation’s scope, id. at 37,244-45 (§ 92.3); c. guts the 2016 Rule’s detailed language access requirements, including deleting the notice and tagline requirements, removing the sample nondiscrimination notices and taglines contained in the 2016 Rule, and giving covered entities broad discretion to decide for themselves whether to provide language access services at all based on a lenient four-factor test that fails to account for individualized language needs of LEP individuals, id. at 37,24546 (§ 92.101);
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d. adopts broad religious exemptions not authorized by Section 1557’s statutory language, effectively permitting religiously-affiliated providers and insurers to limit or deny care and coverage to patients and consumers for discriminatory reasons, id. at 37,205, 37,207-08;
e. removes the 2016 Rule’s uniform enforcement standard and adopts a fractured, piecemeal approach with different enforcement mechanisms for different protected classes, id. at 37,162;
f. amends HHS’s Title IX implementing regulations to incorporate religious exemptions broader than those required by Title IX, deleting the specific prohibition on “[a]iding or perpetuating discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees;” id. at 37,207-08, and
g. strikes existing express prohibitions on sexual orientation and gender identity discrimination from grant program requirements for managed care programs and the Programs for All-Inclusive Care for the Elderly (“PACE”) program, which are wholly unrelated to Section 1557 or the ACA. Id. at 37,218-19.
87. In rolling back these protections, the Department did not attempt to rebut its earlier factual findings showing the pervasiveness of discrimination and health barriers to transgender people, women and others seeking reproductive health care, LEP individuals, and members of other protected groups, nor could it, as the administrative records developed through the 2013 RFI, 2015 NPRM, and 2019 NPRM demonstrate the significant and ongoing barriers to health care imposed by discrimination by health care providers and health insurers. Unlike the
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2016 Rule, which properly considered the public health costs of delayed or denied care resulting from discrimination in its cost-benefit analysis, the Department’s regulatory impact analysis in the 2020 Rule was silent on adverse public health effects, and the related costs to individuals, state and local governments, providers, and insurers, rendering the cost-benefit analysis fundamentally flawed and unreliable.
88. The 2020 Rule’s amendments to the existing Section 1557 regulations, individually and collectively, violate Section 1554 of the ACA, 42 U.S.C. § 18114, because they create unreasonable barriers to care, impede timely access to health care services, and limit the availability of health care treatments. Moreover, the Rule’s language access provisions interfere with communications regarding a full range of treatment options between LEP patients and their providers, and restrict the ability of health care providers to provide full disclosure of all relevant information to LEP patients making health care decisions.
A. The 2020 Rule’s elimination of express sex discrimination protections for transgender people and individuals with pregnancy-related conditions is arbitrary, capricious, and contrary to law.
89. The 2020 Rule’s removal of the definition of “on the basis of sex” from HHS’s Section 1557 regulations, which removes gender identity, sex stereotyping, and pregnancyrelated conditions as forms of expressly prohibited sex discrimination, is contrary to law because it conflicts with well-established judicial interpretations of Section 1557 and other federal civil rights laws prohibiting discrimination on the basis of sex, including the Supreme Court’s recent decision in Bostock holding that discrimination based on transgender status or sexual orientation is discrimination on the basis of sex. The Rule is also arbitrary and capricious because it disregards Bostock and the weight of applicable federal case law holding that prohibited
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discrimination on the basis of sex includes discrimination based on sex stereotypes, gender identity, sexual orientation, and pregnancy-related conditions.
90. Section 1557 incorporates Title IX’s prohibition on discrimination “on the basis of sex,” and that prohibition must therefore be construed consistently with Title IX. The Supreme Court has consistently recognized that Title IX must be construed expansively to “accord it a sweep as broad as its language,” North Haven Board of Education v. Bell, 456 U.S. 512, 521 (1982), and, therefore “covers a wide range of intentional unequal treatment” on the basis of sex, Jackson v. Birmingham Board of Education, 544 U.S. 167, 175 (2005). Accordingly, Section 1557 contains similarly broad protections against the various forms of discrimination “on the ground prohibited under” Title IX, i.e., on the basis of sex, in the health care context. 42 U.S.C. § 18116(a).
91. The Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), established that Title VII prohibits discrimination based on sex stereotypes. Since then, federal courts have consistently interpreted other federal laws prohibiting sex discrimination, including Title IX and Section 1557, to similarly prohibit discrimination based on sex stereotypes. The 2020 Rule’s removal of the express prohibition on sex stereotyping as a form of prohibited discrimination conflicts with this well-established case law.
92. Even before the Supreme Court’s June 15, 2020 decision in Bostock confirming that federal sex discrimination protections forbid discrimination against LGBTQ people based on gender identity, transgender status, sexual orientation, or sex stereotyping, numerous federal appeals courts had already held that LGBTQ people were protected against discrimination on these bases. See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 131-32 (2d Cir. 2018) (en banc) (sexual orientation discrimination is a form of sex discrimination under Title VII), aff’d
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sub nom., Bostock, 140 S. Ct. at 1754; Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 35152 (7th Cir. 2017) (en banc) (same); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574-75 (6th Cir. 2018) (discrimination against transgender employee based on sex stereotypes and transgender status violated Title VII), aff’d sub nom., Bostock, 140 S. Ct. at 1754; Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049-50, 1054 (7th Cir. 2017) (discrimination against transgender student was sex discrimination in violation of Title IX and the Fourteenth Amendment’s Equal Protection Clause); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (transgender girl denied access to girls’ restroom likely to succeed on Title IX claim); Glenn v. Brumby, 663 F.3d 1312, 1321 (11th Cir. 2011) (discrimination against transgender employee, which violated Fourteenth Amendment’s Equal Protection Clause, would also violate Title VII); Barnes v. City of Cincinnati, 401 F.3d 729, 74041 (6th Cir. 2005) (transgender employee stated Title VII claim under sex stereotyping theory); Smith v. City of Salem, 378 F.3d 566, 572 (6th Cir. 2004) (same); Schwenk v. Hartford, 204 F.3d 1187, 1200-02 (9th Cir. 2000) (transgender plaintiff stated sex discrimination claim under Gender Motivated Violence Act); Rosa v. Park W. Bank & Tr. Co., 214 F.3d 213, 216 (1st Cir. 2000) (transgender customer stated sex discrimination claim under Equal Credit Opportunity Act).
93. Consistent with this precedent, federal district courts have consistently interpreted Section 1557 to prohibit health care discrimination against transgender people. See Flack v. Wis. Dep’t of Health Servs., 395 F. Supp. 3d 1001, 1014-22 (W.D. Wis. 2019) (holding state Medicaid program’s categorical exclusion on gender-confirming treatments and services violated Section 1557, the Medicaid Act, and the Fourteenth Amendment’s Equal Protection Clause, and permanently enjoining the exclusion); Boyden v. Conlin, 341 F. Supp. 3d 979, 997, 1002-03
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(W.D. Wis. 2018) (holding similar exclusion under state employee health plan violated Section 1557, Title VII, and the Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 953 (D. Minn. 2018) (finding that “Section 1557 . . . prohibits discrimination on the basis of gender identity.”); Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1099 (S.D. Cal. 2017) (recognizing that “discrimination on the basis of transgender identity is discrimination on the basis of sex” cognizable under Section 1557).
94. Defendants, in promulgating the 2020 Rule, ignored or discounted this case law— the reasoning of which was validated by the Supreme Court’s decision in Bostock. Instead, Defendants relied on: decisions from the Franciscan Alliance case in the Northern District of Texas adopting a contrary interpretation (now abrogated by Bostock), Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016), Franciscan All., Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019); dissenting opinions from circuit cases concluding that federal sex discrimination laws prohibit sexual orientation and gender identity discrimination; and the Department of Justice’s since-rejected arguments contained in Supreme Court briefing in Bostock. See 85 Fed. Reg. 37,179 n.83, 37,194 n. 201. HHS’s flawed legal analysis was unsupportable at the time the Rule was promulgated. But even if this legal authority had been sufficient when the 2019 NPRM was published—which it was not—none of this analysis survives Bostock. The 2020 Rule’s continued reliance on this authority for its revisions is arbitrary, capricious, and contrary to law.
95. In the 2019 NPRM, the Department recognized “the likelihood that the Supreme Court will be addressing the issue in the near future” of whether federal sex discrimination statutes prohibit discrimination on the basis of transgender status and sexual orientation, and that the expected decision in Bostock and its companion cases “will likely have ramifications for the
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definition of ‘sex’” under Section 1557. 84 Fed. Reg. 27,855, 27,857. Yet, when Bostock ultimately contradicted their favored position, Defendants promulgated the Rule anyway, without altering their entirely rebuked theory that sex discrimination protections are only based on an alleged “biological binary of male and female,” 85 Fed. Reg. 37,178, n.74, or otherwise attempting to explain how the purported legal justifications for the Rule survived Bostock. The Department’s decision to do so was arbitrary, capricious, and contrary to law.
96. Gender identity is an innate, internal sense of one’s sex—i.e., being male, female, or nonbinary—and is a basic, immutable part of every person’s core identity. Transgender people have a gender identity that is different than the sex they were assigned at birth. The 2020 Rule’s removal of the mandate that covered entities treat transgender people consistent with their gender identity—and its elimination of the express prohibition on discriminatory insurance coverage policies (including categorical exclusions or limitations on transition-related treatments and services)—arbitrarily and capriciously disregards the strong record evidence that failing to respect transgender people’s gender identity in health care settings is discriminatory, harmful, and increases the likelihood that they will experience delay or denial of necessary care. Defendants’ failure to properly consider the harms to transgender people’s health and well-being was arbitrary and capricious.
97. In addition, the 2020 Rule’s removal of pregnancy-related conditions as recognized forms of sex discrimination was arbitrary, capricious, and contrary to law because it failed to account for, and is at odds with, settled case law holding that unlawful discrimination on the basis of sex includes discrimination based on pregnancy status. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 198-99 (1991); Newport News Shipbuilding & Dry Dock Co. v.
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EEOC, 462 U.S. 669, 684 (1983); DeMarco v. CooperVision, Inc., 369 F. App’x 254, 255 (2d Cir. 2010).
98. The 2020 Rule’s removal of specific requirements for equal access to health care programs and specific prohibitions against discrimination on the basis of sex in health insurance coverage and benefit design is also arbitrary, capricious, and not in accordance with law. See 85 Fed. Reg. 37,183-201 (discussing 2016 Rule provisions codified at 45 C.F.R. §§ 92.206, 92.207). Elimination of the 2016 Rule’s explicit prohibition on discriminatory insurance plan benefit design, codified at 45 C.F.R. § 92.207, conflicts with the ACA and will hurt patients. See 85 Fed. Reg. 37,176-177. It will allow insurers to discriminate in benefit design by, for example, meeting the minimum requirements necessary to be certified, but shaping the plan so that all of the benefits necessary to treat certain conditions are placed in the highest cost-sharing tier.
B. The 2020 Rule’s exclusion from the Rule’s scope of health insurers not “principally engaged in the business” of providing health treatments and services, as well as many HHS-administered programs, is arbitrary, capricious, and contrary to law.
99. The statutory text of Section 1557 unambiguously provides that Section 1557’s prohibitions apply to “any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments).” 42 U.S.C. § 18116(a) (emphases added). By these express terms—which are consistent with the central objective of the ACA to combat discrimination in both the provision of health care services and health insurance—the law applies to all of the operations of health providers, health systems, insurance companies, state and local agencies, and other covered entities that receive any federal financial assistance.
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100. The 2020 Rule dramatically narrows the scope of entities covered under Section 1557 in two ways, both in direct contravention of the plain text of the statute. In so doing, the 2020 Rule arbitrarily and capriciously undermines the purpose of the ACA, namely, to increase access to quality, affordable care in a nondiscriminatory manner.
101. First, the Rule purports to limit Section 1557’s reach only to HHS programs established under Title I of the ACA, and not to other HHS programs or health programs or activities administered by other federal agencies. 85 Fed. Reg. 37,170. This limitation is contrary to Section 1557’s plain text, which applies Section 1557 to “any program or activity that is administered by an Executive Agency or any entity established under this title,” 42 U.S.C. § 18116(a) (emphases added). Defendants turn Section 1557’s text on its head by attempting to exclude from Section 1557’s scope all health programs or activities administered by HHS and other executive agencies except for those programs established by HHS under Title I of the ACA. This erroneous construction is arbitrary, capricious, and contrary to Section 1557’s mandate.
102. Second, the 2020 Rule purports to exclude the operations of entities not “principally engaged in the business of healthcare,” narrowly and arbitrarily defining “healthcare” to exclude the provision of health insurance. 85 Fed. Reg. 37,244-45 (§ 91.2(b)-(c). As the plain text of the statute and the 2016 Rule explain, Section 1557 applies to all of the operations of any health insurer and other health programs and activities, if some part of that insurer’s operations received federal financial assistance or if that insurer offered a plan on an exchange. 42 U.S.C. § 18116(a); 81 Fed. Reg. 31,430-31. For example, if a health insurer offered an insurance plan on an exchange, Section 1557’s protections apply to all of the insurer’s other plans and products, such as private employer-based health plans. Now, under the 2020
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Rule, any individual not on a marketplace plan or plan that receives federal financial assistance experiencing discrimination on any prohibited basis will be unable to challenge that discrimination through OCR’s administrative enforcement process.
103. This redefinition impermissibly narrows the broad definition of “covered entity” contained in the statute itself; improperly attempts to rewrite the statute by replacing the word “health” with “healthcare;” arbitrarily defines “healthcare” to exclude health insurance; and, by excluding many insurance beneficiaries from Section 1557’s protections, frustrates the ACA’s antidiscrimination mandate and central purpose of expanding nondiscriminatory access to health services and insurance. Contrary to Section 1557’s statutory mandate, the Rule will wrongfully exclude private insurers, the FEHB program, and Medicare Part B plans, among others, from the Rule’s scope.
104. For these reasons, the 2020 Rule’s redefinition of covered “health program or activity” and the purported limitations on Section 1557’s scope resulting from that redefinition, are arbitrary, capricious, and contrary to law.
C. The 2020 Rule’s elimination of critical language access protections is arbitrary, capricious, and contrary to law.
105. Section 1557 incorporates Title VI’s prohibition on national origin discrimination, 42 U.S.C. § 2000d, under which federal funding recipients are obligated to provide meaningful access to their programs to LEP individuals. See Lau v. Nichols, 414 U.S. 563, 568-59 (1974).
106. To effectuate Section 1557’s prohibition on national origin discrimination, and recognizing the systemic barriers to health care faced by LEP individuals, the 2016 Rule contained strong protections intended “to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in [a covered entity’s] health programs and activities.” 81 Fed. Reg. 31,470 (§ 92.201(a)) (emphasis added).
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The 2016 Rule’s focus on providing meaningful language access to individuals was consistent with Section 1557’s prohibition on discrimination against “an individual,” 42 U.S.C. § 18116(a), not on LEP individuals as a group. The 2016 Rule provided that language assistance services “must be provided free of charge, be accurate and timely, and protect the privacy and independence of the individual with limited English proficiency.” 81 Fed. Reg. 31,470 (§ 92.201(c)).
107. To determine covered entities’ compliance with Section 1557, the 2016 Rule established standards by which HHS could determine whether an individual was provided meaningful access to a health program or activity through adequate language assistance services, using a two-part inquiry. 81 Fed. Reg. 31,470 (§ 92.201(b)). This inquiry required HHS to: “(1) [e]valuate, and give substantial weight to, the nature and importance of the health program or activity and the particular communication at issue, to the individual with limited English proficiency; and (2) [t]ake into account other relevant factors, including whether a covered entity has developed and implemented an effective written language access plan, that is appropriate to its particular circumstances, to be prepared to meet its obligations . . . .” Id.
108. Contrary to the statutory text, the 2020 Rule removes the requirement of providing adequate language assistance services to LEP individuals, requiring merely that a covered entity “take reasonable steps to ensure meaningful access to [its] programs and activities by limited English proficient individuals” in general. 85 Fed. Reg. 37,245 (§ 92.101(a)).
109. In addition, the 2020 Rule requires covered entities to provide language assistance services only after a self-assessment undertaken by the covered entities themselves. 85 Fed. Reg. 37,245 (§ 92.101(b)). An entity must consider:
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(i) [t]he number or proportion of limited English proficient individuals eligible to be served or likely to be encountered in the eligible service population; (ii) [t]he frequency with which LEP individuals come in contact with the entity’s health program, activity, or service; (iii) [t]he nature and importance of the entity’s health program, activity, or service; and (iv) [t]he resources available to the entity and costs. Id. Thus, HHS authorizes entities to decide, in the first instance, that they serve too few LEP individuals or have insufficient resources to warrant providing language assistance services. The Rule imposes certain requirements—including that language assistance services be offered free of charge—only when the entity has determined, based on its self-assessment, that it is obligated to provide such services at all. Id. 110. The 2020 Rule thus abandons the individualized assessments mandated by Section 1557 to ensure that every individual can seek and obtain health treatments, services, and insurance. In so doing, the 2020 Rule will likely result in many covered entities denying meaningful language assistance services to many LEP individuals. Even for entities in jurisdictions with stronger protections under state law, HHS’s abandonment of these requirements will force state governments to assume the sole enforcement role for such protections. 111. The 2020 Rule’s revision, which now authorizes covered entities to make a selfdetermination about whether to offer any language assistance services at all, with no specific directives or guidance on how an entity should weigh the factors in the four-factor inquiry, is arbitrary and capricious. 112. The 2020 Rule also deletes the existing regulation’s notice and tagline requirements, and the sample translated notices and taglines that HHS previously provided to covered entities. The 2016 Rule mandated that covered entities notify LEP individuals of their
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rights to language assistance services and their ability to complain about a denial of such services. 81 Fed. Reg. 31,442. In contrast, the 2020 Rule will effectively deny information to LEP individuals on their rights to language assistance while seeking and obtaining health care services, as well as information on how to seek redress if those services are wrongfully denied. The elimination of these notice requirements is arbitrary and capricious because the 2020 Rule effectively delegates compliance with language assistance requirements to covered entities themselves.
113. These revisions are arbitrary and capricious because Defendants failed to properly consider the likelihood that the revisions will result in LEP individuals being denied language assistance services—and thus deny these individuals the ability to access health care and services, to communicate effectively with providers and insurers, or to understand their treatment regimens, among other things. Because the revisions will result in discriminatory denial or limitation of access to health programs and activities on the basis of national origin, they conflict with Section 1557, frustrate its antidiscrimination mandate, and are arbitrary, capricious, and contrary to law.
114. Defendants purport to justify the removal of these protections based, in large part, on the costs associated with the 2016 Rule’s tagline requirement. 85 Fed. Reg. 37,162, 37,211, 37,224, 37,227, 37,232. But Defendants fail to adequately consider the harms of the Rule, including the cost of confusion engendered by the removal of taglines and notices, the public health implications of reducing access to care and treatment, and the frustration of the ACA’s mandate to expand access to health care.
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D. The 2020 Rule’s addition of a broad religious exemption is arbitrary and capricious, contrary to law, and exceeds HHS’s statutory authority.
115. The 2020 Rule improperly incorporates the blanket religious exemption and “abortion neutrality” provision contained in Title IX, 20 U.S.C. §§ 1681(a)(3), 1688, into the Department’s Section 1557 regulations.
116. Unlike Title IX—which expressly exempts religiously affiliated educational institutions from provisions of Title IX that conflict with the institution’s religious tenets, see 20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12—Section 1557 contains no religious exemption and does not authorize HHS to create a blanket exemption applicable to health programs and activities.
117. Although Section 1557 incorporates the protected classifications contained in Title VI, Title IX, the Age Act, and Section 504 by banning discrimination “on the grounds prohibited under” those statutes, 42 U.S.C. § 18116(a), it does not incorporate those statute’s exceptions. To the contrary, the statute makes clear that its nondiscrimination prohibitions apply broadly to all covered entities, “except as otherwise provided for in [Title I of the ACA].” Title I, like Section 1557, contains no religious exemption or abortion exception.
118. The Department, when it promulgated the 2016 Rule, correctly declined to incorporate Title IX’s enumerated exceptions, including the religious exemption, on the grounds that these exceptions specifically applied to educational institutions and were inapplicable in the health care context. It also correctly declined to incorporate Title IX’s “abortion neutrality” provision into the regulation, as Section 1557 itself does not incorporate that provision or otherwise limit the application of its protections with respect to abortion.
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119. The 2020 Rule’s incorporation of these provisions from Title IX is contrary to law and in excess of the Department’s statutory authority, as Section 1557 neither contains these exemptions nor authorizes HHS to import them from other statutes.
120. The 2020 Rule’s incorporation of these provisions is arbitrary and capricious because the Department failed to sufficiently justify the reversal of its earlier reasoning that incorporation of these exemptions was improper. The addition of a blanket religious exemption into the Section 1557 regulations is also arbitrary and capricious because the Department failed to justify the application of exemptions designed to apply to educational institutions to the very different context of health care, or to sufficiently acknowledge or account for the harms to individuals who will be denied health treatments, services, and insurance coverage because of these exemptions.
121. In so doing, the 2020 Rule fails to account for the fact that religiously affiliated health systems and insurers are becoming increasingly common in the American health care system and, for many people, are the only options available. Because many individuals— particularly in rural areas—have limited health care options, these exemptions will, in many cases, effectively deny access to medically necessary care because of discrimination. See 81 Fed. Reg. 31,380. This harm, which the Rule arbitrarily and capriciously fails to adequately consider, frustrates Section 1557’s antidiscrimination mandate and the ACA’s purpose of expanding access to health care.
E. The 2020 Rule’s elimination of the 2016 Rule’s uniform enforcement scheme is arbitrary and capricious.
122. The 2016 Rule imposed a uniform enforcement scheme for Section 1557, incorporating and adapting the enforcement mechanisms under Title VI, Title IX, the Age Act, and Section 504 into a single enforcement standard for all forms of prohibited discrimination
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under Section 1557. 81 Fed. Reg. 31,439-40, 31,444. The Department correctly determined that Section 1557 did not incorporate different enforcement mechanisms for discrimination on different bases, addressing concerns that doing so would create different standards for different protected classes. Id. at 31,439-40.
123. The 2020 Rule reversed this position without a reasonable explanation or sufficient justification. It deleted the provisions providing uniformity across protected classifications including, for example, those provisions confirming that Section 1557 contains an implied private right of action, that complainants and private litigants are entitled to compensatory damages in appropriate circumstances, that disparate impact claims are cognizable under Section 1557, and that associational discrimination is a form of prohibited discrimination under the law. 85 Fed. Reg. 37,195, 37,199, 37,202-03, 37,203. In its place, the Rule adopts a fractured approach incorporating, by reference, the various and conflicting enforcement standards under Title VI, Title IX, the Age Act, and Section 504 for claims of discrimination on the specific bases prohibited under each statute.
124. By adopting this hodge-podge approach, under which victims of discrimination prohibited under Section 1557 have different rights depending on whether that discrimination was based on race, national origin, sex, age, or disability, the 2020 Rule arbitrarily and capriciously creates a confusing, illogical, and unduly burdensome set of standards that conflict with Section 1557’s plain language and frustrate the statute’s antidiscrimination mandate. The standard is arbitrary and capricious because it fails to adequately address concerns adduced during the rulemaking process about how the Department would handle claims of intersectional discrimination (e.g., discrimination against an individual based both on race and disability). Defendants claim that the 2016 Rule’s uniform enforcement standard was “confusing” and a
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“patchwork regulatory framework.” Id. at 37,162, 37,202. But they fail to adequately explain how that uniform system, with clear requirements tailored to the health care context that applied to all forms of prohibited discrimination, was “confusing,” or how the actual patchwork approach adopted by the 2020 Rule addressed that confusion. For these reasons, the Rule is arbitrary and capricious.
F. The 2020 Rule’s amendment of HHS’s Title IX regulations is arbitrary, capricious, and contrary to law.
125. In addition to amending HHS’s Section 1557 regulations, the 2020 Rule also makes so-called “conforming” amendments to HHS’s Title IX regulations. 85 Fed. Reg. 37,24345 (to be codified at 45 C.F.R. pt. 86).
126. These amendments arbitrarily remove the longstanding prohibition on “[a]id[ing] or perpetuat[ing] discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees.” 45 C.F.R. § 86.31(b)(7).
127. Defendants do not adequately explain the removal of this prohibition, which is identical to like prohibitions in other agencies’ Title IX regulations, including the Department of Education’s Title IX regulations, 34 C.F.R. § 106.31(b)(6). As the removal is without sufficient basis, sanctions the use of federal funds for discriminatory purposes, and frustrates Title IX’s broad antidiscrimination mandate, it is arbitrary, capricious, and contrary to law.
G. The 2020 Rule’s removal of protections against discrimination on the basis of sexual orientation and gender identity from unrelated regulations is arbitrary, capricious, and contrary to law.
128. The 2020 Rule also contains purported “conforming amendments” to several regulations of the Center for Medicaid and Medicare Services (“CMS”), a component of HHS, governing certain CMS contracts and programs. 85 Fed. Reg. 37,243 (to be codified at 42
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C.F.R. §§ 438.3, 438.206, 440.262, 460.98, and 460.112). These amendments removed express prohibitions on sexual orientation and gender identity discrimination by entities governed by those regulations.
129. These earlier protections were included in the 2016 Rule to further the ACA’s central purpose of expanding health care access and eliminating discrimination in health care and health insurance. See 45 C.F.R. §§ 147.104(e), 155.120(c)(1)(ii), 155.220(j)(2)(i), 156.200(e), 156.1230(b)(2).
130. These revisions are arbitrary and capricious because the removal of these express protections conflicts with the ACA’s central purpose of dismantling discriminatory barriers to health care by eliminating protections against LGBTQ people without sufficient justification, despite the fact that Defendants had no legal obligation, under Section 1557, the ACA, or otherwise, to revisit these protections.
131. Defendants failed to sufficiently address the public comments and other evidence objecting to these changes as unlawful and harmful to LGBTQ people.
132. The removal of these provisions is contrary to law because it conflicts with HHS’s statutory mandate under Section 1557 not to discriminate on the basis of sex in any of its programs or activities. After Bostock, there is no question that discrimination based on sexual orientation and transgender status is prohibited discrimination “on the basis” of sex under federal civil rights laws, including under Section 1557, and HHS is required to administer its programs accordingly. By removing these protections, the Department erroneously suggests that covered entities are no longer prohibited from discriminating against individuals on these bases. The Department’s publication of the Rule after Bostock and its failure to account for this intervening legal development are arbitrary and capricious.
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133. These revisions are also arbitrary and capricious because Defendants did not estimate the costs or benefits of eliminating these protections.
H. The 2020 Rule was based on a flawed cost-benefit analysis that failed to account for significant costs, including those related to delayed or denied care resulting from discrimination, and is therefore arbitrary and capricious.
134. Defendants failed to consider the harms attendant to the 2020 Rule, protesting that they lack data to consider those harms, rather than grappling with the serious costs imposed by the Rule. Thus, the Rule fails to take account of the substantial data, reports, and studies submitted by commenters.
135. The Rule makes no effort to take the costs or harms to transgender people into account, stating: “the Department [] lacks the data necessary to estimate the number of individuals who currently benefit from covered entities’ policies governing discrimination on the basis of gender identity who would no longer receive those benefits after publication of this rule.” 85 Fed. Reg. 37,225. And the Department “lacks data to estimate what greater public health costs, cost-shifting, and expenses may result from entities changing their nondiscrimination policies and procedures after promulgation of this rule.” Id. Despite lacking data, making no effort to collect such data, and entirely disregarding extensive comments detailing those harms, the Department chose to baldly assert, without support, that it “believes the[] effects will be minimal.” Id.
136. Similarly, HHS acknowledges that repealing notice and tagline requirements “may impose costs, such as decreasing access to, and utilization of, healthcare for non-English speakers by reducing their awareness of available translation services.” Id. at 37,232. But the Department “does not believe it has data” to calculate the value of benefits to individuals needing translation services. Id. at 37,233. HHS also acknowledges that LEP individuals may
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not be made aware of their right to file complaints with OCR. Id. at 37,234. But HHS states that it is “not . . . aware of a way to quantify [the] potential effects” of the remediable grievances LEP patients will suffer as a result. Id. Instead, the Department concludes that the repeal of notice and taglines will save regulated entities $585 million in annual costs with no measurable cost to LEP individuals from decreased access and information. Id. at 37,224.
137. With respect to changes to the language access plan provisions, HHS “acknowledges the potential of reduced awareness of the availability of language services by LEP individuals by the changes made in this rule,” but concludes that the changes will save regulated entities $14.7 million with no measurable cost to LEP individuals or the public. Id. at 37,235.
138. HHS also claims it “lacks data or methods enabling it to provide quantitative estimates of any alleged economic impacts related to termination of pregnancy provisions” and refuses to calculate costs that would result from adopting Title IX’s religious exemption. Id. at 37,239.
139. HHS also fails to consider costs from the public health harms that will result from the Rule, including, but not limited to, potential delays in or opting out of care due to increased discrimination and resulting adverse health outcomes and greater overall health care costs.
140. Nor did HHS consider costs that will arise from confusion caused by the Rule. 141. HHS’s failure to consider significant costs is particularly problematic because it reverses the protections contained in the 2016 Rule, which induced significant reliance interests by individuals, health care providers, health insurers, and state and local governments, among others.
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142. The flawed cost-benefit analysis and failure to consider harms renders the Rule
arbitrary and capricious.
I. The 2020 Rule is contrary to Section 1554 of the ACA
143. Section 1554 of the ACA forbids the HHS Secretary from promulgating “any
regulation” that:
creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; (2) impedes timely access to health care services; (3) interferes with communications regarding a full range of treatment options between the patient and provider; (4) restricts the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions; [or] (5) violates the principles of informed consent and the ethical standards of health care professionals. 42 U.S.C. § 18114.
144. The Rule violates Section 1554 by creating unreasonable barriers and impeding
timely access to medical care, including to patients on the basis of race, color, national origin,
sex, disability, and age. The Rule violates this provision by reversing nondiscrimination protections Defendants long recognized were needed to avoid patients being “denied
opportunities to obtain [health care services provided to others, with resulting adverse effects on
their health status,” 80 Fed. Reg. 54,194; see also 81 Fed. Reg. 31,444, and by eliminating access
to language provisions.
V. THE 2020 RULE WAS IMPROPERLY MOTIVATED BY DEFENDANTS’ ANIMUS TOWARDS TRANSGENDER PEOPLE AND ANTIPATHY TO THEIR HEALTH CARE NEEDS
145. Defendants’ reinterpretation of Section 1557’s prohibition of discrimination “on
the basis of sex” to exclude transgender people from the law’s reach conflicts with the plain
language of the statute, and arbitrarily and capriciously removes express protections from the
existing regulations. Defendants’ new policy is not the product of reasoned decision-making,
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nor is it based on a valid interpretation of the law or the prevailing medical consensus on the health care needs of transgender people. Rather, it is part of Defendants’ long-running campaign to attack the civil rights of transgender Americans and to push members of that community back to the margins of society, a campaign fueled by Defendants’ own well-documented contempt for transgender people and the entire LGBTQ community. Defendants have intended to undermine Section 1557’s statutory protections, as correctly articulated in the 2016 Rule, since the earliest days of the Trump Administration. The 2020 Rule fulfills Defendants’ preordained—and unjustifiable—goal of imposing barriers to transgender Americans’ access to health care through the Section 1557 rulemaking process.
146. Defendants have acted with full awareness and disregard of the harms that the 2020 Rule will impose on transgender people and other members of the LGBTQ community. During the notice and comment period, Defendants received thousands of comments opposing the Rule because it would disproportionately impact members of the LGBTQ community.10 In the Rule, HHS acknowledged that commenters highlighted the harms the Rule would impose on LGBTQ people, including increased discrimination, increased barriers to health care, and stigma. See 85 Fed. Reg. 37,181. Nevertheless, HHS dismissed this evidence, contending implausibly that “[t]he Department knows of no data showing that the proper enforcement of Federal nondiscrimination law according to statutory text,” i.e., based on HHS’s erroneous view that
10 See, e.g., Comment of 22 State Attorneys General, 10-11, https://www.regulations.gov/document?D=HHS-OCR2019-0007-142194; Comment of Lambda Legal, https://www.regulations.gov/document?D=HHS-OCR-2013-00070161; Comment of National Center for Lesbian Rights, 2-6, 9-10, https://www regulations.gov/document?D=HHSOCR-2013-0007-0145; Comment of Transgender Legal Defense and Educational Fund, https://www.regulations.gov/document?D=HHS-OCR-2019-0007-149238; Comment of National Health Law Program, 51-59, https://www.regulations.gov/document?D=HHS-OCR-2019-0007-127004; Comment of CenterLink: The Community of LGBT Centers, https://www regulations.gov/document?D=HHS-OCR-2019-000783839; Comment of Callen-Lorde Community Health Center, https://www.regulations.gov/document?D=HHSOCR-2019-0007-83372; Comment of American Psychiatric Association, 2-4, https://www.regulations.gov/document?D=HHS-OCR-2019-0007-107673;
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Section 1557’s protections only applied to “biological” sex, “will disproportionately burden individuals on the basis of sexual orientation or gender identity.” Id. at 37,181-82.
147. Moreover, after the Supreme Court’s decision in Bostock, Defendants’ primary purported justification for promulgating the 2020 Rule—to “address legal concerns” that the 2016 Rule impermissibly interpreted Section 1557 to protect transgender people—was eviscerated. Remarkably, the 2020 Rule cited the government’s briefing in Bostock, but not the Supreme Court’s intervening decision rejecting the arguments in that briefing, as “authority” for that position. See id. at 37,178. Defendants’ decision to flout the Supreme Court’s Bostock opinion—similar to their decision, in the 2019 NPRM, to brush aside binding circuit court precedent contradicting their position, see supra ¶ 92—only confirms that Defendants’ decision to promulgate, and ultimately finalize, the 2020 Rule was based on discriminatory animus and a predetermined decision to attack transgender people’s health care rights, with or without legal support.
A. The 2020 Rule is part of the Trump Administration’s campaign to eradicate civil rights protections for transgender people.
148. The 2020 Rule is of a piece with the Trump Administration’s rhetoric and policies, which have long reflected a deep animus toward the LGBTQ community and transgender people in particular. From the first days of the Administration, the White House and federal agencies, including HHS, have engaged in a sustained effort to reverse civil rights protections for this community.
149. During the Obama Administration, federal agencies, including HHS, interpreted and enforced federal prohibitions on sex discrimination to include discrimination based on gender identity or transgender status. Attorney General Eric Holder, in a December 2014 memorandum, advised Department of Justice officials that, based on the weight of recent
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developments in federal sex discrimination case law, “the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status,” and, in turn, “the Department [of Justice] will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”11
150. Less than a year after the 2016 Rule was promulgated, the Trump Administration betrayed this commitment and, across federal agencies, began to dismantle federal protections for transgender people.
151. Numerous statements and actions by the President and high-ranking officials in his Administration, including HHS officials, reflect animus toward transgender people, an ongoing pattern of overt bias against the LGBTQ community at large, and a desire to roll back civil rights protections for this community. Delivering on his campaign promises to attack LGBTQ rights, including to “strongly consider” appointing judges to reverse the Supreme Court’s recent marriage equality decision, 12 the Administration, has, among many other examples, done the following:
 On February 22, 2017, the Departments of Education and Justice withdrew a guidance document to schools on their obligations under Title IX to treat transgender students in a nondiscriminatory way.13
11 Mem. from Attorney General to U.S. Attorneys and Heads of Department Components, Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014), https://www.justice.gov/file/188671/download. 12 Elise Viebeck, Trump Attacks Supreme Court Decision Legalizing Same-Sex Marriage, Wash. Post (Jan. 31, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/01/31/trump-attacks-supreme-court-decisionlegalizing-same-sex-marriage/. 13 See U.S. Dep’t of Educ. & U.S. Dep’t of Justice, Dear Colleague Letter on Transgender Students (Feb. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx.
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 On July 26, 2017, the President abruptly declared in a series of tweets that “the United States Government will not accept or allow … [t]ransgender individuals to serve in any capacity in the U.S. Military,”14 despite the fact that transgender people were already serving in the military. The Pentagon, at the President’s direction, subsequently adopted a policy banning enlistment by transgender individuals.15
 On October 4, 2017, Attorney General Sessions issued a memorandum to United States Attorneys and other Department of Justice (“DOJ”) officials, reversing DOJ’s position that Title VII’s sex discrimination prohibition includes discrimination against transgender people based on gender identity. In the memorandum, Attorney General Sessions wrote, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”16 The memorandum directed DOJ officials to adopt this litigation position in all pending and future matters.
 Days later, media reports quoted President Trump, in a discussion regarding LGBTQ rights, as motioning toward Vice President Pence and joking, “Don’t ask that guy—
14 Jeremy Diamond, Trump to Reinstate US Military Ban on Transgender People, CNN (July 26, 2017), https://www.cnn.com/2017/07/26/politics/trump-military-transgender/index.html. 15 Presidential Mem. for Sec’y of Defense and Sec’y of Homeland Security (Aug. 25, 2017), https://www.whitehouse.gov/presidential-actions/presidential-memorandum-secretary-defense-secretary-homelandsecurity/; Military Service by Transgender Individuals: Presidential Memorandum for the Sec’y of Defense and Sec’y of Homeland Security, 83 Fed. Reg. 13,367 (Mar. 23, 2018). 16 Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017), https://www.justice.gov/ag/page/file/1006981/download.
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he wants to hang them all!,”17 referencing the Vice President’s well-known disdain for LGBTQ people and his past efforts to restrict their rights.18
 On December 5, 2017, Press Secretary Sarah Huckabee Sanders admitted that President Trump supports businesses denying services to LGBTQ customers.19
 In May 2019, the President announced his opposition to the Equality Act (H.R. 5), the
federal legislation that would confirm and strengthen civil rights protections for LGBTQ Americans and others.20
 On July 1, 2020, the Department of Housing and Urban Development (“HUD”)
announced plans to promulgate a proposed rule modifying existing regulations to
allow emergency homeless shelter providers to deny housing based on a “good faith
belief that individual is not of the sex which the shelter’s policy accommodates,”
including appearance and physical characteristics, effectively opening the door for shelters to exclude transgender and other gender nonconforming individuals. 21 This
proposed rule would reverse HUD policy requiring, in accordance with the agency’s
nondiscrimination mandates, that individuals should be “placed, served, and
accommodated in accordance with the gender identity of the individual.” Id. §§
17 Derek Hawkins, Trump Reportedly Mocked Pence, Joked About Him Wanting to ‘Hang’ Gays, Wash. Post (Oct. 17, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/10/17/trump-mocked-pence-joked-abouthim-wanting-to-hang-gays-new-yorker-profile/. 18 Liam Stack, Mike Pence and ‘Conversion Therapy’: A History, N.Y. Times (Nov. 30, 2016), https://www nytimes.com/2016/11/30/us/politics/mike-pence-and-conversion-therapy-a-history.html. 19 Neal Broverman, Sarah Sanders: Trump OK With Businesses Hanging Antigay Signs, The Advocate (Dec. 5, 2017), https://www.advocate.com/politics/2017/12/05/sarah-sanders-trump-ok-businesses-hanging-antigay-signs. 20 Chris Johnson, Exclusive: Trump Comes Out Against Equality Act, Wash. Blade (May 13, 2019), https://www.washingtonblade.com/2019/05/13/exclusive-trump-comes-out-against-equality-act/. 21 HUD Updates Equal Access Rule, Returns Decision Making to Local Shelter Providers, U.S. Dep’t of Hous. & Urban Dev. (July 1, 2020), https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_099; see Proposed Modification Rule (July 1, 2020), https://www.hud.gov/sites/dfiles/PIH/documents/ProposedModificationRule.pdf.
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5.105(a)(2), 106(b)(2). HUD Secretary Ben Carson has been widely quoted mocking homeless transgender women as “‘big hairy men’ trying to infiltrate women’s homeless shelters.’”22 B. President Trump appointed Defendant Roger Severino to head HHS’s Office
for Civil Rights and to lead the agency’s attacking on the health care rights of LGBTQ people. 152. Since early in the Trump Administration, HHS has joined the broader efforts to roll back protections for LGBTQ people. 153. In 2017, President Trump appointed Defendant Roger Severino, an attorney with notorious and vocal opposition to LGBTQ rights, as the Director of HHS’s OCR. 154. In his previous role as the director of the Heritage Foundation’s DeVos Center for Religion and Civil Society, Severino frequently expressed his disdain for transgender people and Section 1557’s health care protections for them. 155. After the 2015 NPRM, Severino co-authored a Heritage Foundation report in January 2016, criticizing the proposed rule for conferring “special rights” on transgender people and asserting that “maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases,” and that “[g]ender identity and sexual orientation, unlike race or sex, are changeable, self-reported, and entirely self-defined characteristics.”23 A few months
22 E.g., Tracy Jan & Jeff Stein, HUD Secretary Ben Carson Makes Dismissive Comments About Transgender People, Angering Agency Staff, Wash. Post (Sept. 19, 2019), https://www.washingtonpost.com/business/2019/09/19/hud-secretary-ben-carson-makes-dismissive-commentsabout-transgender-people-angering-agency-staff/. 23 Roger Severino & Ryan T. Anderson, Proposed Obamacare Gender Identity Mandate Threatens Freedom of Conscience and the Independence of Physicians, Heritage Foundation, (Jan. 8, 2016), http://report heritage.org/bg3089.
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later, Severino co-authored another piece accusing the Obama Administration of “attempt[ing] to impose a new definition of what it means to be a man or a woman on the entire nation.” 24
156. In a separate May 2016 op-ed piece in the Daily Signal, Severino criticized DOJ’s lawsuit against North Carolina’s anti-transgender restroom bill, again decrying the Obama Administration’s enforcement of sex discrimination protections for transgender people.25 Describing marriage equality as “the start, not end, of the left’s LGBT agenda,” Severino declared that “the radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology.”26 In that same piece, Severino repeatedly misgendered transgender people, describing transgender girls as “boys” and transgender boys as “girls,” and attacked HHS’s then-proposed 2016 Rule as “add[ing] to the problems” of what he described as the federal government’s “overreach” in protecting the rights of transgender people.27 Severino has wrongfully belittled gender affirming medical procedures, including falsely describing certain gender-confirming procedures for transgender women as “breast implants in men and shaving down Adam’s apples.”28
157. In late 2016, Severino and former U.S. Senator Jim DeMint (then-president of the Heritage Foundation) co-wrote an op-ed in the Philadelphia Inquirer, characterizing the Obama Administration’s enforcement of federal sex discrimination protections to protect transgender
24 Ryan T. Anderson & Roger Severino, 3 Ways Conservative Lawmakers Should Fight Obama’s Bathroom Directive, Daily Signal (May 23, 2016), https://www.dailysignal.com/2016/05/23/3-ways-conservative-lawmakersshould-fight-obamas-bathroom-directive/. 25 Roger Severino, DOJ’s Lawsuit Against North Carolina Is Abuse of Power, Daily Signal (May 9, 2016), https://www.dailysignal.com/2016/05/09/dojs-lawsuit-against-north-carolina-is-abuse-of-power/. 26 Id. 27 Id. 28 Roger Severino, Pentagon’s Radical New Transgender Policy Defies Common Sense, Daily Signal (July 1, 2016), https://www.dailysignal.com/2016/06/30/pentagons-transgender-policy-at-odds-with-constitution/.
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people as “radical social experiments.”29 The op-ed referred to Gavin Grimm, a transgender teenage boy litigating a high-profile Title IX case against his Virginia school district for refusing to respect his male gender identity, misgendering him as “a gender-dysphoric teen girl” and improperly using the female pronoun “her” to refer to Grimm.30
158. Months later, Severino was appointed head of HHS’s OCR, where he has led the charge to undo the 2016 Rule and its protections for transgender people.
C. Since 2017, HHS has engaged in a Department-wide rollback of LGBTQ protections in its programs, activities, and policies.
159. Defendants’ reversal of the 2016 Rule is part of their broader campaign to eliminate or reduce protections for LGBTQ people.
160. For example, in early 2017, HHS struck questions about LGBTQ demographic data from two data collection tools: the Annual Program Performance Report for Centers for Independent Living, an evaluation of programs serving people with disabilities, and the National Survey of Older Americans Act Participants, an annual, national survey of individuals served by programs funded by the Older Americans Act.31 These changes made it more difficult to assess the specific needs of LGBTQ people with disabilities and older LGBTQ adults.
29 Jim DeMint & Roger Severino, Commentary: Court should reject Obama's radical social experiment, Philadelphia Inquirer (Nov. 7, 2016), https://www.inquirer.com/philly/opinion/20161107_Commentary__Court_should_reject_Obama_s_radical_social_e xperiment html. 30 Id. 31 Sejal Singh, et al., The Trump Administration Is Rolling Back Data Collection on LGBT Older Adults, Ctr. for Am. Progress (Mar. 20, 2017), https://www.americanprogress.org/issues/lgbtqrights/news/2017/03/20/428623/trump-administration-rolling-back-data-collection-lgbt-older-adults/.
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161. On December 14, 2017, staff at the Centers for Disease Control and Protection—a component of HHS—were instructed not to use the word “transgender” in official agency documents.32
162. On January 23, 2019, OCR granted an exemption to adoption and foster care agencies in South Carolina, allowing religiously-affiliated services to discriminate against LGBTQ caregivers.33
163. On May 21, 2019, HHS promulgated a regulation, Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 84 Fed. Reg. 23,170 (May 21, 2019), that would allow medical providers to cite their personal beliefs in refusing to provide a broad spectrum of services—including lifesaving care for LGBTQ patients.
164. On November 1, 2019, HHS announced it would not enforce, and planned to repeal, regulations prohibiting discrimination based on gender identity, sexual orientation, and religion in all HHS grant programs. These include programs to address the HIV, opioid, and youth homelessness epidemics, as well as hundreds of billions of dollars in other health and human service programs.34
165. On May 12, 2020, HHS published a final rule eliminating collection of sexual orientation data of foster youth, foster and adoptive parents, and child guardians and rejecting proposals to collect gender identity data.35
32 Lena H. Sun & Juliet Eilperin, CDC Gets List of Forbidden Words: Fetus, Transgender, Diversity, Wash. Post (Dec. 15, 2017), https://www.washingtonpost.com/national/health-science/cdc-gets-list-of-forbidden-words-fetustransgender-diversity/2017/12/15/f503837a-e1cf-11e7-89e8-edec16379010_story html. 33 Letter from Steven Wagner to Gov. McMaster (Jan.23, 2019), https://governor.sc.gov/sites/default/files/Documents/newsroom/HHS%20Response%20Letter%20to%20McMaster. pdf. 34 HHS Issues Proposed Rule to Align Grants Regulation with New Legislation, Nondiscrimination Laws, and Supreme Court Decisions, HHS (Nov. 1, 2019), https://www hhs.gov/about/news/2019/11/01/hhs-issues-proposedrule-to-align-grants-regulation html 35 Adoption and Foster Care Analysis and Reporting System, 85 Fed. Reg. 28,410 (May12, 2020).
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166. And, shortly after HHS published the 2020 Rule, on June 24, 2020, the President issued an Executive Order directing HHS to issue guidance on whether to include faith-based organizations in foster care and adoption systems, saying that “[t]his guidance shall also make clear that faith-based organizations are eligible for partnerships under title IV-E of the Act (42 U.S.C. 670 et seq.) [sic], on an equal basis, consistent with the First Amendment to the Constitution.”36 LGBTQ advocacy groups warned that this action is meant to protect faith-based agencies that turn away qualified prospective foster and adoptive parents because of their gender identity or sexual orientation.37
D. The 2020 Rule is rife with Defendants’ animus toward transgender people. 167. The preamble of the 2020 Rule echoes, sometimes verbatim, the rhetoric that Defendant Severino used to criticize the 2016 Rule and other Obama-era policies protecting the rights of transgender people before he joined HHS. The Rule repeatedly refers to “biological” sex distinctions, in an effort to deny the existence of transgender people, echoing Severino’s use of the phrase “biological . . . reality” from his Heritage Foundation tenure. See 85 Fed. Reg. 37,180. 168. The 2020 Rule does not just remove the provisions mandating nondiscriminatory treatment of transgender patients and enrollees; it actually endorses discrimination and mistreatment. See 85 Fed. Reg. 37,185. Defendants state, falsely, that “pronouns are not stereotypes,” and advocate that it is entirely proper for medical providers to deliberately misgender their patients. Id. at 37,191. Defendants, improperly referring to transgender women
36 See Executive Order on Strengthening the Child Welfare System for America’s Children, White House (June 24, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-strengthening-child-welfare-systemamericas-children/. 37 Currey Cook, Trump Signs Anti-LGBTQ Child Welfare Executive Order, Lambda Legal (June 30, 2020), https://www.lambdalegal.org/blog/20200630_trump-admin-child-welfare-executive-order.
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as “males,” falsely contend that a “covered entity such as a healthcare provider is not impermissibly stereotyping biological males (notwithstanding their internal sense of gender) on the basis of sex if it uses pronouns such as ‘him’; limits access to lactation rooms and gynecological practices to female users and patients; or lists a male’s sex as ‘male’ on medical forms.” Id. at 37,185. This interpretation is contrary to Section 1557’s express statutory protections.
169. The Rule itself misgenders a transgender man mentioned in the preamble, intentionally and incorrectly referring to him as “her.” Id. at 37,189. The Rule also misgenders the late Aimee Stephens, a transgender woman and plaintiff in the Harris Funeral Homes case affirmed by the Supreme Court in Bostock, intentionally demeaning Ms. Stephens by falsely asserting that she “‘quite obviously’ is not ‘a woman’ because ‘Stephens’s sex’ is male.” Id. at 37,180.
170. Given the animus-ridden language in the 2020 Rule, as well as the context in which it was written, the 2020 Rule not only gives health care providers and insurers license to discriminate against LGBTQ people, it actively invites them to do so. In so doing, the Rule directly undercuts the central statutory purpose of Section 1557 to ensure that health care is available in a nondiscriminatory manner to all individuals in the United States.
171. As evidenced by Defendants’ words and actions, their hostility toward transgender people and the LGBTQ community as a whole—not any legitimate interpretation of Section 1557—infected the rulemaking process and drove the outcome here. The rollback of protections in the Section 1557 regulations and unrelated CMS regulations was improperly motivated by a desire to single out LGBTQ people as a group for inferior health care protections.
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172. The end result is a fundamentally flawed Rule that has the purpose and effect of removing critical health care protections for LGBTQ people and explicitly licensing discrimination against them. The Final Rule’s endorsement of discriminatory treatment of transgender and gender nonconforming individuals is arbitrary, capricious, and contrary to Section 1557’s statutory prohibitions and established precedent. Moreover, because these discriminatory changes do not substantially advance any legitimate governmental interest, they also violate the equal protection guarantees of the Fifth Amendment. VI. THE 2020 RULE HARMS PLAINTIFFS
173. The 2020 Rule harms Plaintiffs’ sovereign, quasi-sovereign, economic, and proprietary interests, including by inflicting substantial and burdensome administrative and enforcement costs on Plaintiffs’ state agencies and by harming the public health, which will increase uncompensated care costs that will be borne by Plaintiffs.
174. The 2020 Rule will directly harm Plaintiffs in at least three ways. First, the Rule will impose direct administrative and regulatory costs on Plaintiffs and their state agencies to mitigate confusion generated by the Final Rule. For example, Plaintiffs must train staff, issue guidance, and engage in public education campaigns to mitigate the confusion engendered by the Rule. Second, by abdicating HHS’s responsibility for the enforcement of Section 1557 and by purporting to significantly limit the scope of Section 1557’s protections and the types of entities to which its protections apply, the Rule will cause Plaintiffs to incur increased costs from the investigation and enforcement of state anti-discrimination laws, particularly those that prohibit discrimination based on gender identity, sexual orientation, and pregnancy-related conditions, as well as all discrimination complaints against insurers the Rule newly and unlawfully excludes from the regulation’s reach. Third, the Rule will harm public health by reestablishing
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discriminatory barriers to care for particularly vulnerable segments of Plaintiffs’ populations, including transgender people, women and others seeking reproductive health care or with pregnancy-related conditions, LEP individuals, and others that will result in delayed or denied health care, requiring Plaintiffs and their residents to bear increased costs resulting from those harms.
A. The 2020 Rule will impose direct administrative costs on Plaintiffs. 175. The 2016 Rule established comprehensive anti-discrimination protections in HHS’s Section 1557 implementing regulations that have been coextensive with many state antidiscrimination protections, and created a federal enforcement scheme for discrimination in the health care context that operated in parallel to state enforcement schemes. The practical result of this system was that HHS and the states shared responsibility for the enforcement of laws prohibiting discrimination by health care providers, health insurers, and other health programs and activities. Once the Rule goes into effect, however, many of the Plaintiffs, including California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin will have statutory, regulatory, or subregulatory protections against discrimination that offer more robust protections than those provided under the Rule. Unlike the 2016 Rule, the 2020 Rule newly exempts many private employer-based plans, Medicare Part B plans, and the Federal Employee Health Benefits program from Section 1557’s scope, except with respect to plans such insurers offer on the ACA exchange or that receive federal funding, like Medicaid plans. In contrast, many Plaintiffs have antidiscrimination laws that: (1) apply to private insurance companies (including those offering employer-based plans); (2) make it unlawful to deny coverage or otherwise discriminate on the basis of gender identity, sexual orientation, and pregnancy status, in addition to discrimination based on other
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protected characteristics; (3) mandate language assistance services for LEP individuals;
(4) require notices in commonly spoken languages other than English; and/or (5) require
qualified interpreters for individuals with disabilities.38
38 See, e.g., Cal. Gov’t Code § 11135 (nondiscrimination); Cal. Code Regs. tit. 10, § 2538.3 (Language Assistance Program requirements); Colo. Code Regs. § 702-4: 4-2-17-6 (requiring carriers to note availability of language services in relevant notices); Conn. Gen. Stat. sec. 46a-64 (prohibiting discrimination in places of public accommodation on the bases of sex (including pregnancy), sexual orientation, and gender identity/expression); 18 Del. C. § 2304(22) (prohibiting discrimination in insurance based on sexual orientation and gender identity); D.C. Code § 31-2231.11(c) (prohibiting discrimination based on gender identity and expression in the provision of health insurance); Haw. Rev. Stat. §§ 378-2 (prohibiting discrimination in employment-based health plans, including on the bases of gender identity or expression and reproductive health decision), 431:10A-118.3, 432:1-607.3, and 432D-26.3 (prohibiting discrimination in insurance on the basis of actual or perceived gender identity), 489-3 (prohibiting discrimination in public accommodations, including on the basis of gender identity or expression); 775 Ill. Comp. Stat. 5/5-101(A)(6) (Illinois Human Rights Act prohibiting discrimination in health care and health insurance); 210 Ill. Comp. Stat. 87/15 (Language Assistance Services Act); 305 Ill. Comp. Stat. 5/5-30(j) (language access requirements for Managed Care Entities); Me. Rev. Stat. Ann. tit. 5 §§ 4553 (definition of sexual orientation includes gender identity), 4572-A (prohibiting discrimination based on pregnancy), 4592 (public accommodation discrimination includes sexual orientation as protected category); Md. Code Ann., Ins. § 15-1A-22 (prohibiting discrimination based on gender identity and sexual orientation in the provision of health insurance); Md. Code Regs. 10.67.05.01 (language access requirements for Managed Care Organizations); Mass. Gen. Laws ch. 175, § 24A (prohibiting state-regulated insurers from issuing health plans that include exclusions or coverage limitations based on sex, including excluding or limiting coverage based on an insured’s transgender status); Mass. Gen. Laws ch. 151B, § 4 (prohibiting discrimination on the basis of sex, sexual orientation, or gender identity in the design and administration of fringe benefits, including health insurance and disability insurance); Mass. Gen. Laws ch. 176O, §§ 6(a)(10), (b)(9), 15(k) (language access requirements of health insurance carriers); Minn. Stat. § 363A.03, Subd. 44 (prohibiting discrimination on the basis of sexual orientation, the definition of which includes gender identity); Minn. Stat. §§ 363A.11, 363A.03, Subd. 42 (prohibiting sex discrimination, which includes pregnancy status); Nev. Rev. Stat. §§ 449.101(1) (prohibiting discrimination on basis of gender identity or expression in medical facilities), 449.104(1), 449.103(1) (requiring medical facilities to have policies and cultural competency training for staff covering gender identity and expression), 651.070 (prohibiting discrimination on basis of gender identity or expression in public accommodations); N.J. Stat. Ann. § 10:5-12(f) (prohibiting places of public accommodation from discriminating on the basis of sex, pregnancy or breastfeeding, gender identity or expression, and affectional or sexual orientation, among other protected characteristics); N.J. Stat. Ann. § 10:5-12(l) (prohibiting insurance providers from refusing to do business with, or refusing to provide services to, someone on the basis of their sexual orientation or gender identity or expression); N.J. Stat. Ann. § 17:48-6oo (requiring health insurers and similar entities to “provide coverage regardless of gender identity [or] expression”); N.M. Stat. Ann. § 28-1-7 (prohibiting discrimination based on sexual orientation, gender identity, and pregnancy status); N.Y. Exec. L. § 296 (unlawful discriminatory practice to discriminate based on sexual orientation, gender identity or expression); N.Y. Ins. Law § 2607 (prohibiting discrimination in insurance issuing because of sexual orientation, gender identity or expression, and transgender status); N.Y. Comp. Codes R. & Regs. tit. 11, § 52.72 (Insurance Regulation 62) (prohibiting issuers from discriminating on grounds of pregnancy status, sexual orientation, gender identity, transgender status, or sex stereotyping); N.Y. Comp. Codes R. & Regs. tit. 10, § 405.7(a)(7) (requirements for hospital language assistance services); N.Y. Exec. Law § 296(2)(c)-(d) (requires entities covered by the New York Human Rights Law to provide auxiliary aids and services to individuals with disabilities to avoid discrimination against such individuals and defining “auxiliary aids and services” to include “qualified interpreters” and “qualified readers.”); Or. Rev. Stat. § 746.021 (prohibiting discrimination based on gender identity in commercial insurance); Or. Rev. Stat. § 659.875(1) (same for Medicaid); Or. Admin. R. 839-005-0003 (same for public accommodations); R.I. Gen. Laws § 11-24-2 (prohibiting discrimination in places of public accommodation on the bases of sex (including pregnancy), sexual orientation, and gender identity/expression); Virginia Executive Directive Five: Access to Affordable,
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176. Because the 2020 Rule purports to narrow the scope of Section 1557’s antidiscrimination provisions and dramatically reduces the number of entities to which those protections apply, but does not (and cannot) alter state and local protections that are consistent with Section 1557’s statutory protections and have been coextensive with HHS’s existing Section 1557 regulations, the Rule creates confusion among health care providers, insurers, and the public regarding the applicable standards and protections.
177. Given the new divergence between HHS’s Section 1557 regulations and state laws prohibiting discrimination in the health care context, and in light of the Rule’s effective invitation to health providers and insurers to discriminate against vulnerable groups, Plaintiffs must ensure that regulated entities in their states understand their continuing obligations not to discriminate. The Rule has already required, or will require, Plaintiffs to incur costs by issuing new or revised guidance, regulations, or legislation clarifying distinct state standards and specifying that more stringent state law standards governing anti-discrimination in health care continue to apply. Given the confusion engendered by the Rule, Plaintiffs will incur costs issuing guidance and directives to clarify that Plaintiffs’ state agencies will—in contrast to HHS—investigate discrimination in health care by a broad range of entities, including private insurance companies providing employer-based plans, and will—also in contrast to HHS— investigate complaints alleging discrimination on the basis of gender identity, sexual orientation, and pregnancy status; and continue to require language access and interpretive services.
Quality Health Care Coverage (2019) (ordering Virginia Secretary of Health and Human Resources to develop publicly-available Language Access Plan); Vt. Stat. Ann. tit. 8, § 4724 (prohibiting certain entities, including Qualified Health Plan issuers, from discriminating on the basis of gender identity); Wis. Stat. §§ 628.34, 609.22(4m), 632.746(2)(b), Wis. Admin. Code Ins. § 9-31(2) (prohibiting discrimination based on pregnancystatus).
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178. Defendants’ issuance of the Rule and related publicity have caused many of Plaintiffs’ residents—particularly those who are transgender—to worry that they are losing protections and may lose insurance coverage for medically necessary health care, even though state and local protections continue to exist.
179. The Rule is already causing confusion and distress. For example, since the Rule was issued on June 12, 2020, Trans Lifeline, a nationwide peer support and crisis hotline nonprofit organization serving transgender people, has seen a marked increase in calls to the hotline—up from 155 on average in a typical day to 534 calls per day between June 12 and June 19, 2020, an increase of more than threefold. Callers brought up the Rule in roughly 10 percent of recent hotline calls.
180. Accordingly, the Rule will also require Plaintiffs to undertake efforts and incur costs to address the confusion caused by the Rule and to educate the public about their rights under state and local law.
181. With respect to LEP individuals and elimination of the 2016 Rule’s notice and tagline requirements, HHS admits that “an unknown number of persons are likely not aware of their right to file complaints with [OCR] and some unknown subset of this population may suffer remediable grievances, but will not complain to OCR absent notices informing them of the process.” 84 Fed. Reg. 27,883; see also 85 Fed. Reg. 37,234 (“The Department continues, however, to not be aware of a way to quantify those potential effects.”). Accordingly, the Rule will require Plaintiffs to invest resources to inform LEP individuals of their rights to obtain language assistance services and to file complaints when they are denied those services or otherwise face discrimination by health care providers or insurers.
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182. Plaintiffs have already been forced to incur costs to remedy the confusion engendered by the Rule and anticipate that additional resources and costs will be required. Indeed, the Rule concedes that there will be “additional costs” “regarding training and revision of policies and procedures.” 85 Fed. Reg. 37,163; see also id. at 37,236–238.
183. For example, on June 28, 2020, New York’s Department of Financial Services (“NYDFS”) announced several actions taken by the agency to protect LGBTQ New Yorkers against discrimination in health insurance, notwithstanding HHS’s rollback of federal protections under Section 1557.39 These actions included amending the State’s insurance regulations to prohibit discrimination based on an insured’s or prospective insured’s actual or perceived sexual orientation, gender identity or expression, or transgender status. The amendment, which takes effect July 28, 2020, also prohibits policy exclusions for treatments related to gender transition, gender dysphoria, or gender incongruence. Also as a result of the Rule, NYDFS also issued a Circular Letter on June 28, 2020, to remind regulated entities of New York’s non-discrimination protections based on sexual orientation, gender identity or expression, and transgender status and the requirements pertaining to preventive care and screenings.40 Following publication of the Rule, NYDFS also updated its guide for transgender New Yorkers regarding their health care rights to assist transgender individuals in understanding their health insurance coverage for gender-affirming care and when New York’s greater protections apply.41
39 Superintendent Linda A. Lacewell Announces Action to Protect LGBTQ New Yorkers Against Bias in Healthcare, Dep’t of Fin. Servs. (June 28, 2020), https://www.dfs.ny.gov/reports_and_publications/press_releases/pr202006282. 40 Insurance Circular Letter No. 13, Dep’t of Fin. Servs. (June 28, 2020), https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2020_13. 41 Health Coverage Information for Transgender New Yorkers: What You Need to Know to Get Care, https://www.dfs.ny.gov/consumers/health_insurance/transgender_healthcare.
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184. In addition, the New York State Division of Human Rights hosted a Know Your Rights webinar on June 30, 2020 regarding New York state law protections, noting that despite HHS’s rollback of the regulatory protections against discrimination in health settings, New York State’s laws and rules, which include protections based on sexual orientation, gender identity or expression, national origin, and pregnancy related conditions, among others, still apply.42
185. As a result of the Rule, California’s Department of Fair Employment and Housing (“CA DFEH”) has already invested staff time to develop education materials and programs to clarify that discrimination on the bases of gender identity and sexual orientation in health care and insurance are unlawful under California law. CA DFEH may also engage in a multi-lingual campaign to educate LEP Californians about their rights due to the Rule’s removal of notice and tagline requirements and other language assistance requirements.
186. Similarly, the California Department of Insurance (“CA CDI”) has already incurred costs to issue a notice to all California health insurers to clarify that the Rule does not preempt state law and that health insurers must continue to comply with California’s antidiscrimination laws. The Rule will also require CA CDI to increase staffing and resources to address confusion surrounding the Rule and its relation to more stringent state law protections. CA CDI expects confusion triggered by the Rule will lead to additional calls to the Department. The Rule will require hiring one or more compliance officers to field those inquiries.
187. Several Massachusetts agencies have already had to, or will need to, promulgate advisories or guidance as a result of the Rule. For example, MassHealth—the program that administers the Commonwealth’s Medicaid program and Children’s Health Insurance Program—prepared and sent an advisory to all of its managed care plans and other stakeholders
42 https://speakerdeck.com/nyshumanrights/know-your-rights-lgbtq-plus-rights-under-new-york-state-law.
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to reiterate that state anti-discrimination laws (as well as managed care contracts) continue to prohibit discrimination on the basis of sexual orientation and transgender status, and require meaningful language access for MassHealth members.
188. In addition, Massachusetts’ Division of Insurance (“DOI”) is preparing guidance for insurance carriers in the Commonwealth to make clear that Massachusetts state antidiscrimination laws, which prohibit discrimination on the basis of sex, sexual orientation, gender identity, and national origin, continue to apply to insurers within DOI’s jurisdiction. DOI is also working to ensure that its staff understands the continued applicably of state antidiscrimination protections and considering developing additional educational material.
189. In anticipation of the Rule, Colorado’s Division of Insurance (“CO DOI”) promulgated DOI Regulation 4-2-62, which among other things, prohibits insurance carriers from discriminating on the basis of sexual orientation or gender identity, and also prohibits insurers from denying, canceling, limiting, or refusing to issue or renew a policy because of a person’s sexual orientation or gender identity. In light of the confusion caused by the Rule, CODOI has needed to undertake substantial and costly actions to remediate that confusion: it updated its website to address LGBTQ resources (including distinguishing between state and federal rights and protections); will conduct additional training of staff to answer questions, navigate appeals, and triage support needs with LGBTQ community members who contact the Division; and may issue additional guidance to insurers about their obligations under state law, as well as educational materials for consumers to reduce confusion around the Rule.
190. The Colorado Department of Health Care Policy and Financing (“COHCPF”) has also begun to undertake substantial and costly actions out of serious concern that the Rule will confuse or embolden providers who do not understand or who disagree with LGBTQ and LEP
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protections. COHCPF has issued a clarifying bulletin regarding Colorado law to hospital leaders and the state’s hospital association and will provide similar clarifications to other health providers in Colorado about the state’s protections through oral and written communications. Additionally, COHCPF has already provided an internal staff-wide training about the Rule and Colorado’s anti-discrimination protections, and participated in a town hall organized by the state’s largest LGBTQ advocacy group to provide clarity on the state’s protections.
191. In anticipation of the Rule, Connecticut’s Commission on Human Rights and Opportunities (CHRO) issued a declaratory ruling that, inter alia, prohibits insurers from selling insurance plans that discriminate on the basis of sexual orientation or gender identity.43 The week after the Rule was promulgated, Connecticut’s Insurance Commissioner released new guidance, in an attempt to respond to the significant confusion and concern caused by the rule, reminding regulated entities and community members alike that Connecticut law prohibits insurers and providers from discriminating on the basis of sexual orientation, or gender identity or expression.44
192. Because of the 2020 Rule, the District of Columbia Health Benefit Exchange (“HBX”) will need to provide updated guidance to assister grantees, who provide application and enrollment assistance to District residents seeking coverage through DC Health Link, the online health insurance marketplace operated by DC Health Benefit Exchange Authority. HBX will also need to update trainings and guidance to assisters based on the Rule to help them address questions related to the new Rule. HBX will also provide training to internal staff and customer
43 CHRO Declaratory Ruling on Petition Regarding Health Insurers’ Categorization of Certain Gender-Confirming Procedures as Cosmetic (Apr. 17, 2020). 44 Press Release, Insurance Commissioner: Connecticut LGBTQ health care consumers remain protected from discrimination, State of Ct. Ins. Dep’t (June 18, 2020), https://portal.ct.gov/CID/News-Releases/PressReleases/Press-Releases-20200618.
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service representatives that serve their call center, and may need to update customer service scripts.
193. Because of the Rule, the State of Hawaii’s Department of Human Services MedQUEST Division will likely need to expend funds to provide guidance, training, education, and revision of documents for health plans, providers, and recipients.
194. Due to the Rule, state agencies in Illinois have been required to issue guidance clarifying the scope of state and federal law and devote substantial resources to addressing confusion created by the Rule. For example, the Illinois Department of Human Rights (“IL DHR”), Department of Insurance (“IL DOI”), and Department of Healthcare and Family Services (“IL DHFS”) issued a joint agency non-discrimination in health care services communication “to clarify the 2020 Final Rule’s impact on residents of Illinois, to identify the protections from discrimination that exist in State law, and to remind the healthcare community of their ongoing obligations to deliver healthcare services in a non-discriminatory manner.”45
195. Additionally, IL DOI issued a company bulletin reminding health insurance issuers of Illinois laws that protect against discrimination based on sexual orientation or gender identity.46 To remediate the harmful effects of Defendants’ decision to narrow the scope of Section 1557 through the Rule, IL DOI proposed its own rulemaking to expand the existing nondiscrimination protections for gender identity at Ill. Adm. Code tit. 50, § 2603.35, so that the protections apply to policy and claims practices relating to either group or individual health
45 Guidance Relating to Nondiscrimination in Healthcare Services in Illinois (June 26, 2020), https://www2.illinois.gov/dhr/Documents/Joint%20Nondiscrimination%20Guidance.pdf. 46 Company Bulletin 2020-16 Health Insurance Coverage for Transgender, Nonbinary, and Gender Nonconforming Individuals, and for Individuals of All Sexual Orientations (June 15, 2020), https://insurance.illinois.gov/cb/2020/CB2020-16.pdf.
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insurance coverage, other than grandfathered health plans or excepted benefit policies. See 43 Ill. Reg. 14,987 (Dec. 27, 2019).
196. And IL DHFS issued a provider notice “to clarify that despite the federal Final Rule, medical assistance providers in Illinois are required to provide supplies and services without discriminating on the basis of sexual orientation or gender-related identity pursuant to the Illinois Human Rights Act, 775 ILCS 5, and 89 Ill. Adm. Code 140.12.”47
197. IL DHR is developing a community outreach plan and will hold training for staff in light of the Rule.
198. To remediate the harmful effects of Defendants’ decision to narrow the scope of Section 1557 through the Rule, the Illinois Department of Insurance proposed its own rulemaking to expand the existing nondiscrimination protections for gender identity at Ill. Adm. Code tit. 50, § 2603.35, so that the protections apply to policy and claims practices relating to either group or individual health insurance coverage, other than grandfathered health plans or excepted benefit policies. See 43 Ill. Reg. 14,987 (Dec. 27, 2019).
199. In light of the then-impending Rule, Maryland enacted new health antidiscrimination legislation to ensure that individuals would remain protected under state law regardless of HHS’s efforts to roll back express protections in the Section 1557 regulations. H.B. 1120/S.B. 738, 2020 Leg., 441st Sess. (Md. 2020) to be codified at Md. Code Ann., HealthGen. § 2-1001 et seq.; Md. Code Ann., Ins. § 15-1A-22 (Acts 2020, c. 620, § 1, eff. May 8, 2020; Acts 2020, c. 621, § 1, eff. May 8, 2020). Since HHS’s publication of the Rule, Maryland’s Health Benefit Exchange has convened a workgroup to assess the Rule’s impact
47 Provider Notice Re: Protections Against Discrimination Based on Sexual Orientation, including Gender-Related Identity Under the Illinois Human Rights Act (June 29, 2020), https://www.illinois.gov/hfs/MedicalProviders/notices/Pages/prn200629a.aspx.
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including updated guidance that will need to be issued, regulations that may need to be issued, training needs, and consumer outreach and education needs. Similarly, Maryland’s Commission on Civil Rights (“MD CCR”) is currently assessing the Rule’s impact, including the impact on the Commission’s enforcement resources.
200. Because of the Rule, the Minnesota Department of Human Rights will need to conduct outreach and issue publications to ensure that the public understands they remain protected by state law. And the Equal Opportunity and Access Division of the Minnesota Department of Human Services anticipates costs relating to revising guidance materials, increased calls from the public, and additional training and education in light of the Rule.
201. The New Jersey Department of Health (“NJDOH”) will likely need to update guidance to explain inconsistencies between federal- and state-level non-discrimination protections, and the New Jersey Division of Consumer Affairs will likely need to provide training for staff, consumers, and the regulated community. Similarly, in lieu of federal notices, the NJDOH Office of Minority and Multicultural Health will need to work proactively with the NJDOH Health Systems branch, hospital associations, and primary care associations to ensure patients with LEP have options and the same standard access to health care. NJDOH will also need to remind grantees and licensees about the necessity of language access and nondiscrimination in the absence of a federal mandate.
202. Due to the Rule and concomitant concerns from consumers, the Oregon Health Authority (“OHA”) and Oregon Department of Consumer and Business Services have sent guidance reassuring Oregon residents that discrimination against Medicaid and commercial health plan members based on gender identity remains prohibited under state law. OHA will need to update current public-facing materials regarding anti-discrimination protections and send
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out guidance related to language access to account for the Rule’s changes. The Rule also means that OHA will need to consistently and continuously reaffirm that affected individuals are protected by Oregon law and that there are remedies for discrimination. The Rule creates fear and uncertainty in an already difficult and challenging climate and frustrates OHA’s mission for health equity by creating additional barriers to care and associated fear.
203. Rhode Island’s Commission for Human Rights plans to conduct outreach to employers to remind them that the protected characteristics of pregnancy status, sexual orientation, and gender identity/expression are still covered under state law despite the Rule and other Rhode Island agencies, including the state-based health insurance exchange, are considering training for staff in light of the Rule, which would incur additional costs. Rhode Island’s Department of Health (RIDOH) plans to issue guidance to address confusion for health care professionals and health care facilities to highlight the important differences between what the Rule requires and what state law requires.
204. Due to the Rule, the Vermont Department of Financial Regulation released a statement to remind regulated entities and Vermont’s transgender community that Vermont law prohibits health insurers from unfairly discriminating based on gender identity.48
205. The Wisconsin Department of Health Services also plans to (1) issue guidance in light of the Rule to address confusion likely to be experienced by health plans, providers, and members; (2) train and educate staff, benefit program members, and community partners on the Rule to mitigate any confusion; and (3) update public postings, fact sheets, and “know your rights” materials. On June 29, 2020, the Wisconsin Office of the Commissioner of Insurance
48 On LGBTQ+ Rights: Vermont and U.S. Supreme Court Lead (June 17, 2020), https://dfr.vermont.gov/other/lgbtqrights-vermont-and-us-supreme-court-lead.
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(“WI OCI”) issued a bulletin clarifying legal requirements regarding nondiscrimination in health insurance coverage for individuals who are transgender or gender dysphoric.49 Additionally, WI OCI is in the process of updating consumer information publications and compiling a fact sheet on individual rights in light of the Rule.
206. Other Plaintiffs also intend to issue guidance to address confusion within the regulated community, revise or update public-facing materials to clarify non-discrimination protections, provide training for agency staff, and/or engage in community outreach as a result of and to counteract the 2020 Rule.
B. Plaintiffs will incur increased enforcement costs and burdens as a result of the 2020 Rule.
207. In addition, the Rule will injure Plaintiffs by causing them to incur additional costs through investigation and enforcement of state civil rights protections banning discrimination in health care settings and health insurance.
208. Most Plaintiffs have one or more state agencies with jurisdiction to investigate discrimination in the health care context and have established complaint or grievance procedures to address discrimination in that context, including, for example, health departments, agencies dedicated to human rights, and state insurance commissioners or departments. Plaintiffs’ agencies receive complaints from the public, investigate the facts giving rise to those complaints through various investigative tools, and attempt to resolve complaints. Many of Plaintiffs’ state agencies have mechanisms for issuing findings or determinations of violations, enforcing determinations or orders, and collecting any applicable damages or penalties.
49 Nondiscrimination Regarding Coverage for Insureds Who Are Transgender or Gender Dysphoric, Wi. Off. of Comm’r of Ins. (June 29, 2020), https://oci.wi.gov/Pages/Regulation/Bulletin20200629Nondiscrimination.aspx.
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209. The Rule will burden Plaintiffs with increased enforcement costs as the Rule diverts discrimination complaints from federal to state enforcement agencies. As the Rule limits the scope and breadth of OCR’s federal enforcement against discrimination, individuals who previously would have sought assistance from OCR will be forced to seek assistance from state agencies or bring private lawsuits.
210. Complainants alleging discrimination (on any of the grounds covered by Section 1557) against entities that were covered by OCR’s prior interpretation of Section 1557, but are no longer covered under the Rule, will no longer be able to file complaints with OCR; instead, they will likely turn to state agencies for assistance. For example, after the 2020 Rule becomes effective, an individual who is subject to race discrimination by a health insurance company offering an employer-sponsored plan will have no recourse with OCR. Whereas HHS should bear the primary responsibility of enforcing discrimination prohibitions in all forms against health care entities, the Department’s refusal to do so will expose state and local enforcement agencies to continuing enforcement costs from individuals seeking relief from discrimination.
211. Likewise, although the Supreme Court’s Bostock decision requires OCR to investigate complaints relating to discrimination based on transgender status and sexual orientation, by flouting Bostock and other case law, the Rule instead will demand that such complaints to be filed with state agencies instead of OCR. And as noted above, HHS acknowledges that LEP individuals may not be aware of their rights under federal law with the repeal of the notice and taglines requirements; therefore, LEP individuals will likely turn to state agencies instead.
212. By wrongfully suggesting that sexual orientation and gender identity are outside Section 1557’s scope, the Rule will invite discrimination and confusion within the regulated
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community. In so doing, the Rule will directly increase the prevalence of discrimination in Plaintiffs’ jurisdictions. Plaintiffs and their enforcement agencies will bear the burden of this, as their enforcement resources will be required to enforce civil rights standards in their jurisdictions.
213. Moreover, by falsely suggesting that Section 1557’s protections do not encompass discrimination on the basis of sexual orientation and gender identity, or that insurers need not cover transition-related care or cover other health services for transgender people in a nondiscriminatory manner, the Rule threatens to induce covered entities to roll back or reduce certain protections they previously understood to be required by the law. With HHS’s abdication of its enforcement obligations through the Rule, the burden of holding these entities accountable for maintaining nondiscriminatory policies or practices, or making discriminatory coverage determinations on these bases, will now fall entirely to state and local enforcement agencies and the courts.
214. To handle the increase in complaints, state agencies will be forced to shift enforcement priorities in order to manage their already-limited resources or incur costs by hiring additional investigators, counsel, data analysts, and other staff to properly investigate discrimination claims and enforce state laws.
215. For example, CA DFEH does not have discretion to decline to process and investigate complaints within its jurisdiction, so any increase in complaints necessarily increases its workload. CA DFEH anticipates that processing and resolving complaints that historically could have been filed with OCR could result in at least $1,346 to $2,308 of staff time per complaint, and that even a conservative estimate supports an increase of 24 complaints per year
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being filed by transgender individuals for discrimination in health care and insurance due to the Rule.
216. In Massachusetts, several state agencies have enforcement authority over complaints of discrimination in the health care and insurance contexts. For example, the Massachusetts Commission Against Discrimination (“MCAD”) processes and investigates complaints of discrimination in public accommodations and employment, among other areas. In fiscal year 2019, MCAD received and processed 3,364 new complaints, a third of which involved allegations of discrimination on the basis of sex, sexual orientation, transgender status, or national origin. The Massachusetts DOI is the primary regulator of insurance carriers in Massachusetts and is responsible for investigating discrimination complaints against insurers, including those that allege discrimination on the basis of sex, sexual orientation, transgender status, and national origin. DOI estimates that it could cost between $100 and $150 to process and investigate each new complaint of discrimination within DOI’s jurisdiction. MassHealth has enforcement authority over any MassHealth provider who discriminates against any MassHealth member on the basis of sex, sexual orientation, transgender status, or national origin. MassHealth provides coverage to nearly 1.8 million Massachusetts residents. Each of these agencies has a significant workload and will need to devote staff time and resources to processing and investigating each new complaint of discrimination. It is reasonable to expect that these agencies will receive additional complaints of discrimination that could have been filed with OCR prior to the Rule.
217. Colorado estimates that it will cost $171.30 to process and investigate each complaint regarding discrimination against transgender people within CO DOI’s jurisdiction.
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218. In Illinois, IL DHR affirms that investigating additional complaints will divert resources from the other work of the agency. IL DHR investigates allegations of discrimination in the area of public accommodations attributable to 14 different protected categories. These categories include the ACA’s identified bases of race, color, national origin, sex, disability and age. Each charge requires the dedication of IL DHR resources, equipment, and staff (intake, investigative, supervisors, legal and office support). Without additional staff and resources, each new charge added to the agency’s inventory displaces the other charges that are pending investigation and processing. The cost to process a charge in Fiscal Year 2019 was $4,695.65.
219. In Maryland, the MD CCR has concurrent jurisdiction with the Maryland Department of Health and the Maryland Insurance Administration in the enforcement of healthrelated discrimination complaints, including discrimination based on gender identity and sexual orientation. Because HHS will no longer protect Marylanders from these forms of discrimination, MD CCR anticipates an increase in complaints, which will require the it to divert already-limited resources to review and investigate the complaints.
220. Because Michigan law requires that the Michigan Department of Civil Rights (“MDCR”) investigate all complaints of discrimination, increased complaints related to discrimination in health care caused by the Rule may burden MDCR’s resources and slow down the investigation and processing for all cases.
221. The Minnesota Department of Human Rights (“MN DHR”) affirms that investigating additional charges of discrimination will divert resources from the other work of the agency. Each charge requires the dedication of Department resources, equipment, and staff (including investigators, attorneys, and administrative personnel). MN DHR estimates the cost
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to process and investigate a typical charge of discrimination in state fiscal year 2020 was approximately $2,200 to $3,000.
C. The 2020 Rule will harm public health and impose additional costs on Plaintiffs’ health care systems.
222. Plaintiffs have protectable interests in the health and well-being of adults and children who live in their states. The Rule harms these interests. In addition, Plaintiffs’ health care systems will be forced to bear increased costs attendant to these harms, as the Rule impairs public health and increases burdens to Plaintiffs’ already-strained health care systems.
223. The Rule purports to remove and reduce federal regulatory protections for LGBTQ individuals, women and others seeking reproductive health care or with pregnancyrelated conditions, LEP individuals, and other protected groups (due to the narrowed scope of coverage of insurance plans), and it does so during the worst public health crisis in a century. The Rule will create confusion among Plaintiffs’ residents about their rights and will cause some individuals to delay or avoid seeking care.
224. The public health effects of eliminating anti-discrimination protections are clear, as HHS itself has previously determined that discrimination in the health care context leads to “poor and inadequate health care” and “exacerbate[s] existing health disparities in underserved communities.” 81 Fed. Reg. 31,444. HHS also long recognized that individuals who have experienced discrimination in the health care context often postpone or do not seek needed health care, resulting in adverse health outcomes. Id. By increasing the likelihood that LGBTQ individuals, LEP individuals, and others will hesitate to seek care because they fear discrimination, the Rule puts everyone at increased risk. Delaying care, in turn, results in avoidable human suffering and a “marketplace comprised of higher medical costs due to delayed treatment, lost wages, lost productivity, and misuse of people’s talents and energy.” Id.
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225. Moreover, deterring individuals from accessing timely care is particularly catastrophic for public health in light of COVID-19. Such barriers to care result in delayed testing, contact tracing, and isolation, thereby impairing Plaintiffs’ ability to reduce the spread of disease in Plaintiffs’ jurisdictions.
1. The Rule harms LGBTQ individuals. 226. As discussed above, the Rule eliminates the 2016 Rule’s express protections against sex discrimination based on gender identity and sex stereotyping. The 2020 Rule advances a narrative that transgender people are not welcome in health care settings, which will generate fear, confusion, and uncertainty for these vulnerable people. Some transgender individuals will delay or avoid seeking care. By emboldening discrimination, the Rule increases the likelihood that transgender individuals will encounter discrimination in health care settings. This will have negative health consequences for LGBTQ people (and public health in general) and exacerbate health disparities that already exist. 227. The effect of discrimination on health outcomes for LGBTQ people, as well as access to health care services, is well documented.50 LGBTQ persons report experiencing barriers to receiving medical services, including disrespectful attitudes, discriminatory treatment, inflexible or prejudicial policies, and even outright refusals of essential care, leading to poorer
50 Lambda Legal, When Health Care Isn’t Caring: Lambda Legal’s Survey on Discrimination Against LGBT People and People Living with HIV, 5-7 (2010), https://www.lambdalegal.org/sites/default/files/publications/downloads/whcic-report_when-health-care-isntcaring.pdf; see also Jennifer Kates, et al., Kaiser Family Foundation, Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender (LGBT) Individuals in the U.S. (May 3, 2018), https://www kff.org/reportsection/health-and-access-to-care-and-coverage-lgbt-individuals-in-the-us-health-challenges/.
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health outcomes and often serious or even catastrophic consequences. Transgender people in
particular report disparate treatment and even overtly hostile treatment from providers.51
228. One report shows that roughly one in six LGBTQ people avoid seeking medical
care due to concerns about discrimination because they are LGBTQ.52
229. As a result of discrimination in health care, as well as systemic oppression and
devaluation associated with social stigma, LGBTQ individuals experience worse physical health
compared to their heterosexual and non-transgender counterparts,53 have higher rates of chronic
conditions,54 and are at higher risk for certain mental health and behavioral health conditions,
including depression, anxiety, and substance misuse.55 For similar reasons, LGBTQ youth, in
particular, report a greater incidence of mental health issues and suicidal behaviors, suffer
bullying and victimization to a greater extent than heterosexual youth, and have difficulty
addressing concerns related to their sexual identity with their medical providers.56
230. Past experiences of bias, humiliation, harsh treatment, and isolation, as well as
perceived bias by health care providers, can discourage LGBTQ individuals from seeking care,
which in turn results in poorer health outcomes due to delays in diagnosis, treatment, or
preventive measures.57
51 The Report of the 2015 U.S. Transgender Survey, Nat’l Ctr. for Transgender Equality, 97 (2016), http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf; see also Kates, supra n.50. 52 Discrimination in America, Robert Wood Johnson Foundation (Nov. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_polls/2017/rwjf441734. 53 Kates, supra n.50. 54 Id. 55 Id. at 8. 56 Hudaisa Hafeez, et al., Health Care Disparities Among Lesbian, Gay, Bisexual, and Transgender Youth: A Literature Review, Cureus (Apr. 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5478215/; see also Michelle M. Johns, et al., Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students—19 States and Large Urban School Districts, 2017, U.S. Department of Health and Human Services/Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report (Jan. 25, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/pdfs/mm6803a3-H.pdf. 57 Lambda Legal, supra n.50, at 12.
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231. By affirmatively announcing that OCR will not investigate sex discrimination on the basis of sexual orientation and gender identity, the Rule signals that such discrimination will be tolerated by the federal government. As a result, LGBTQ individuals may be confused about what anti-discrimination protections remain in place and delay care because they fear discrimination.
232. As a result of the Rule and related confusion and fear of discrimination, LGTBQ individuals who do seek care may avoid disclosing their sexual orientation or transgender status to their health care providers. This may result in adverse health consequences for LGBTQ people because health care providers may not screen for relevant infections or cancers or may fail to order medically indicated tests or screenings. It harms individual patients and the public health in general when medical problems remain undetected and untreated. These problems are compounded by the current pandemic. Delaying care can lead to chronic conditions, which put individuals at a higher risk for COVID-19.
2. The Rule harms women and others seeking reproductive health care and with pregnancy-related conditions.
233. By unlawfully incorporating Title IX’s blanket religious exemption and abortion exception, and repealing the 2016 Rule’s clarification that sex discrimination includes pregnancy-related conditions, the 2020 Rule will create confusion about the scope of protections against these forms of discrimination under federal law. In turn, the Rule may prevent or discourage women and other individuals seeking reproductive health care from accessing that care.
234. The Rule also serves to further stigmatize abortion and may embolden providers to deny abortion care (potentially including contraception).
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235. As the Department recognized in 2016, “a blanket religious exemption could result in a denial or delay in the provision of health care to individuals and in discouraging individuals from seeking necessary care, with serious, and in some cases, life threatening results.” 81 Fed. Reg. 31,380.
236. Discriminatory denials of service will result in an increase in unplanned pregnancies, which are associated with poor birth outcomes and maternal health complications, including preterm birth, low birth weight, stillbirth, and early neonatal death.58 Women facing an unplanned pregnancy are more likely than those with planned pregnancies to receive late or no prenatal care, to smoke and consume alcohol during pregnancy, to suffer from perinatal mood disorders, and to experience domestic violence during pregnancy.59
237. Individuals facing unplanned pregnancy are also more likely to experience economic hardship and insecurity.60 Economic security is associated with improved health outcomes, including lower risk of disease, better mental health, greater access to medical care, and longer life expectancy.
238. Births resulting from unplanned pregnancies are likely to be publicly funded through state Medicaid and the Children’s Health Insurance Program. In 2006, births resulting from unplanned pregnancies cost the states and the federal government nearly $11.1 billion in
58 Megan Kavanaugh, et al., Contraception and Beyond: The Health Benefits of Services Provided at Family Planning Centers, Guttmacher Institute (July 2013), http://www.guttmacher.org/report/contraception-and-beyondhealth-benefits-services-provided-family-planning-centers; Caitlin Gerdts, et al., Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth after an Unwanted Pregnancy, Women’s Health Issues (Jan.-Feb. 2016), https://www.sciencedirect.com/science/article/pii/S1049386715001589. 59 Clinical Preventive Services for Women: Closing the Gaps, Institute of Medicine, 103 (2011), https://www.nap.edu/read/13181/chapter/1. 60 Diana Greene Foster, et al., Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States, Am. Journal of Pub. Health (Feb. 7, 2018), https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2017.304247.
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costs.61 In California, 62 percent of unplanned births are publicly funded, primarily by Medi-
Cal, the state’s Medicaid program, and in Massachusetts, 59 percent of unplanned births are publicly funded.62
239. The children of individuals denied care also face negative development, health, caregiving, and socioeconomic consequences.63
240. Accordingly, by creating confusion and emboldening health care providers to
deny reproductive health care, the Rule harms women, families, and society in general.
3. The Rule harms individuals with limited English proficiency (LEP).
241. The Rule’s weakening of protections for LEP individuals and elimination of the
notice and taglines requirements will exacerbate difficulties faced by LEP individuals attempting
to access health care.
242. More than 67 million people in the U.S. speak a language other than English at
home and more than 25 million people are LEP, meaning they speak English less than “very well.”64
243. Language-related barriers severely limit an individual’s opportunity to access
health care services, assess options, express choices, follow medication instructions, ask
61 Adam Sonfield, et al., The Public Costs of Births Resulting from Unintended Pregnancies: National and StateLevel Estimates, Perspectives on Reproductive and Sexual Health (June 2011), https://www.guttmacher.org/journals/psrh/2011/05/public-costs-births-resulting-unintended-pregnancies-nationaland-state-level. 62 Id. at Table 1. 63 Diana Greene Foster, et al., Effects of Carrying an Unwanted Pregnancy to Term on Women’s Existing Children, The Journal of Pediatrics (Feb. 2019), https://www.jpeds.com/article/S0022-3476(18)31297-6/fulltext; Diana Greene Foster, et al., Comparison of Health, Development, Maternal Bonding, and Poverty Among Children Born After Denial of Abortion vs After Pregnancies Subsequent to an Abortion, JAMA Pediatrics (Nov. 2018), https://jamanetwork.com/journals/jamapediatrics/fullarticle/2698454. 64 U.S. Census Bureau, Characteristics of People by Language Spoken at Home, American Community Survey 1Year Estimates, tbls. S1601, S1603 (2018), https://data.census.gov/cedsci/table?q=language&hidePreview=false&tid=ACSST1Y2018.S1601.
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questions, and seek assistance.65 LEP patients receive a lower quality of care than Englishproficient patients in terms of incidence of medical errors and understanding of the treatment plans.66 Removing existing protections only continues these inequities in health care delivery.
244. By contrast, access to quality interpreter services ensures fewer errors in communication, significantly shorter hospital stays, reduces 30-day readmission rates, and improves overall patient satisfaction.
245. By removing and weakening language access requirements the Rule will diminish public knowledge of the means and methods for accessing health care and health insurance. Standardization and posting requirements under the 2016 Rule alerted both the public and providers of the critical importance of interpreter services. By eliminating notice requirements, the 2020 Rules shifts the burden back to LEP individuals seeking care to know about their rights to language assistance services and to demand those services. LEP individuals will not learn of their rights and the programs and services available to them, which will result in poorer health outcomes. LEP individuals may be subject to misinformation and will not be able to access health care as timely and adequately as English speakers can.
246. The COVID-19 pandemic makes language access services especially critical, as health care providers must quickly triage patients of all backgrounds according to their symptoms and public health officials attempt to distribute information and guidance documents
65 Nat’l Health Law Program & Access Project, Language Services Action Kit, 40 (Feb. 2004), https://www.commonwealthfund.org/sites/default/files/documents/___media_files_publications_fund_report_2002_ may_providing_language_interpretation_services_in_health_care_settings__examples_from_the_field_lep_actionkit _reprint_0204_pdf.pdf. 66 Alexander R. Green & Chijioke Nze, Language-Based Inequity in Health Care: Who is the “Poor Historian”?, American Medical Association Journal of Ethics, 263-271 (Mar. 2017), https://journalofethics.amaassn.org/sites/journalofethics.ama-assn.org/files/2018-05/medu1-1703.pdf.
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to diverse communities. Early reports indicate that LEP patients may face worse outcomes when seeking emergency care for COVID-19 symptoms.67
247. Additionally, as medical services are more frequently provided through telehealth due to the pandemic, access to qualified interpreters is crucial. Yet the 2020 Rule lowers the qualification standards for interpreters and eliminates real-time video interpretation services.
4. The Rule harms protected persons on newly non-covered insurance plans.
248. By narrowing the scope of covered entities, the Rule creates confusion and uncertainty for individuals who have or are considering private, employer-sponsored health insurance plans. In light of the Rule, individuals may reasonably not know whether their insurance company will continue to offer or renew coverage on a non-discriminatory basis, may be confused as to whether more-protective state laws—where they exist—apply, and may reasonably believe based on the announcement of the Rule that some of their medically necessary procedures will no longer be covered.
249. Fear of discrimination deters individuals from seeking medical care. For example, nearly 1 in 5 Latinos have avoided medical care due to concern of being discriminated against or treated poorly.68 And 22 percent of Black Americans have avoided medical care for fear of discrimination.69
67 See e.g., David Velasquez, et al., Equitable Access to Health Information for Non-English Speakers Amidst the Novel Coronavirus Pandemic, Health Affairs (Apr. 2, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200331.77927/full/; Claudia Boyd-Barrett, Community Groups Serve as Pandemic Information Lifeline to Non-English Speakers, California Health Report (Mar. 31, 2020), https://www.calhealthreport.org/2020/03/31/community-groups-serve-as-pandemic-information-lifeline-to-nonenglish-speakers/. 68 Discrimination in America: Experiences and Views of Latinos, Robert Wood Johnson Foundation (Oct. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_polls/2017/rwjf441402. 69 Discrimination in America: Experiences and Views of African Americans, Robert Wood Johnson Foundation (Oct. 2017), https://www rwjf.org/content/dam/farm/reports/reports/2017/rwjf441128.
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250. The Rule is particularly troubling in light of the health inequities exacerbated by the COVID-19 pandemic. Black and Latino of the United States have been three times as likely to become infected with COVID-19 as white residents, according to data covering 640,000 infections detected in nearly 1,000 U.S. counties.70 And Black and Latino people have been nearly twice as likely to die from the virus as white people.71
5. The Rule’s Public Health Harms Will Impose Additional Costs on Plaintiffs and their Health Care Systems.
251. As HHS has previously recognized, see supra ¶¶ 5, 74, 87, 224, 235, delaying care results in higher medical costs later. Some of those costs will be borne by Plaintiffs in the form of higher government-funded health care costs and increased costs of care for uninsured patients by public hospitals.
252. Plaintiffs administer and oversee multiple federal- and state-funded health care programs, including Medicaid, Children’s Health Insurance Program, and other sources partially funded by Plaintiffs. For example, California administers Medi-Cal, its version of Medicaid. Similarly, Massachusetts’ MassHealth program provides coverage to nearly 1.8 million Massachusetts residents, including critical coverage to particularly vulnerable segments of the populations, such as children and people with disabilities. And New York pays health care costs for eligible low-income and moderate-income residents, including children, through its Medicaid program and a number of other programs funded in whole or in part by the State. As individuals delay treatment due to fear of discrimination, health insurance programs funded partially by the States will face increased expenses.
70 Richard A. Oppel, Jr., et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y. Times (July 5, 2020), https://www nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdcdata html?action=click&module=Top%20Stories&pgtype=Homepage. 71 Id.
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253. Many states also run public hospitals and cover the cost of care when patients do
not have health insurance. Although most New Yorkers have health insurance, more than one million residents are uninsured.72 Many of New York’s uninsured are poor or low-income: more
than 77 percent (approximately 776,000 people) had incomes below 400 percent of the federal
poverty level. See id. New York’s communities of color are more likely to be without insurance coverage.73 And nearly one-quarter of all noncitizens residing in New York State—or more than
484,000 individuals—were uninsured in 2016. Id. Given these figures, higher costs due to
delayed treatment of those who fear discrimination will in turn increase uncompensated care
costs for public hospitals in New York.
254. In the 2016 Rule, HHS specifically found that expanded anti-discrimination
protections would lead to a decrease in uncompensated care payments. 81 Fed. Reg. 31,461
(recognizing that anti-discrimination protections under the 2016 Rule will contribute to a
decrease in payments by the federal government for uncompensated care costs). Accordingly,
Defendants’ elimination of the express anti-discrimination protections contained in HHS’s
Section 1557 regulations will inevitably increase the more than $19 billion dollars states already pay each year to reimburse providers for uncompensated care.74 In fact, state and local
governments fund approximately 37.6 percent of government funded uncompensated care costs.75
72 See NYS Uninsured Rate Continues to Decline, Greater N.Y. Hosp. Ass’n (Oct. 7, 2019), https://www.gnyha.org/news/nys-uninsured-rate-continues-to-decline/. 73 Success in the Empire State: Health Insurance Coverage Trends, N.Y. State Health Found. (Nov. 14, 2017), https://nyshealthfoundation.org/wp-content/uploads/2017/11/success-in-the-empire-state-health-insurance-trendsNY.pdf. 74 See Teresa A. Coughlin, et al., Uncompensated Care for the Uninsured in 2013: A Detailed Examination, Kaiser Family Found., at 4 (May 30, 2014), https://www kff.org/uninsured/report/uncompensated-care-for-the-uninsuredin-2013-a-detailed-examination/ (cited at 81 Fed. Reg. 31,461 n.380). 75 See Teresa A. Coughlin, et al., An Estimated $84.9 Billion In Uncompensated Care Was Provided In 2013; ACA Payment Cuts Could Challenge Providers, Health Affairs, 811 at Ex. 4 (May 2014), https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2013.1068.
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255. Some of Plaintiffs’ residents have insurance plans underwritten by companies in other states with fewer anti-discrimination protections. Accordingly, residents with insurance plans written out-of-state may be denied care that would be covered by a plan written in their home state. When such residents are denied coverage, they may have to turn to state-funded care.
256. Additionally, some of Plaintiffs’ residents may engage in interstate travel to jurisdictions that lack Plaintiffs’ robust state-level protections against discrimination in health care. When Plaintiffs’ residents travel to or study in states with fewer protections and suffer discrimination or are denied care, Plaintiffs’ jurisdictions may bear the enforcement costs and public health repercussions when residents return home.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF (Violation of APA; 5 U.S.C. § 706—Contrary to Law) 257. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 258. The APA requires courts to “hold unlawful and set aside” agency action that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 259. The 2020 Rule is not in accordance with the law because it unlawfully exempts entities subject to Section 1557; incorporates religious and abortion exemptions under Title IX into Section 1557—but not Title IX’s prohibition on sex discrimination on the basis of pregnancy status, gender identity, and sex stereotyping; and limits protections against national origin discrimination that require meaningful access to health care programs and activities.
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260. The 2020 Rule conflicts with the Supreme Court’s holding in Bostock v. Clayton County that the plain meaning of sex discrimination encompasses discrimination based on an individual’s sexual orientation or gender identity.
261. The Rule eliminates protections based on sexual orientation and gender identity in unrelated regulations promulgated under different statutes, which conflicts with controlling legal authority regarding the meaning of “sex.”
262. The Rule conflicts with Section 1557 by failing to make available the enforcement mechanisms of Title VI, Title IX, the Age Discrimination Act, and the Rehabilitation Act in the case of discrimination against a person on the basis of any protected characteristic under the underlying statutes.
263. The 2020 Rule also runs counter to Section 1554 of the ACA, which, inter alia, forbids the HHS Secretary from promulgating “any regulation” that creates “unreasonable barriers” or “timely access” to health care.
264. The Rule is therefore “not in accordance with law” as required by the APA. 5 U.S.C. § 706(2)(A).
265. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. SECOND CLAIM FOR RELIEF
(Violation of APA; 5 U.S.C. § 706—In Excess of Statutory Authority) 266. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 267. Under the Administrative Procedure Act, courts must “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C).
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268. Defendants may only exercise authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013).
269. The 2020 Rule exceeds statutory authority because it creates a broad religious exemption, which gives religiously-affiliated providers and insurers license to deny care and coverage for discriminatory reasons.
270. The 2020 Rule is therefore “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of the APA. 5 U.S.C. § 706(2)(C).
271. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. THIRD CLAIM FOR RELIEF
(Violation of APA; 5 U.S.C. § 706—Arbitrary, Capricious, and Abuse of Discretion) 272. Plaintiffs incorporate by reference the allegations set forth in each of the
preceding paragraphs of this Complaint. 273. The APA requires courts to “hold unlawful and set aside” agency action that is
“arbitrary,” “capricious,” or an “abuse of discretion.” 5 U.S.C. § 706(2)(A). 274. The 2020 Rule is arbitrary and capricious because HHS’s justification for its
decision runs counter to the evidence before the agency, disregards material facts and evidence, and fails to consider important aspects of the problem, including patient harms imposed on LGBTQ individuals, women and others seeking reproductive health care or with pregnancyrelated conditions, LEP individuals, rural patients, and other vulnerable populations.
275. The 2020 Rule is also arbitrary and capricious because it fails to adequately justify its departure from HHS’s prior policy on which there are substantial reliance interests.
276. The 2020 Rule is also arbitrary and capricious because it is based on a flawed cost-benefit analysis. The Rule does not adequately quantify or consider the harms that will result.
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277. The Rule is arbitrary and capricious because it is pretextual. For example, while HHS purports to base its Rule on the “plain meaning” of “on the basis of sex,” HHS finalized the Rule without change after the Supreme Court issued its decision directly to the contrary in Bostock.
278. The Rule is therefore “arbitrary, capricious, [or] an abuse of discretion” in violation of the APA. 5 U.S.C. § 706(2)(A).
279. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. FOURTH CLAIM FOR RELIEF Violation of Fifth Amendment
(Due Process—Equal Protection Based on Unconstitutional Animus) 280. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 281. 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 prohibits the federal government from discriminating against individuals on the basis of sex. U.S. Constitution Amend. V. 282. Defendants were motivated by discriminatory animus toward transgender people and other members of the LGBTQ community when they promulgated the Rule. 283. Defendants intend to target transgender individuals with the Rule as part of their broader efforts to stigmatize LGBTQ people. 284. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
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REQUEST FOR RELIEF WHEREFORE, the States respectfully requests that this Court: 1. Declare that the 2020 Rule is arbitrary, capricious, an abuse of discretion, or not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A); 2. Declare that the 2020 Rule is in excess of the Department’s statutory jurisdiction, authority, or limitations, or short of statutory right within the meaning of 5 U.S.C. § 706(2)(C); 3. Declare that the 2020 Rule violates the Equal Protection Clause of the Fifth Amendment to the United States Constitution; 4. Postpone the effective date of the 2020 Rule pursuant to 5 U.S.C. § 705; 5. Vacate and set aside the 2020 Rule; 6. Enjoin the Department and all its officers, employees, and agents, and anyone acting in concert with them, from implementing, applying, or taking any action whatsoever under the Rule; 7. Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, pursuant to 28 U.S.C. § 2412; and 8. Grant such other relief as the Court deems just and proper.
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Dated: July 20, 2020

Respectfully submitted,

LETITIA JAMES Attorney General of the State of New York

Matthew Colangelo Chief Counsel for Federal Initiatives

Elena Goldstein Deputy Chief, Civil Rights Bureau

By: /s/ Joseph J. Wardenski Joseph J. Wardenski, Senior Trial Counsel Fiona J. Kaye, Assistant Attorney General Travis England, Assistant Attorney General Marissa Lieberman-Klein, Special Assistant Attorney General** Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 (212) 416-8441 Joseph.Wardenski@ag.ny.gov

Attorneys for the State of New York

XAVIER BECERRA Attorney General of California

MAURA HEALEY Attorney General of Massachusetts

Renu R. George* Senior Assistant Attorney General
Kathleen Boergers* Supervising Deputy Attorney General
By: /s/ Neli Palma Neli N. Palma, Deputy Attorney General* Lily Weaver, Deputy Attorney General* Martine D’Agostino, Deputy Attorney General* Office of the California Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 (916) 210-7522 Neli.Palma@doj.ca.gov

By: /s/ Amanda Hainsworth Amanda Hainsworth, Assistant Attorney General* Kimberly A. Parr, Assistant Attorney General* Office of the Massachusetts Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 (617) 963-2618 amanda.hainsworth@state.ma.us
Attorneys for the Commonwealth of Massachusetts

Attorneys for the State of California

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PHILIP J. WEISER Attorney General of Colorado
By: /s/ Eric R. Olson Eric R. Olson, Solicitor General* Office of the Colorado Attorney General 1300 Broadway, 10th Floor Denver, CO 80203 (720) 508-6000 eric.olson@coag.gov
Attorneys for the State of Colorado

WILLIAM TONG Attorney General State of Connecticut
By: /s/ Joshua Perry Joshua Perry Special Counsel for Civil Rights Office of the Attorney General 165 Capitol Avenue Hartford, CT 06106 (860) 808-5372 Joshua.perry@ct.gov

Attorneys for the State of Connecticut

KARL A. RACINE Attorney General District of Columbia
By: /s/ Kathleen Konopka Kathleen Konopka Deputy Attorney General, Public Advocacy Division Office of the Attorney General for the District of Columbia 441 4th St., N.W. Suite 630S Washington, DC 20001 (202) 724-6610 Kathleen.Konopka@dc.gov

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 (302) 577-8600 Vanessa.Kassab@delaware.gov
Attorneys for the State of Delaware

Attorneys for the District of Columbia

CLARE E. CONNORS Attorney General of Hawaii

KWAME RAOUL Attorney General of the State of Illinois

By: /s/ Kalikoʻonalani D. Fernandes Kalikoʻonalani D. Fernandes, Deputy Solicitor General* Office of the Hawaii Attorney General 425 Queen Street Honolulu, HI 96813 (808) 586-1360 kaliko.d.fernandes@hawaii.gov
Attorney for the State of Hawaii

By: /s/ Joyce Otuwa Joyce C. Otuwa, Assistant Attorney General* Office of the Illinois Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 857-8386 JOtuwa@atg.state.il.us
Attorney for the State of Illinois

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AARON M. FREY Attorney General of Maine
By: /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
Attorneys for Plaintiff State of Maine
DANA NESSEL Attorney General of Michigan
By: /s/ Toni L. Harris Fadwa A. Hammoud* Solicitor General Toni L. Harris* Tracy Van den Bergh* Assistant Attorneys General Michigan Department of Attorney General P.O. Box 30758 Lansing, MI 48909 (517) 335-7603 HammoudF1@michigan.gov Harrist19@michigan.gov VandenBerghT@michigan.gov
Attorneys for Plaintiff State of Michigan

BRIAN E. FROSH Attorney General of Maryland
By: /s/ Kimberly S. Cammarata Kimberly S. Cammarata* Director, Health Education and Advocacy Unit 200 St. Paul Place Baltimore, MD 21202 (410) 576-7038 kcammarata@oag.state.md.us
Attorneys for the State of Maryland
KEITH ELLISON Attorney General of Minnesota
By: /s/ Megan J. McKenzie Megan J. McKenzie* Assistant Attorney General 445 Minnesota Street, Suite 900 St. Paul, Minnesota 55101-2128 (651) 757-1405 megan.mckenzie@ag.state.mn.us
Attorneys for Plaintiff State of Minnesota

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AARON D. FORD Attorney General State of Nevada
By: /s/ Heidi Parry Stern Heidi Parry Stern
Solicitor General Craig A. Newby
Deputy Solicitor General Office of the Nevada Attorney General 555 E. Washington Ave., Ste. 3900 Las Vegas, NV 89101 HStern@ag.nv.gov
Attorneys for the State of Nevada

GURBIR S. GREWAL Attorney General of New Jersey
Mayur P. Saxena, Assistant Attorney General Melissa Medoway, Section Chief, Deputy Attorney General*
By: /s/ Marie Soueid Marie Soueid, Deputy Attorney General John T. Passante, Deputy Attorney General* New Jersey Attorney General’s Office Richard J. Hughes Justice Complex 25 Market Street Trenton, NJ 08625 (609) 376-2564

Attorneys for Plaintiff State of New Jersey

HECTOR BALDERAS Attorney General of New Mexico

JOSHUA H. STEIN Attorney General of North Carolina

By: /s/ Tania Maestas Tania Maestas* Chief Deputy Attorney General New Mexico Attorney General PO Drawer 1508 Santa Fe, New Mexico 87504-1508 (505) 490-4060 tmaestas@nmag.gov

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

Attorneys for Plaintiff State of New Mexico,

Attorneys for the State of North Carolina

by and through Attorney General Hector Balderas

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ELLEN F. ROSENBLUM Attorney General of the State of Oregon
By: /s/ Brian A. de Haan Brian A. de Haan
Senior Assistant Attorney General Oregon Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-3806 brian.a.dehaan@doj.state.or.us
Attorneys for the State of Oregon
PETER F. NERONHA Attorney General of the State of Rhode Island
By: /s/ Michael W. Field Michael W. Field* Assistant Attorney General Rhode Island Office of Attorney General 150 South Main Street Providence, RI 02903 (401) 274-4400 x 2380 mfield@riag.ri.gov
Attorneys for State of Rhode Island

JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania
By: /s/ Amber Sizemore Amber Sizemore, Deputy Attorney General* Jacob Boyer, Deputy Attorney General* Pennsylvania Office of Attorney General Strawberry Square, 14th Floor Harrisburg, PA 17120 (717) 705-6938 asizemore@attorneygeneral.gov jboyer@attorneygeneral.gov
Attorneys for the Commonwealth of Pennsylvania
THOMAS J. DONOVAN, JR. Attorney General of Vermont
By: /s/ Benjamin Battles Benjamin Battles, Solicitor General Emily Adams, Assistant Attorney General Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-5500 benjamin.battles@vermont.gov
Attorneys for the State of Vermont

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MARK R. HERRING Attorney General of Virginia
By: /s/ Ryan S. Hardy Ryan S. Hardy, Assistant Attorney General* Office of the Attorney General of Virginia 202 North 9th Street Richmond, Virginia 23219 (804) 786-0969 rhardy@oag.state.va.us
Attorneys for the Commonwealth of Virginia

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

*Applications for pro hac vice admission forthcoming ** Application for admission to SDNY forthcoming

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