_________________ 

_________________ 

(Slip Opinion) Cite as: 592 U. S. ____ (2020) 1 

Per Curiam 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 20–366 

DONALD J. TRUMP, PRESIDENT OF THE 

UNITED STATES, ET AL., APPELLANTS 

v. NEW YORK, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF NEW YORK 

[December 18, 2020]

 PER CURIAM. 

Every ten years, the Nation undertakes an “Enumeration” of its population “in such Manner” as Congress “shall 

by Law direct.” U. S. Const., Art. I, §2, cl. 3. This census 

plays a critical role in apportioning Members of the House

of Representatives among the States, allocating federal 

funds to the States, providing information for intrastate redistricting, and supplying data for numerous initiatives

conducted by governmental entities, businesses, and academic researchers. Department of Commerce v. New York, 

588 U. S. ___, ___ (2019) (slip op., at 2). 

Congress has given both the Secretary of Commerce and

the President functions to perform in the enumeration and 

apportionment process. The Secretary must “take a decennial census of population . . . in such form and content as he 

may determine,” 13 U. S. C. §141(a), and then must report 

to the President “[t]he tabulation of total population by 

States” under the census “as required for the apportionment,” §141(b). The President in turn must transmit to 
 

 

2 TRUMP v. NEW YORK 

Per Curiam 

Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census. 46 Stat. 26, 2 U. S. C. §2a(a). In 

that statement, the President must apply a mathematical

formula called the “method of equal proportions” to the population counts in order to calculate the number of House 

seats for each State. Ibid.; see Department of Commerce v. 

Montana, 503 U. S. 442, 451–452 (1992). 

This past July, the President issued a memorandum to

the Secretary respecting the apportionment following the 

2020 census. The memorandum announced a policy of excluding “from the apportionment base aliens who are not in 

a lawful immigration status.” 85 Fed. Reg. 44680 (2020).

To facilitate implementation “to the maximum extent feasible and consistent with the discretion delegated to the executive branch,” the President ordered the Secretary, in

preparing his §141(b) report, “to provide information permitting the President, to the extent practicable, to exercise 

the President’s discretion to carry out the policy.” Ibid. The 

President directed the Secretary to include such information in addition to a tabulation of population according

to the criteria promulgated by the Census Bureau for counting each State’s residents. Ibid.; see 83 Fed. Reg. 5525 

(2018).

This case arises from one of several challenges to the 

memorandum brought by various States, local governments, organizations, and individuals. A three-judge District Court held that the plaintiffs, appellees here, had

standing to proceed in federal court because the memorandum was chilling aliens and their families from responding 

to the census, thereby degrading the quality of census data 

used to allocate federal funds and forcing some plaintiffs to

divert resources to combat the chilling effect. ___ 

F. Supp. 3d ___, ___–___, 2020 WL 5422959, *13–*15 

(SDNY, Sept. 10, 2020) (per curiam). According to the District Court, the memorandum violates §141(b) by ordering 
 

Cite as: 592 U. S. ____ (2020) 3 

Per Curiam 

the Secretary to produce two sets of numbers—a valid tabulation derived from the census, and an invalid tabulation 

excluding aliens based on administrative records outside 

the census. Id., at ___, 2020 WL 5422959, *27. The District 

Court also ruled that the exclusion of aliens on the basis of 

legal status would contravene the requirement in §2a(a) 

that the President state the “whole number of persons in 

each State” for purposes of apportionment. Id., at ___, 2020 

WL 5422959, *32. The District Court declared the memorandum unlawful and enjoined the Secretary from including the information needed to implement the memorandum

in his §141(b) report to the President. Id., at ___, 2020 WL 

5422959, *35. The Government appealed, and we postponed consideration of our jurisdiction. 592 U. S. ___ 

(2020).

A foundational principle of Article III is that “an actual 

controversy must exist not only at the time the complaint is

filed, but through all stages of the litigation.” Already, LLC 

v. Nike, Inc., 568 U. S. 85, 90–91 (2013) (internal quotation

marks omitted). As the plaintiffs concede, any chilling effect from the memorandum dissipated upon the conclusion

of the census response period. The plaintiffs now seek to 

substitute an alternative theory of a “legally cognizable injury” premised on the threatened impact of an unlawful apportionment on congressional representation and federal 

funding. Id., at 100. As the case comes to us, however, we 

conclude that it does not—at this time—present a dispute 

“appropriately resolved through the judicial process.” Susan B. Anthony List v. Driehaus, 573 U. S. 149, 157 (2014) 

(internal quotation marks omitted).

Two related doctrines of justiciability—each originating

in the case-or-controversy requirement of Article III— 

underlie this determination. See DaimlerChrysler Corp. v. 

Cuno, 547 U. S. 332, 352 (2006). First, a plaintiff must 

demonstrate standing, including “an injury that is concrete, 
 

4 TRUMP v. NEW YORK 

Per Curiam 

particularized, and imminent rather than conjectural or hypothetical.” Carney v. Adams, ante, at 6 (internal quotation 

marks omitted). Second, the case must be “ripe”—not dependent on “contingent future events that may not occur as 

anticipated, or indeed may not occur at all.” Texas v. United 

States, 523 U. S. 296, 300 (1998) (internal quotation marks

omitted).

At present, this case is riddled with contingencies and

speculation that impede judicial review. The President, to 

be sure, has made clear his desire to exclude aliens without 

lawful status from the apportionment base. But the President qualified his directive by providing that the Secretary 

should gather information “to the extent practicable” and 

that aliens should be excluded “to the extent feasible.” 85 

Fed. Reg. 44680. Any prediction how the Executive Branch

might eventually implement this general statement of policy is “no more than conjecture” at this time. Los Angeles v. 

Lyons, 461 U. S. 95, 108 (1983).

To begin with, the policy may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here. Pre-apportionment litigation always “presents a moving target” 

because the Secretary may make (and the President may

direct) changes to the census up until the President transmits his statement to the House. Franklin v. Massachusetts, 505 U. S. 788, 797–798 (1992). And as the Government recognizes, Tr. of Oral Arg. 39, any such changes must

comply with the constitutional requirement of an “actual 

Enumeration” of the persons in each State, as opposed to a 

conjectural estimate. See Utah v. Evans, 536 U. S. 452, 

475–476 (2002); see also 13 U. S. C. §195. Here the record 

is silent on which (and how many) aliens have administrative records that would allow the Secretary to avoid impermissible estimation, and whether the Census Bureau can 

even match the records in its possession to census data in a

timely manner. See Reply Brief 4–5. Uncertainty likewise 
 

Cite as: 592 U. S. ____ (2020) 5 

Per Curiam 

pervades which (and how many) aliens the President will 

exclude from the census if the Secretary manages to gather

and match suitable administrative records. We simply do 

not know whether and to what extent the President might 

direct the Secretary to “reform the census” to implement his 

general policy with respect to apportionment. Franklin, 

505 U. S., at 798. 

While the plaintiffs agree that the dispute will take a 

more concrete shape once the Secretary delivers his report

under §141(b), Tr. of Oral Arg. 64, 75, they insist that the 

record already establishes a “substantial risk” of reduced 

representation and federal resources, Clapper v. Amnesty 

Int’l USA, 568 U. S. 398, 414, n. 5 (2013). That conclusion, 

however, involves a significant degree of guesswork. Unlike other pre-apportionment challenges, the Secretary has

not altered census operations in a concrete manner that will 

predictably change the count. See, e.g., Department of Commerce v. New York, 588 U. S., at ___ (slip op., at 10); Department of Commerce v. United States House of Representatives, 525 U. S. 316, 331–332 (1999). The count here is 

complete; the present dispute involves the apportionment

process, which remains at a preliminary stage. The Government’s eventual action will reflect both legal and practical constraints, making any prediction about future injury

just that—a prediction. 

Everyone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status. Tr. of Oral 

Arg. 20, 63–64. Yet the only evidence speaking to the predicted change in apportionment unrealistically assumes 

that the President will exclude the entire undocumented 

population. App. 344, Decl. of Christopher Warshaw ¶11.

Nothing in the record addresses the consequences of a partial implementation of the memorandum, much less supports the dissent’s speculation that excluding aliens in ICE 

detention will impact interstate apportionment. Post, at 5– 
 

6 TRUMP v. NEW YORK 

Per Curiam 

6, 9 (opinion of BREYER, J.); see Reply Brief 6. 

The impact on funding is no more certain. According to

the Government, federal funds are tied to data derived from 

the census, but not necessarily to the apportionment counts

addressed by the memorandum. Brief for Appellants 19–

20. Under that view, changes to the Secretary’s §141(b) report or to the President’s §2a(a) statement will not inexorably have the direct effect on downstream access to funds or 

other resources predicted by the dissent. Post, at 6–7. How 

that question will be addressed by the Secretary and the

President is yet another fundamental uncertainty impeding

proper judicial consideration at this time.

The remedy crafted by the District Court underscores the

contingent nature of the plaintiffs’ injuries. Its injunction

prohibits the Secretary from informing the President in his 

§141(b) report of the number of aliens without lawful status. In addition to implicating the President’s authority under the Opinions Clause, U. S. Const., Art. II, §2, cl. 1, the 

injunction reveals that the source of any injury to the plaintiffs is the action that the Secretary or President might take 

in the future to exclude unspecified individuals from the apportionment base—not the policy itself “in the abstract,” 

Summers v. Earth Island Institute, 555 U. S. 488, 494 

(2009). Letting the Executive Branch’s decisionmaking process run its course not only brings “more manageable proportions” to the scope of the parties’ dispute, Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990), but 

also “ensures that we act as judges, and do not engage in

policymaking properly left to elected representatives,” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). And in the 

meantime the plaintiffs suffer no concrete harm from the 

challenged policy itself, which does not require them “to do

anything or to refrain from doing anything.” Ohio Forestry 

Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998).

At the end of the day, the standing and ripeness inquiries

both lead to the conclusion that judicial resolution of this 
Cite as: 592 U. S. ____ (2020) 7 

Per Curiam 

dispute is premature. Consistent with our determination 

that standing has not been shown and that the case is not 

ripe, we express no view on the merits of the constitutional 

and related statutory claims presented. We hold only that

they are not suitable for adjudication at this time. 

The judgment of the District Court is vacated, and the 

case is remanded with instructions to dismiss for lack of jurisdiction. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 592 U. S. ____ (2020) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 20–366 

DONALD J. TRUMP, PRESIDENT OF THE 

UNITED STATES, ET AL., APPELLANTS 

v. NEW YORK, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF NEW YORK 

[December 18, 2020]

 JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and 

JUSTICE KAGAN join, dissenting. 

The Constitution specifies that the number of Representatives afforded to each State is based on an apportionment 

of the total population, with each State receiving its proportional share. The Government has announced a policy to

exclude aliens without lawful status from the apportionment base for the decennial census. The Government does 

not deny that, if carried out, the policy will harm the plaintiffs. Nor does it deny that it will implement that policy 

imminently (to the extent it is able to do so). Under a 

straightforward application of our precedents, the plaintiffs 

have standing to sue. The question is ripe for resolution. 

And, in my view, the plaintiffs should also prevail on the 

merits. The plain meaning of the governing statutes, decades of historical practice, and uniform interpretations

from all three branches of Government demonstrate that 

aliens without lawful status cannot be excluded from the 

decennial census solely on account of that status. The Government’s effort to remove them from the apportionment 

base is unlawful, and I believe this Court should say so. 

The Court disagrees. It argues that it is now uncertain

just how fully the Secretary will implement the Presidential memorandum. In my view, that uncertainty does not 
 

 

 

2 TRUMP v. NEW YORK 

BREYER, J., dissenting 

warrant our waiting to decide the merits of the plaintiffs’ 

claim. It is true that challenges to apportionment have often come after the President has transmitted his tabulation 

to the House. See Brief for United States 16 (deeming as

preferable “this Court’s normal approach: to decide such 

cases post-apportionment” (citing Utah v. Evans, 536 U. S. 

452, 458–459 (2002), Wisconsin v. City of New York, 517 

U. S. 1, 10–11 (1996), and Franklin v. Massachusetts, 505 

U. S. 788, 790–791 (1992))). The Government asked us to 

take that approach here. See Tr. of Oral Arg. 7–8. But we 

have also reached and resolved controversies concerning 

the decennial census based on a substantial risk of an anticipated apportionment harm. See Department of Commerce v. United States House of Representatives, 525 U. S. 

316, 332 (1999) (holding that it is “not necessary for this 

Court to wait until the census has been conducted to consider” government conduct that may affect apportionment).

And that is what I believe the Court should do here. Waiting to adjudicate plaintiffs’ claims until after the President 

submits his tabulation to Congress, as the Court seems to 

prefer, ante, at 4, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that 

the [plaintiffs’] requested relief . . . .will redress the alleged 

injury,” United States House of Representatives, 525 U. S., 

at 332, I would find that we can reach plaintiffs’ challenge 

now, and affirm the lower court’s holding. 

I 

The Court reasons that “standing has not been shown” 

because it is too soon to tell if the Government will act “in a 

manner substantially likely to harm any of the plaintiffs 

here.” Ante, at 4, 7. As I have said, I believe to the contrary.

Plaintiffs have alleged a justiciable controversy, and that 

controversy is ripe for resolution. 
 

Cite as: 592 U. S. ____ (2020) 3 

BREYER, J., dissenting 

A 

Begin with the threatened injury. The plaintiffs allege 

two forms of future injury: a loss of representation in the 

apportionment count and decreased federal funding tied to 

the census totals. For an injury to satisfy Article III, it 

“must be concrete and particularized and actual or imminent, not conjectural or hypothetical.” Susan B. Anthony 

List v. Driehaus, 573 U. S. 149, 157 (2014) (quoting Lujan 

v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); internal 

quotation marks omitted). We have long said that when

plaintiffs “demonstrate a realistic danger of sustaining a direct injury as a result of [a policy’s] operation or enforcement,” they need “‘not have to await the consummation of 

threatened injury to obtain preventive relief. If the injury 

is certainly impending, that is enough.’” Babbitt v. Farm 

Workers, 442 U. S. 289, 298 (1979) (quoting Pennsylvania v. 

West Virginia, 262 U. S. 553, 593 (1923)). 

Here, inquiry into the threatened injury is unusually 

straightforward. The harm is clear on the face of the policy.

The title of the Presidential memorandum reads: “Excluding Illegal Aliens From the Apportionment Base Following 

the 2020 Census.” 85 Fed. Reg. 44679 (2020) (Presidential

memorandum). That memorandum announces “the policy

of the United States [shall be] to exclude from the apportionment base aliens who are not in a lawful immigration 

status . . . to the maximum extent feasible and consistent 

with the discretion delegated to the executive branch.” Id., 

at 44680. Notwithstanding the “contingencies and speculation” that “riddl[e]” this case, ante, at 4 (opinion of the

Court), the Government has not backed away from its 

stated aim to exclude aliens without lawful status from apportionment. See Brief for United States 14 (urging that

the Secretary “be allowed to implement the Memorandum, 

at which point suit can be brought”); see also Virginia v. 

American Booksellers Assn., Inc., 484 U. S. 383, 393 (1988) 

(finding standing where “plaintiffs have alleged an actual 
 

 

4 TRUMP v. NEW YORK 

BREYER, J., dissenting 

and well-founded fear that the law will be enforced” and the 

Government “has not suggested that the newly enacted 

[policy] will not be enforced”). The memorandum also announces the reason for this policy: to diminish the “political 

influence” and “congressional representation” of States 

“home to” unauthorized immigrants. 85 Fed. Reg. 44680. 

It notes that “one State”—now known to be California, see 

Brief for Appellees State of New York et al. 7—is “home to 

more than 2.2 million illegal aliens,” and excluding such individuals from apportionment “could result in the allocation

of two or three [fewer] congressional seats than would otherwise be allocated.” 85 Fed. Reg. 44680. Other consequences will flow from this attempt to alter apportionment.

We have previously noted that “the States use the results 

in drawing intrastate political districts,” and “[t]he Federal 

Government [also] considers census data in dispensing

funds through federal programs to the States.” Wisconsin 

v. City of New York, 517 U. S. 1, 5–6 (1996).

The implementation of the memorandum will therefore 

bring about the very “representational and funding injuries” that the plaintiffs seek to avoid. Brief for Appellees

State of New York et al. 10. 

B 

Given the clarity of the Presidential memorandum, it is 

unsurprising the Government does not contest that plaintiffs have alleged a threatened injury. Rather, it contends 

that both the alleged representational and funding injuries

remain “too speculative” to satisfy Article III’s ripeness requirement prior to the President’s actual enumeration. 

Brief for United States 19. That is because—although the 

Secretary’s report to the President is due in just two

weeks—the Bureau’s plan to implement the memorandum

remains uncertain and “depends on various unknowable 

contingencies about the data,” and until “later in December 

or January, the Bureau cannot predict or even estimate the 
 

Cite as: 592 U. S. ____ (2020) 5 

BREYER, J., dissenting 

results.” Reply Brief for United States 4. The Government 

contends that given these uncertainties, “it is far from a

‘virtual certainty’ that any appellee will ‘lose a [House] seat’ 

when the Memorandum is implemented.” Id., at 5. It also 

says it is “too speculative” that plaintiffs will be disproportionately deprived of federal funding, as it is not yet certain

that the tabulation the President submits to Congress for 

apportionment purposes will also be used as the total population for federal statutes that apportion funds on the basis of States’ proportional population. Brief for United 

States 19–20. At root, the Government contends that “ripeness principles support deferring judicial review of the

Memorandum until it is implemented.” Id., at 21. 

Whether viewed as a question of standing or ripeness, the 

Government’s arguments are insufficient. We have said 

that plaintiffs need not “demonstrate that it is literally certain that the harms they identify will come about” to establish standing. Clapper v. Amnesty Int’l USA, 568 U. S. 398, 

414, n. 5 (2013). Rather, an “allegation of future injury may 

suffice if the threatened injury is ‘certainly impending,’ or 

there is a “‘“substantial risk’” that the harm will occur.’” 

Driehaus, 573 U. S., at 158 (quoting Clapper, 568 U. S., at 

414, n. 5). Looking to the facts here, the memorandum presents the “substantial risk” that our precedents require. 

The Government’s current plans suggest it will be able to 

exclude a significant number of people under its policy. To 

start, even a few weeks out, the Government still does not 

disclaim its intent to carry out the policy to the full extent 

it can do so. See Tr. of Oral Arg. 9–10 (stating that “we 

don’t know what’s feasible, about excluding all illegal aliens,” but recognizing that “some subsets are going to be

much stronger cases for the exercise of [the President’s] discretion than other subsets”). Indeed, the Bureau is committed to excluding as many people as possible even if it must 

act beyond the December 31 statutory deadline to do so. Id., 

at 6–7. And there is a “substantial risk” that it will be able 
 

6 TRUMP v. NEW YORK 

BREYER, J., dissenting 

to do so to the point that it causes significant harm. Both 

here and in related litigation below, the Government has

said that as of early December, it was already feasible to

exclude aliens without lawful status housed in ICE detention centers on census day, a “category [that] is likely in the 

tens of thousands, spread out over multiple States.” Reply 

Brief for United States 6; see also Brief for Appellees

New York Immigration Coalition et al. 15 (citing a prior 

Government estimate that doing so will exclude approximately “50,000 ICE detainees”). Beyond these detainees,

appellees note that the Government has also identified at 

least several million more aliens without lawful status that 

it can “individually identify” and seek to exclude from the 

tabulation. Id., at 15–16. We have been told the Bureau is 

“working very hard to try to report on” (and exclude from 

the apportionment tabulation) a large number of aliens 

without lawful status, including “almost 200,000 persons

who are subject to final orders of removal,” “700,000 DACA

recipients,” and about “3.2 million non-detained individuals

in removal proceedings.” Tr. of Oral Arg. 28–29. All told, 

the Bureau already possesses the administrative records 

necessary to exclude at least four to five million aliens. Id., 

at 29. Those figures are certainly large enough to affect apportionment.

Of equal importance, plaintiffs argue that aside from apportionment itself, the exclusion of aliens without lawful

status from the apportionment count will also negatively

affect federal funding that is based on per-State proportional decennial population totals. Brief for Appellees New 

York Immigration Coalition et al. 18–19; see also Department of Commerce v. New York, 588 U. S. ___, ___ – ___ 

(2019) (slip op., at 9–10) (noting that even a small undercount of noncitizen households can lead those States to “lose 

out on federal funds that are distributed on the basis of 

state population”). Indeed, a number of federal statutes re-
Cite as: 592 U. S. ____ (2020) 7 

BREYER, J., dissenting 

quire that funding be allocated based on the results “certified,” 16 U. S. C. §669c(c)(3), “stated,” 49 U. S. C. 

§47114(d)(1)(B), or “reported,” 52 U. S. C. §20901(d)(4), by 

the decennial census. These phrases seem always to have

been understood to refer to the apportionment tabulation 

reported to the President by the Secretary of Commerce 

(the report here at issue), because that is the only tabulation that the law requires to be “certified” or “reported” as 

part of the decennial census. See 16 U. S. C. §669c(c)(3); 52 

U. S. C. §20901(d)(4). See generally Brief for Professor Andrew Reamer, Ph. D. as Amicus Curiae 2–3. The Government counters that appellees have not identified any reason

why the individuals unlawfully removed from the tabulation could not be added back in for purposes of applying 

funding statutes. Reply Brief for United States 7. But 

there is no indication that the Secretary could or would do 

any such thing—unless of course a court holds that the removal was unlawful. And the possibility of adding back 

those who have otherwise been unlawfully removed from 

the count does not undercut a plaintiff ’s standing to pursue 

a claim of unlawfulness in the first instance. 

Moreover, the statute says that “the President shall

transmit to the Congress a statement showing the whole 

number of persons in each State . . . as ascertained under 

the . . . decennial census of the population.” 2 U. S. C. 

§2a(a) (emphasis added). Statute after statute pegs its 

funding to a State’s share of “the total . . . population of all

the States as determined by the last preceding decennial 

census.” See, e.g., 7 U. S. C. §361c(c)(2) (allocating funding 

by a State’s share of “the total rural [and farm] population

of all” States); §2663(b)(4) (same); 49 U. S. C. 

§5305(d)(1)(A)(i) (for State share of “population of urbanized areas”); §5311(c)(3)(B)(iii) (for State share of “the population of all rural areas”); see also U. S. Census Bureau, 

L. Blumerman & P. Vidal, Uses of Population and Income 

Statistics in Federal Funds Distribution—With a Focus on 
 

8 TRUMP v. NEW YORK 

BREYER, J., dissenting 

Census Bureau Data 18 (2009) (estimating that as of 2009 

at least 24 federal programs automatically distributed at 

least $10 billion in annual funding to States keyed directly 

to the decennial census’s State population figures). Given 

the connection between the decennial census and funding 

allocation, a change of a few thousand people in a State’s 

enumeration can affect its share of federal resources. 

I do not agree with the Court that the lingering uncertainty over the Government’s plans renders this litigation 

unripe, nor that the apportionment process is at a “preliminary stage.” Ante, at 5. For one thing, the Government 

has spent over a year collecting the administrative records 

that will be used to fulfill the Presidential memorandum. 

See Exec. Order No. 13880, 84 Fed. Reg. 33823 (2019) (calling for federal departments to share administrative records

so the Department of Commerce can “generate a more reliable count of the unauthorized alien population in the country . . . [and] an estimate of the aggregate number of aliens

unlawfully present in each State”). For another, the Government has told us in related litigation that further delays

in proceeding with apportionment beyond the statutory

deadline would harm “the ability to meet contingent redistricting deadlines” in the States, because “‘delays would 

mean deadlines that are established in state constitutions 

or statutes will be impossible to meet.’” See Reply Brief in

Support of Application for Stay Pending Appeal in Ross v. 

National Urban League, O.T. 2020, No. 20A62, p. 11. Acting on that concern, we granted the Government’s stay 

pending appeal so as to hasten the Government’s efforts

ahead of these deadlines. See Ross v. National Urban 

League, 592 U. S. ___ (2020). Presumably, waiting to resolve this issue until after the President submits his tabulation will cause further hardship by delaying redistricting 

further. States will begin to consider the consequences of 

reapportionment soon. See, e.g., Del. Code Ann., Tit. 29, 

§805 (2020) (“After the official reporting of the 2020 federal 
 

Cite as: 592 U. S. ____ (2020) 9 

BREYER, J., dissenting 

decennial census by the President to Congress . . . the General Assembly shall, not later than June 30, 2021, reapportion and redistrict the State . . . for the general election of 

2022”). It is of course possible that the Bureau will be unable to find a significant number of matches between the millions of records it has and the census data it is producing in

time for the President to exclude them from his tabulation 

submitted to Congress. But even if the Secretary were to

limit severely his compliance with the President’s memorandum—say, by choosing to “report” only those 50,000 aliens that are estimated to be in ICE detention centers and 

omitting them from his census “tabulation”—that omission

alone presents a “substantial risk” of affecting the census 

calculation for purposes of apportionment and funding. 

That is the very kind of injury of which plaintiffs complain.

Taken together, these considerations demonstrate that now 

is the appropriate time to resolve this case. Cf. Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967) (HARLAN, 

J. for the Court) (explaining that the timing of judicial review turns on “the fitness of the issues for judicial decision 

and the hardship to the parties of withholding court consideration”).

To repeat, the President’s stated goal is to reduce the 

number of Representatives apportioned to the States that 

are home to a disproportionate number of aliens without 

lawful status. The Government has confirmed that it can 

identify millions of these people through administrative 

records. But if the Census Bureau fails to fulfill its mandate to exclude aliens without lawful status and reduce the 

number of Representatives to which certain States are entitled, it will be for reasons not in the record. Where, as 

here, the Government acknowledges it is working to 

achieve an allegedly illegal goal, this Court should not decline to resolve the case simply because the Government

speculates that it might not fully succeed. 
 

10 TRUMP v. NEW YORK 

BREYER, J., dissenting 

For these reasons, I believe that the plaintiffs have alleged a “substantial risk” that unlawfully subtracting aliens without lawful status from the tabulation of the total 

population that the President submits to Congress will inflict both apportionment and appropriations injuries on

them. Those injuries are substantially likely to occur in the 

reasonably near future. This case squarely presents a concrete dispute and we should resolve it now. 

II 

On the merits, I agree with the three lower courts that

have decided the issue, and I would hold the Government’s 

policy unlawful. See New York v. Trump, ___ F. Supp. 3d. 

___, ___ (SDNY, Sept. 10, 2020) (per curiam) (Juris. Statement 83a–94a); San Jose v. Trump, ___ F. Supp. 3d ___, ___ 

– ___ (ND Cal., Oct. 22, 2020) (slip op., at 72–85); Useche v. 

Trump, No. 8:20–cv–02225 (D Md., Nov. 6, 2020) (slip op., 

at 21–30). Once again, the memorandum calls for “the exclusion of illegal aliens from the apportionment base” that

will be used for the “reapportionment of Representatives 

following the 2020 census,” and orders the Secretary of

Commerce to transmit information permitting the President to carry out that policy. 85 Fed. Reg. 44680. The plaintiffs challenge that policy on both constitutional and statutory grounds, arguing that it contravenes the directives to

report the “tabulation of total population by States . . . as 

required for the apportionment,” 13 U. S. C. §141(b), and to

include the “whole number of persons in each State, excluding Indians not taxed.” U. S. Const., Amdt. 14, §2; 2 U. S. C. 

§2a(a). Consistent with this Court’s usual practice, I would 

avoid the constitutional dispute and resolve this case on the

statutory question alone. 

While that statutory question is important, it is not difficult. Our tools of statutory construction all point to “usual

residence” as the primary touchstone for enumeration in 

the decennial census. The concept of residency does not 
 

Cite as: 592 U. S. ____ (2020) 11 

BREYER, J., dissenting 

turn, and has never turned, solely on a person’s immigration status. The memorandum therefore violates Congress’ 

clear command to count every person residing in the country, and should be set aside. 

A 

First, we have the text. The modern apportionment

scheme dates back to 1929. See 46 Stat. 21 (1929 Act). The 

relevant language provides that the apportionment base 

shall include “the whole number of persons in each State” 

“as ascertained under the . . . decennial census.” §22, id., 

at 26 (codified at 2 U. S. C. §2a(a)); see 13 U. S. C. §141(b) 

(requiring the Secretary to transmit the “tabulation of total 

population by States” as required for apportionment (emphasis added)). The usual meaning of “persons,” of course,

includes aliens without lawful status. This Court has said 

as much, and the Government does not argue otherwise.

See Plyler v. Doe, 457 U. S. 202, 211 (1982). Similarly, the

plain meaning of the phrase “in each State,” both in 1929

and now, does not turn on immigration status. Rather, as 

we explained in Franklin, that phrase has always been understood to connote some idea of “usual residence,” picking

up a person who is an “‘inhabitant’” of the State. 505 U. S., 

at 804–805; see also Wesberry v. Sanders, 376 U. S. 1, 13 

(1964). Neither “resident” nor “inhabitant” takes account 

of whether someone is lawfully, as opposed to unlawfully, 

present. See “Inhabitant,” Webster’s New International 

Dictionary 1109 (1927) (“One who dwells or resides permanently in a place”); “Resident,” id., at 1814 (“One who resides in a place; one who dwells in a place for a period of 

more or less duration”).

Moreover, the statute (like the Constitution) explicitly excludes only one category of persons from the apportionment, “Indians not taxed,” 2 U. S. C. §2a(a), though it is evident they “reside” within the United States. Congress

clearly knew how to exclude a certain population that would 
 

 

 

12 TRUMP v. NEW YORK 

BREYER, J., dissenting 

otherwise meet the traditional residency requirement when

it wished to do so. Yet it did not single out aliens without 

lawful status in the 1929 Act. 

Second, historical practice leaves little doubt about the 

statute’s meaning. From the founding era until now, enumeration in the decennial census has always been concerned with residency, not immigration status. The very

first Act setting forth the decennial census procedure stated

that persons should be counted if they “‘usually resid[e] in 

the United States.’” Franklin, 505 U. S., at 804 (citing Act 

of Mar. 1, 1790, ch. 2, §5, 1 Stat. 103). The 1820 decennial 

census included “foreigners not nationalized” among the 

schedule of whole number of persons to be tabulated within 

each State. See Act of March 14, 1820, 3 Stat. 550. The 

1860 census included escaped slaves living in the North,

although those persons were unlawfully present at that

time. See San Jose, ___ F. Supp. 3d., at ___, 2020 WL 

6253433, *7 (citing Record in No. 5:20–cv–5167, ECF No.

64–22, pp. 5–7 (Decl. of Shannon D. Lankenau)). The 1920 

census population count included a minor who had been denied lawful admission to the United States, but who was 

nonetheless paroled within the country during World War

I until she could be sent home. See Record in No. 20–cv– 

5770, Doc. 149–2, Exh. 61, ¶3 (Decl. of Jennifer Mendelsohn) (discussing the inclusion of the minor petitioner in 

Kaplan v. Tod, 267 U. S. 228 (1925), in the census count). 

All told, at the time Congress wrote the 1929 Act, the

United States had conducted more than a dozen decennial 

censuses. As the Government acknowledged below, none of

them excluded residents solely because of immigration status. Juris. Statement 91a. Any contemporary understanding of the words “persons in each State” as ascertained under the “decennial census” would have reflected this 

longstanding and uniform practice. See McQuiggin v. Perkins, 569 U. S. 383, 398, n. 3 (2013) (“Congress legislates

against the backdrop of existing law”). Taken together, the 
 

Cite as: 592 U. S. ____ (2020) 13 

BREYER, J., dissenting 

history is clear as to the statute’s reach; it includes the people who reside here, lawful status or not. 

Third, the records from the legislative debate confirm

that Congress was aware that the words of the statute bore

this meaning. By 1929, federal immigration laws had been

on the books for more than four decades, if not longer. See 

Kleindienst v. Mandel, 408 U. S. 753, 761 (1972). Some 

state laws for apportioning representatives explicitly excluded aliens, aware that an apportionment based simply 

on “the whole number of persons” under the federal decennial census would otherwise include them. See 71 Cong.

Rec. 1977 (1929) (discussing a New York state statute that 

defined the apportionment base to include the number of

“inhabitants, excluding aliens”). Time and again throughout the debate over what became the 1929 Act, members 

considered (and rejected) proposals that would have excluded aliens from the apportionment base. See, e.g., id., at 

2065–2068, 2360, 2451–2455. The debates evince a shared 

understanding that without such an amendment, the Act 

would include those “aliens” present “without the consent

of the American people.” Id., at 1919. See also id., at 1976 

(Sen. Barkley) (discussing “unlawful immigrants” “who

have no legal status”). This understanding was shaped not 

only by the ordinary meaning of the words, but also by legislators’ view of the meaning of those words as they appear

in the Constitution. 

In particular, Senator David A. Reed of Pennsylvania

noted his support for the policy of excluding aliens without 

lawful status, but refrained from voting in favor of a proposal to do just that because he did not believe that the Constitution allowed it. Id., at 1958. See also id., at 1821–1822 

(reprinting C. Turney, Power Of Congress To Exclude Aliens From Enumeration For Purposes Of Apportionment Of 

Representatives (April 30, 1929)); 71 Cong. Rec. 2065–2066 

(discussing a proposed amendment that would immediately 

remove aliens from apportionment “upon the ratification of 
 

 

14 TRUMP v. NEW YORK 

BREYER, J., dissenting 

any amendment to the Constitution excluding aliens”).

That same year, two constitutional amendments were introduced in Congress to exclude aliens from the apportionment base. Neither succeeded. See San Jose, ___ F. Supp. 

3d., at ___, 2020 WL 6253433, *5 (citing Hearing on H. J. 

Res. 102 and H. J. Res. 351 before the House Committee on 

the Judiciary, 70th Cong., 2d Sess., 1 (1929)). All told, Congress was well aware of the implications of its chosen language for the precise question we face here. 

Fourth, the decades following the 1929 Act tell the same 

story. Just like every census that came before, no census

since has excluded people based solely on immigration status. Instead, the census has continued to look to usual residence as the relevant criterion. At numerous points, the 

Executive Branch has reaffirmed its view that the law 

simply does not allow for the exclusion of aliens without 

lawful status who reside in the United States. See, e.g., 135 

Cong. Rec. 22521 (1989) (printing Letter from C. Crawford,

Assistant Attorney Gen., to Sen. Bingaman (Sept. 22, 

1989)); Hearing before the Subcommittee on Energy, Nuclear Proliferation, and Government Processes of the Senate Committee on Governmental Affairs, Enumeration Of 

Undocumented Aliens In The Decennial Census, 99th 

Cong., 1st Sess., 19 (1985) (“Traditional understanding of 

the Constitution and the legal direction provided by the 

Congress has meant that for every census since the first one 

in 1790, we have tried to count residents of the country, regardless of their status”) (Statement of Census Bureau Director J. Keane); Federation for Am. Immigration Reform v. 

Klutznick, 486 F. Supp. 564, 576 (DDC 1980) (“The 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”). Those in the Legislative Branch have routinely

reached the same result. See, e.g., 135 Cong. Rec. 14551 
 

Cite as: 592 U. S. ____ (2020) 15 

BREYER, J., dissenting 

(Statement of Sen. Bumpers); Hearing on S. 2366 before the 

Subcommittee on Energy, Nuclear Proliferation, and Federal Services of the Senate Committee on Governmental Affairs, 96th Cong., 2d Sess., 12 (1980) (Statement of Sen.

Javits); 86 Cong. Rec. 4372 (1940) (Statement of Rep. Celler). While some members may have considered the constitutional question unsettled, all accepted that the governing

statutes would have to be changed to exclude undocumented immigrants. See, e.g., 135 Cong. Rec. 14540 (Statement of Sen. Shelby) (proposing an amendment to allow the

Census Bureau to depart from its “established policy” and 

exclude aliens); Hearing on S. 2366, at 1 (discussing a bill

that would “require that the numbers be adjusted downward to account for people who are not in this country legally”). The apparently uniform view was that the statute

requires the inclusion of all people who usually reside

within the United States. See Franklin, 505 U. S., at 804. 

Each branch, interpreting the law for itself, has followed

the text and history to the same conclusion. 

The 2020 census, in fact, proceeded along this course, at 

least until the Presidential memorandum. According to the 

Census Bureau’s regulations, the “enumeration procedures” for the 2020 census “are guided by the constitutional 

and statutory mandates to count all residents of the several

states.” 83 Fed. Reg. 5525, 5526 (2018). In adopting the 

Rule, the Census Bureau considered a comment expressing

concern over the inclusion of “undocumented people,” but 

adhered to its policy of counting all foreign citizens “if, at

the time of the census, they are living and sleeping most of

the time at a residence in the United States.” Id., at 5530. 

The Rule goes on to clarify that “[p]eople in federal detention 

centers on Census day, such as . . . Immigration and Customs Enforcement (ICE) Service Processing Centers, and 

ICE contract detention facilities” will be “counted at the facility.” Id., at 5535. That Rule did not suggest that enumeration would turn on immigration status. The novelty of 
 

 

16 TRUMP v. NEW YORK 

BREYER, J., dissenting 

the interpretation reflected in the memorandum, after

nearly 100 years of a contrary and consistent position, is yet 

another strong indication that the Government’s reading of

the statute is wrong. See Montana v. Wyoming, 563 U. S. 

368, 387 (2011).

To summarize: The text of the 1929 Act is concerned with 

usual residence, not immigration status. The history, both

before and after the legislation, has for decades been in accord with that straightforward interpretation. And all 

three branches of Government, when facing the exact question presented in this case, have uniformly arrived at the 

same result. 

B 

In the face of this evidence, the Government principally

relies on scattered historic sources from the founding era, 

which it argues imbue the words of the statute with a more

restrictive meaning. The Government’s argument relies on 

two assumptions. First, the Framers intended for the constitutional language “whole number of free persons” to be 

read as synonymous with the word “inhabitant,” a legal 

term of art the Government believes excludes those who are 

in the country in violation of the law. Second, when Congress carried forward the constitutional text into the 1929

Act, it understood those words to have that narrower meaning.

There are defects in both links of this chain. First, the 

argument is not convincing with respect to the widely accepted meaning of the Constitution, either in the founding

era or at the time the Fourteenth Amendment was enacted. 

In Franklin, we understood the term “inhabitant” as comparable to the concept of “usual residency,” which, as the

analysis above demonstrates, does not turn on immigration 

status. 505 U. S., at 804–805. The historical evidence put

forward by the Government does not undermine that result. 

Many of the Government’s sources simply show that the 
 

Cite as: 592 U. S. ____ (2020) 17 

BREYER, J., dissenting 

“usual residence” criterion has been applied to immigrants.

See Dept. of Commerce and Labor, Bureau of the Census,

Thirteenth Census of the United States: Instructions to 

Enumerators, April 15, 1910, 21 (1910) (stating that “aliens

who have left this country” should not be counted because

“nothing definite can be known as to whether such aliens

intend to return to this country”); Bas v. Steele, 2 F. Cas. 

988, 993 (CC Pa. 1818) (concluding a foreign trader visiting

a port with cargo had not established “domicil[e]” in the 

United States because “[g]oing to a place to obtain a cargo, 

and coming away, does not give a [him] a domicil[e], or 

make him an inhabitant”). Other sources show that immigration laws themselves have taken account of similar criteria for other purposes. See Department of Homeland Security v. Thuraissigiam, 591 U. S. ___, ___ (2020) (slip op.,

at 34) (discussing the significance of “‘acquir[ing] any domicil[e] or residence within the United States’” for Due Process rights to attach for those not naturalized or otherwise 

officially admitted to the country (quoting Nishimura Ekiu 

v. United States, 142 U. S. 651, 660 (1892))); see also 

Kaplan, 267 U. S., at 230 (asking whether a minor was legally “dwelling” in the United States for purposes of a naturalization statute). These few instances of a court asking

whether an immigrant is “domiciled” in the country or has

an “intent to return” to the United States do not show that 

immigration status is somehow a proxy for the concept of 

residency. To the contrary, they show that these principles

can be applied to those lawfully and unlawfully present on

the same terms. 

The Government’s argument for a narrower construction

of “inhabitant” turns largely on Vattel’s founding-era treatise on the law of nations, which distinguishes between the 

“inhabitants” and “citizens” of a nation. Brief for United 

States 36 (citing 1 Vattel, The Law of Nations §213 (1760)). 

Even assuming that the Government offers the best reading 

of his work, and that this reading of Vattel informed the 
 

18 TRUMP v. NEW YORK 

BREYER, J., dissenting 

Framers’ understanding of that field, his treatise simply 

cannot bear the weight the Government puts on it. Vattel’s 

work discussed international law, not the United States’ 

scheme for apportionment among the States, an issue not 

intrinsically related to the law of nations nor one for which 

founding-era thinkers drew on Vattel. The Apportionment

Clause emerged from an extensive and uniquely American

debate over both State representation and taxation. The 

final language tied the two together, such that the burdens

of taxation would flow in proportion to the benefits of representation. See Brief for Historians of the Census as Amici 

Curiae 6–11. And however influential Vattel may have 

been for other topics, the Federal Government did not begin

to restrict immigration into the United States until after 

the Civil War. See Brief for State of California et al. as 

Amicus Curiae 17. While the Government offers isolated 

works from a different body of law—regarding a word that

does not appear in the constitutional text—the better guide

to the Constitution’s meaning is the specific historical evidence about domestic apportionment, as well as the decades

of consistent practice that comports with the Clause’s plain 

terms. 

Second, and more importantly for this case, the Framers’ 

intent is not our focus. Instead, the question is the meaning 

of the statute enacted in 1929. Even if the Government’s 

sources evince some ambiguity over the meaning of the 

Constitution’s census provisions in 1787 or 1868—a doubtful proposition—the historical record had resolved it by the

time of the 1929 Act. There is simply no basis for thinking 

that when Congress enacted the statute that mirrored the 

constitutional language it was intending to depart so fundamentally from the procedures that had been consistently 

applied up to that point.

Apart from the historical evidence, the Government offers little more than its assertion that excluding aliens 

without lawful status makes good policy sense. As the 
 

Cite as: 592 U. S. ____ (2020) 19 

BREYER, J., dissenting 

memorandum reasons, “[e]xcluding . . . illegal aliens from

the apportionment base is more consonant with the principles of representative democracy underpinning our system

of Government.” 85 Fed. Reg. 44680. Whatever the merits 

of that policy, it is not the approach to representative democracy that is set forth in the statute. Congress chose instead a view of democracy wherein the Representatives are 

apportioned based on “the whole number of persons in each 

state,” not the whole number of voters, citizens, or lawful 

residents. 

The Government is surely correct that the statute provides the President and the Secretary some degree of discretion in carrying out their statutory responsibilities. The 

concept of “usual residence” is an indeterminate one, which

“has continued to hold broad connotations.” Franklin, 505 

U. S., at 805. The exercise of that discretion may involve a 

number of judgment calls. How long must a person reside

in a State before it can be presumed that she intends to remain? Should prisoners be counted in the State of their incarceration, or the State where they resided prior to, and

where they intend to return following, their confinement?

In resolving such issues, the Executive’s judgment has consistently been directed toward the meaning of “usual residence.” A policy that draws lines based on immigration status does no such thing. Most aliens without lawful status 

have lived exclusively in the United States for many years. 

See Krogstad, Passel, and Cohn, Pew Research Center, Five 

Facts About Illegal Immigration in the U. S. (2019). The 

Government does not suggest otherwise. Its own Residency

Rule, which treated ICE detainees’ residency in the same 

manner as other federal prisoners, recognizes the lack of 

any logical relationship between immigration status and

residence. Put simply, discretion to interpret and apply a 

statutory command is not a blank check to depart from it. 

That, I fear, is what the Government has tried to do here. 
 

20 TRUMP v. NEW YORK 

BREYER, J., dissenting 

Thus, the touchstone for counting persons in the decennial census is their usual residence, not their immigration 

status. That alone is enough to resolve this case, because 

the memorandum seeks to exclude anywhere between tens 

of thousands and millions of persons from the census count 

based solely on their immigration status, and it does so for 

the stated goal of changing the apportionment total at the 

expense of the plaintiffs. The Government seems to believe 

that its policy can stand so long as any alien without lawful 

status is excludable on some other basis. However reasonable such an ad hoc approach might be in theory, that is not 

the policy the memorandum announces, nor does it support 

excluding aliens without lawful status as a class. To the 

extent there is some overlap between aliens without lawful 

status and persons who would not be counted under the ordinary census procedures, that cannot justify the exclusion

of aliens simply on account of their immigration status. It 

is our task to review the policy as promulgated, and that

policy draws a distinction that the statute does not allow. 

III 

It is worth considering the costs of the Presidential memorandum’s departure from settled law. The modern census 

emerged from periods of intense political conflict, whereby

politicians sought to exploit census procedures to their advantage. See Evans, 536 U. S., at 497 (THOMAS, J., concurring in part and dissenting in part); Montana, 503 U. S., at 

451–452, and n. 25. In enacting the 1929 Act, Congress 

sought to address that problem by using clear and broad 

language that would cabin discretion and remove opportunities for political gamesmanship. History shows that, all

things considered, that approach has served us fairly well. 

Departing from the text is an open invitation to use discretion to increase an electoral advantage. This produces the

hostility that the 1929 Congress sought to resolve.

Because I believe plaintiffs’ claims are justiciable, ripe for 
Cite as: 592 U. S. ____ (2020) 21 

BREYER, J., dissenting 

review, and meritorious, I would affirm the lower court’s 

holding. I respectfully dissent.