The Role of a 1992 Census Case and John Roberts Jr. in a 2020 Census Challenge

Earlier in Chief Justice John Roberts Jr.’s legal career, he represented the government as deputy solicitor general in a 1992 census case. On Monday, he may hear some of his words from 28 years ago quoted back to him.

The Supreme Court hears arguments that morning on the legality of President Donald Trump’s July memorandum to the secretary of commerce on the exclusion of undocumented immigrants from the 2020 census population count that is used for, among other purposes, apportionment of U.S. House seats. The memorandum stated: “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act.”

More accurately, it is the new policy of the United States because the census has always been understood to count every resident —citizen and non-citizen—who resides in the country, regardless of immigration status.

Monday’s case, Trump v. New York, is the second time the Trump administration has sought to negate the participation of undocumented immigrants in the 2020 census. Just last term, the Supreme Court, in a 5-4 decision, rejected Trump’s effort to place a citizenship question on the census, not because it was unconstitutional, but because the administration did not give a genuine, true reason for the question as required by law.

Monday’s case differs from last term’s case because the focus is not on how the census is conducted but on how the actual count is used by the secretary of commerce and the president.

Federal law establishes certain census deadlines to be met: the secretary of commerce, to whom Congress has delegated the power to conduct the census, must send a report to the president by December 31 containing “the tabulation of total population by States … as required for the apportionment” of House seats. By January 10, the president, in turn, must send a report to Congress that contains “the whole number of persons in each State,” based on data from the “decennial census,” along with his determination of “the number of Representatives to which each State would be entitled.”

But the Trump memo directs the secretary to submit to the president two tabulations in the secretary’s census report. One is the actual enumeration and the other consists of “information permitting the president, to the extent practicable,” to carry out the policy of excluding illegal aliens from the apportionment “to the maximum extent of the president’s discretion under the law.” After losing the citizenship question in the Supreme Court, President Trump had directed federal agencies to use administrative records to try to assemble information on the number of undocumented immigrants in the country.

The political stakes are high. Excluding an estimated 11 million undocumented immigrants from the apportionment base could mean the loss of House seats from generally Democratic urban areas where many live to the advantage of largely Republican rural areas.

After the Trump memorandum was issued in July, two groups filed suit challenging it: a coalition of state and local governments led by New York and an immigration organization, the New York Immigration Coalition. A special three-judge district court, as required by law, heard their challenge and agreed that the memorandum violated federal law. The court said it was illegal because apportionment would not be based on data from the census and the president did not have the discretion to exclude undocumented immigrants. In three other legal challenges, special district courts also ruled against Trump.

In the Supreme Court, the Trump administration raises procedural arguments that could end the case without a decision on the legality or constitutionality of the Trump memorandum. The challengers vigorously rebut them. But the justices, who must always be certain first that they have an actual controversy before them, will weigh those arguments before reaching the heartland issue: Is the memorandum a permissible exercise of the President’s discretion under laws governing congressional apportionment?

The government’s top lawyer, Acting Solicitor General Jeffrey Wall, argues that the Census Act and the Reapportionment Act give the president discretion to direct the commerce secretary to include two sets of numbers in the report to the president and does not require undocumented immigrants to be included in the apportionment base.

“The Memorandum is a permissible exercise of the discretion that Congress has vested in the secretary to determine, subject to the president’s direction, how to conduct the decennial census and ascertain the persons in each State for apportionment purposes,” Wall argues in the government’s brief to the justices.

It is the discretion issue that brings us back to John Roberts Jr. in 1992. The government in Monday’s case relies heavily on the court’s 1992 decision in Franklin v. Massachusetts. In that case, Massachusetts challenged the commerce secretary’s decision to allocate Department of Defense personnel stationed overseas to their “homes of record” for census purposes. The state contended the decision violated the constitutional requirement of counting the number of people “in each State” and was arbitrary and capricious under the Administrative Procedure Act.

In the end, a unanimous court led by Justice Sandra Day O’Connor rejected the constitutional challenge. But the issue of presidential discretion was addressed in the part of the decision on whether the secretary’s policy was a “final agency action” that could be reviewed by the court under the Administrative Procedure Act. O’Connor and four other justices said it was not final agency action.

O’Connor wrote and the Trump administration now emphasizes that there is “no statute that rules out an instruction by the president to the secretary to reform the census, even after the data is submitted to him.” Federal law doesn’t curtail the president’s authority to direct the commerce secretary in making policy judgments in the census and the president is not required to adhere to policy judgments reflected in the secretary’s report to him, said O’Connor.

“The president, not the secretary, takes the final action that affects the states,” she concluded. “That the final act is that of the president is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial.”

Justice John Paul Stevens, joined by three other justices, strongly disagreed. “The logic of the Court’s opinion escapes me, and apparently was not obvious to the Solicitor General (John Roberts Jr.), for he advanced no such novel claim in his argument seeking reversal,” Stevens wrote.

Under the plain language of the Census Act, Stevens said, the president has no substantive role in the computation of the census. The commerce secretary takes the decennial census and the president performs the apportionment calculations and transmits the census figures and apportionment results to Congress, he wrote. The statute’s language, he added, “cannot support the Court’s view that the statute endows the president with discretion to modify the census results reported by the secretary.”

But Trump administration lawyer Wall presses O’Connor’s view. “Franklin thus makes clear that the president has full authority to direct an approach for completing the census different from that preferred by the Secretary,” write Wall.

The challengers to the Trump memorandum disagree with the government’s interpretation of Franklin as it applies to the memorandum. They argue that there is an unbroken “historical precedent of using the actual Enumeration for purposes of apportionment.”

And they rely on Roberts’ statements during arguments in Franklin to bolster their point. The challengers say, “As the Government (Roberts) told the Court in Franklin, ‘the law directs the President to apply ... a particular mathematical formula to the population figures,’ and ‘it would be unlawful ... to say, these are the figures, they are right, but I am going to submit a different statement.’”

The challengers also contend that Franklin involved the actual conduct of the census and the secretary’s decision before the counting began to allocate overseas federal personnel to their home states. The Trump memorandum does not change the conduct of the census itself, they argue. “It takes the final, completed census as a starting point, and then, ex-post, departs from the actual enumeration by removing people already counted, for the express purpose of diminishing the representation of specific ‘States adopting policies’ with which the Administration disagrees.”

Franklin is a particularly important precedent in the Trump memorandum case, but not the only one. And the issue of presidential discretion or authority in apportionment is a central issue but also not the only issue in the case.

The census taking has ended, but apportionment has not yet begun. And although the outcome of the case may be difficult to predict, we can be assured that this case will not be the last stemming from the 2020 census.

As Justice O’Connor said in the first line of her opinion in Franklin: “As one season follows another, the decennial census has again generated a number of reapportionment controversies.”

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.