No. 20-366
In the Supreme Court of the United States
D
ONALD
J.
T
RUMP
,
P
RESIDENT OF THE
U
NITED
S
TATES
,
ET AL
.,
APPELLANTS
v.
S
TATE OF
N
EW
Y
ORK
,
ET AL
.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR THE APPELLANTS
J
EFFREY
B.
W
ALL
Acting Solicitor General Counsel of Record
J
EFFREY
B
OSSERT
C
LARK
Acting Assistant Attorney General
H
ASHIM
M.
M
OOPPAN
Counselor to the Solicitor General
S
OPAN
J
OSHI
Senior Counsel to the Assistant Attorney General
N
ICOLE
F
RAZER
R
EAVES
B
RINTON
L
UCAS
Assistants to the Solicitor General Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
(I)
QUESTIONS PRESENTED
Congress has provided that, for purposes of appor-tioning seats in the House of Representatives, the Pres-ident shall prepare “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). It has further provided that the Secre-tary of Commerce shall take the decennial census “in such form and content as he may determine,” 13 U.S.C. 141(a), and shall tabulate the results in a report to the President, 13 U.S.C. 141(b). The President has issued a Memorandum instructing the Secretary to include within that report information enabling the President to implement a policy decision to exclude illegal aliens from the base population number for apportionment “to the maximum extent feasible and consistent with the discretion delegated to the executive branch.” 85 Fed. Reg. 44,679, 44,680 (July 23, 2020). At the behest of plaintiffs urging that the exclusion of illegal aliens would unconstitutionally alter the apportionment and chill some persons from participating in the census, a three-judge district court declared the Memorandum unlawful and enjoined the Secretary from including the information in his report. The questions presented are: 1. Whether the relief entered satisfies the require-ments of Article III of the Constitution. 2. Whether the Memorandum is a permissible exer-cise of the President’s discretion under the provisions of law governing congressional apportionment.
(III)
TABLE OF CONTENTS
Page Opinion below ................................................................................ 1
I. The relief awarded fails to satisfy Article III’s requirements .................................................................. 13
A. The “chilling effect” injury supporting the judgment is now moot and has always been too speculative ................................................................ 15
B. Any alternative apportionment-based injuries are also too speculative ........................................... 18
II. The Presidential Memorandum is lawful under the statutory and constitutional provisions governing apportionment ................................................................ 21
A. The Census Act permits the President to direct the Secretary, when taking the census and tabulating the population, to consider administrative records and include two sets of numbers in his report ............................................. 22
B. The Reapportionment Act does not require the President to include all illegal aliens within the apportionment base ................................................ 29
C. Appellees’ constitutional claims should be rejected for the same reasons ................................ 46
Appendix — Constitutional, statutory, and regulatory provisions ............................................................ 1a
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