People demonstrate outside the U.S. Supreme Court on the day of arguments in the census case United States Department of Commerce v. New York. Credit: Diego M. Radzinschi / NLJ

President Donald Trump's main legal authority for his order to exclude undocumented immigrants from the 2020 census apportionment is a 1992 U.S. Supreme Court decision that was argued by then U.S. principal deputy solicitor general John Roberts Jr.

In Trump's July 21 "Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census," the president relies on the justices' ruling in Franklin v. Massachusetts for his argument that he has the discretion to remove those aliens from his final calculation of the number of U.S. Representatives to be apportioned to each state.

"The Congress has provided that it is 'the president's personal transmittal of the report to Congress' that 'settles the apportionment' of representatives among the states, and the president's discretion to settle the apportionment is more than 'ceremonial or ministerial' and is essential 'to the integrity of the process,'" Trump's memo stated, quoting from the Franklin decision.

It is not clear whether the Trump administration's new memorandum is based on an opinion by the U.S. Justice Department's office of legal counsel or some other legal advice. The new effort by the Trump administration already faces a tangle of lawsuits in federal courts across the country.

The move by the Trump administration is an effort around last term's Supreme Court ruling, which said the government had not justified its drive not to count undocumented immigrants from the census. Roberts wrote for the majority in the case—and he called the government's arguments "contrived." Under the new executive order, those immigrants would be counted. But Trump would discount that figure from the population number transmitted to Congress.

In 1992, Roberts worked in a Justice Department headed by then-Attorney General William Barr in the George H.W. Bush administration. In the Franklin case, Roberts defended then-Commerce Secretary Barbara Franklin's decision to allocate Defense Department overseas employees to particular states for reapportionment purposes in the 1990 census.

A lower court had ruled in a challenge by Massachusetts that the decision was arbitrary and capricious under the Administrative Procedure Act. The justices reversed, ruling there was no final agency action that was reviewable under the APA, and the secretary's decision was constitutional.

Roberts' argument figured in a dispute between Franklin's author, Justice Sandra Day O'Connor, and Justice John Paul Stevens, who was in dissent, over a president's discretion once the census numbers have been conveyed to that president. The issue was important to deciding whether the census report to a president was a "final agency action" for purposes of the APA.

Sandra Day O'Connor. Credit: Rick Kopstein / ALM

O'Connor, who was joined by Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Clarence Thomas, said the apportionment calculation is of an "admittedly ministerial nature" but the census statute "does not curtail the president's authority to direct the secretary in making policy judgments that result in 'the decennial census.'"

Stevens, joined by Justices Harry Blackmun, Anthony Kennedy and David Souter, disagreed, writing: "While asserting that the president has authority to direct the secretary's performance of the census, the solicitor general acknowledged that the statute does not authorize the president to deviate from the secretary's report."

Stevens quoted an exchange with Roberts during arguments in Franklin:

Roberts: The law directs [the president] to apply, of course, a particular mathematic formula to the population figures he receives, but I don't think there is a limit on his exercise of authority to direct the Secretary of Commerce to conduct the census in a particular manner. It would be unlawful, maybe not subject to judicial review, but unlawful just to say, these are the figures, they are right, but I am going to submit a different statement. But he can certainly direct the Secretary in the conduct of the census.

Stevens: But would he have to remand it in effect to the Secretary or could he say, well, I have had somebody over at the FBI making some checks for me and they tell me there are really more people in Massachusetts, so I am going to give them extra seats.

Roberts: I think under the law he is supposed to base his calculation on the figures submitted by the Secretary.

While Trump sees in the Franklin decision support for his new policy directive, at least one of three lawsuits challenging that policy views the Supreme Court's Franklin decision as support for their claims that the policy violates the Constitution in multiple ways. Roberts is cited for that support in the complaint Common Cause v. Trump, filed last week in the U.S. District Court for the District of Columbia.

"The executive branch has similarly conceded the exclusively ministerial nature of the president's role in translating the census data to an apportionment determination," Common Cause's lawyers at Bondurant Mixson & Elmore wrote, pointing to the reply brief that Roberts filed as a Justice Department lawyer.

In addition to the Common Cause lawsuit, the state of New York and more than a dozen other states and cities are challenging the Trump policy in federal district court in the Southern District of New York. An ACLU lawsuit—New York Immigration Coalition v. Trump—was also filed in the New York federal trial court.

The Mexican American Legal Defense and Educational Fund and Asian Americans Advancing Justice reportedly are also preparing to challenge the Trump memo as part of their ongoing suit in the U.S. District Court for the District of Maryland over the administration's efforts to produce citizenship data.

 

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