Friday, September 11, 2020

Three-Judge District Court Finds that Trump Memo to Exclude Undocumented Immigrants from Census Apportionment Is "Unlawful"


Law & Crime reports that a three-judge district court panel unanimously decided that President Donald Trump’s attempt to exclude undocumented immigrants from the U.S. Census-based redistricting process is “unlawful.”

The court ruled that while there is “no dispute that the President has ‘accustomed supervisory powers over his executive officers'” and “thus retains some discretion in the conduct of the decennial census and resulting apportionment calculation,” President Trump did not act “within the boundaries” of the “authority that Congress has granted.” The court, therefore, declared the president’s memo unlawful:

The Presidential Memorandum violates the statutes governing the census and apportionment in two clear respects. First, pursuant to the virtually automatic scheme established by these interlocking statutes, the Secretary is mandated to report a single set of numbers — “[t]he tabulation of total population by States” under the decennial census — to the President, and the President, in turn, is required to use the same set of numbers in connection with apportionment. By directing the Secretary to provide two sets of numbers, one derived from the decennial census and one not, and announcing that it is the policy of the United States to use the latter in connection with apportionment, the Presidential Memorandum deviates from, and thus violates, the statutory scheme. Second, the Presidential Memorandum violates the statute governing apportionment because, so long as they reside in the United States, illegal aliens qualify as “persons in” a “State” as Congress used those words.

On those bases, we declare the Presidential Memorandum to be an unlawful exercise of the authority granted to the President by statute and enjoin Defendants — but not the President himself — from including in the Secretary’s report to the President any information concerning the number of aliens in each State “who are not in a lawful immigration status under the Immigration and Nationality Act.” Presidential Memorandum, 85 Fed. Reg. at 44,680. Because the President exceeded the authority granted to him by Congress by statute, we need not, and do not, reach the overlapping, albeit distinct, question of whether the Presidential Memorandum constitutes a violation of the Constitution itself.

Here is the per curiam order. Law360 (registration required) also covered the story.

Sitting on the three-judge district court was U.S. Circuit Judges Richard C. Wesley and Peter W. Hall, both appointed by President George W. Bush, and U.S. District Judge Jesse M. Furman, an Obama appointee.


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