New York Immigration Coalition v. Trump

On July 21, 2020, President Donald Trump issued a Memorandum addressed to Secretary of Commerce Wilbur Ross, declaring plans to exclude undocumented immigrants from the apportionment base for purposes of congressional representation. President Trump asked the Census Department to issue two sets of numbers: the total population of each state, and the total population of each state minus the number of people not in lawful immigration status. Notably, the Memorandum provided no guidance on how to determine citizenship status, given that previous attempts to ask Census respondents about their citizenship had been defeated in Department of Commerce v. New York.

On July 24, 2020, the ACLU, the New York Civil Liberties Union, the ACLU of Texas, and Arnold & Porter filed a lawsuit in federal court challenging the policy. Brought on behalf of the New York Immigration Coalition, Make the Road New York, CASA, American-Arab Anti-Discrimination Committee, ADC Research Institute, and FIEL Houston, the suit alleged the Memorandum violated the statutes governing the census and apportionment, as well as the Constitution. Shortly afterwards, the case was consolidated with another similar lawsuit brought by a coalition of governmental entities, including twenty-two states and the District of Columbia. The parties in the consolidated case then moved for summary judgment, or in the alternative, a preliminary injunction declaring the Memorandum unlawful.

On September 10, 2020, a three-judge panel of the District Court declared that the Memorandum was unlawful, and ordered the Secretary of Commerce not to include any information on the number of undocumented immigrants in each state. The government promptly appealed to the U.S. Supreme Court (an option available in a narrow class of cases, including those concerning the census), and sought a stay of the lower court’s order, which was denied.

At the Supreme Court, the parties first submitted briefs as to whether the case should be resolved on an expedited basis, in light of statutory deadlines concerning the transmission of information from the Secretary of Commerce to the President. On October 16, 2020, the Court issued an order setting the case for a full hearing on the merits on an expedited basis, with oral arguments to occur in late November.

On November 30, 2020, former Voting Rights Project Director Dale Ho argued the case for the Plaintiffs before the U.S. Supreme Court.

On December 18, 2020, the Supreme Court issued its opinion, finding the case not ripe for review, reasoning that future events – including the extent to which undocumented people could and would be excluded from the apportionment count, and whether this exclusion would in fact shift congressional representation – were too speculative to allow for court adjudication. Therefore, the Supreme Court vacated the lower court’s order. On January 21, 2021, the day he took office, President Biden issued an executive order rescinding the challenged Memorandum.