In an opinion today, a three-judge SDNY panel comprised of Judge Furman and Circuit Judges Wesley and Hall invalidated a Presidential memorandum which stated that, in apportioning Congressional seats, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” (The three-judge structure was triggered by 28 U.S.C. § 2284(b), which governs cases about Congressional apportionment.)
The panel concluded that the memorandum conflicted with a statutory mandate to apportion Congressional seats based on the census results alone:
The [Commerce] Secretary is required to report a single set of figures to the President — namely, “[t]he tabulation of population by States” under the “decennial census” — and the President is then required to use those same figures to determine apportionment using the method of equal proportions.
The Presidential Memorandum deviates from, and thus violates, these statutory requirements. Whereas the statute calls for the Secretary to include only the census figures in his report to the President, the Presidential Memorandum mandates that the Secretary provide a second set of figures as well: namely, the population of each State “exclud[ing]” illegal aliens.
The Presidential Memorandum leaves it to the Secretary how to come up with those figures, but they will necessarily be derived from something other than the census itself, as the 2020 census is not gathering information concerning citizenship or immigration status, and the 2020 census itself is counting illegal aliens. By doing so, the Presidential Memorandum violates Congress’s mandate to use the results of the census — and only the results of the census — in connection with the apportionment process . . . .