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Donald J. Trump, President of the United States, et al., Appellants v. New York, et al.

Paid petition · United States District Court for the Southern District of New York, No. 20-CV-5770 RCW PWH JMF · judgment September 10, 2020

Decided · December 18, 2020
Pre-decision estimate: 97% cert probability (95% interval 92%–99%)

Before the decision, about 23.4× the 4.1% base rate. The model weighted this up for a direct appeal from a three-judge district court (mandatory jurisdiction), a federal-government petitioner, and a petition filed soon after the judgment below.

Questions presented

Congress has provided that, for purposes of apportioning seats in the House of Representatives, the President 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 Secretary 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 requirements of Article III of the Constitution.

  2. Whether the Memorandum is a permissible exercise of the President’s discretion under the provisions of law governing congressional apportionment. FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION IS POSTPONED TO THE HEARING OF THE CASE ON THE MERITS. THE CASE IS SET FOR ARGUMENT ON MONDAY, NOVEMBER 30, 2020. EXPEDITED BRIEFING. JURISDICTION POSTPONED 10/16/2020

Counsel of record

For petitioner
Jeffrey B. Wall
Sullivan & Cromwell LLP

For respondent
Dale E. Ho
American Civil Liberties Union

Case

Conference history
Distributed for 1 conference

Amicus briefs
29 cert-stage

Argument & decision

Argued November 30, 2020 — Jeffrey B. Wall · Barbara D. Underwood · Dale E. Ho. Audio and transcript

Decided December 18, 2020. Opinion by Per Curiam.

Proceedings

  1. Jan 19 2021
    JUDGMENT ISSUED.
  2. Dec 18 2020
    Judgment VACATED and case REMANDED. Opinion per curiam. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.
  3. Nov 30 2020
    Argued. For appellants: Jeffrey B. Wall, Acting Solicitor General, Department of Justice, Washington, D. C. For government appellees: Barbara D. Underwood, Solicitor General, New York, N. Y. For private appellees: Dale E. Ho, New York, N. Y.
  4. Nov 23 2020
    Reply of appellants Donald J. Trump, President of the United States, et al. filed. (Distributed)
  5. Nov 20 2020
    The joint motion of appellees for enlargement of time for oral argument and for divided argument is GRANTED, and the time is allotted as follows: 40 minutes for the Acting Solicitor General, 20 minutes for the government appellees, and 20 minutes for the private appellees.
  6. Nov 16 2020
    Brief amici curiae of National School Boards Association, et al. filed. (Distributed)
  7. Nov 16 2020
    Amicus brief of Local Governments not accepted for filing. (Corrected brief to be filed - November 18, 2020)
  8. Nov 16 2020
    Brief amici curiae of Local Governments filed (11/19/2020). (Distributed)
  9. Nov 16 2020
    Brief of appellees New York, et al. filed. (Distributed)
  10. Nov 16 2020
    Brief of appellees New York Immigration Coalition, et al. filed. (Distributed)
  11. Nov 16 2020
    Brief amici curiae of Faith-Based and Immigrants' Rights Organizations filed. (Distributed)
  12. Nov 16 2020
    Brief amici curiae of City of San Jose, California, et al. filed. (Distributed)
  13. Nov 16 2020
    Brief amicus curiae of United States House of Representatives filed. (Distributed)
  14. Nov 16 2020
    Brief amicus curiae of National Congress of American Indians filed. (Distributed)
  15. Nov 16 2020
    Brief amici curiae of State of California, et al. filed. (Distributed)
  16. Nov 16 2020
    Brief amici curiae of Former Directors of the U.S. Census Bureau filed. (Distributed)
  17. Nov 16 2020
    Brief amici curiae of Businesses and Business Organizations filed. (Distributed)
  18. Nov 16 2020
    Brief amici curiae of Common Cause et al. filed. (Distributed)
  19. Nov 16 2020
    Brief amici curiae of Ilya Somin and Sanford Levinson filed. (Distributed)
  20. Nov 16 2020
    Brief amicus curiae of NAACP Legal Defense & Educational Fund, Inc. filed. (Distributed)
  21. Nov 16 2020
    Brief amicus curiae of Professor Andrew Reamer, Ph.D. filed. (Distributed)
  22. Nov 16 2020
    Brief amici curiae of Historians of the Census filed. (Distributed)
  23. Nov 16 2020
    Brief amici curiae of LatinoJustice PRLDEF And Twelve Amici Curiae filed. (Distributed)
  24. Nov 16 2020
    Brief amici curiae of United States Conference of Catholic Bishops et al. filed. (Distributed)
  25. Nov 16 2020
    Brief amici curiae of Members of Congress filed. (Distributed)
  26. Nov 16 2020
    Brief amici curiae of The League of Women Voters of the United States, et al. filed. (Distributed)
  27. Nov 13 2020
    Brief amicus curiae of Michael L. Rosin filed. (Distributed)
  28. Nov 12 2020
    Joint motion for enlargement of time for oral argument and for divided argument filed by appellees.
  29. Nov 11 2020
    Any motion pertaining to the oral argument in this case shall be filed on or before Monday, November 16, 2020.
  30. Oct 30 2020
    Brief of appellants Donald J. Trump, President of the United States, et al. filed. (Distributed)
  31. Oct 30 2020
    Joint appendix filed. (Distributed)
  32. Oct 30 2020
    Brief amicus curiae of Alabama filed. (Distributed)
  33. Oct 30 2020
    Brief amicus curiae of Immigration Reform Law Institute filed. (Distributed)
  34. Oct 30 2020
    Brief amici curiae of States of Louisiana, et al. filed. (Distributed)
  35. Oct 30 2020
    Brief amicus curiae of Fair Lines America Foundation, Inc. in support of neither party filed. (Distributed)
  36. Oct 30 2020
    Brief amicus curiae of Dr. John S. Baker, Jr. filed. (Distributed)
  37. Oct 30 2020
    Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed. (Distributed)
  38. Oct 30 2020
    Brief amici curiae of Citizens United, Citizens United Foundation, et al. filed. (Distributed)
  39. Oct 30 2020
    Brief amici curiae of U.S. Reps. Morris Jackson “Mo” Brooks, Jr., et al. filed. (Distributed)
  40. Oct 28 2020
    Blanket Consent filed by Respondent, New York Immigration Coalition, et al.
  41. Oct 28 2020
    Blanket Consent filed by Petitioner, Donald J. Trump, President of the United States, et al.
  42. Oct 28 2020
    Blanket Consent filed by Respondent, New York et al. (Government Appellees)
  43. Oct 27 2020
    CIRCULATED
  44. Oct 20 2020
    SET FOR ARGUMENT on Monday, November 30, 2020.
  45. Oct 16 2020
    Further consideration of the question of jurisdiction is POSTPONED to the hearing of the case on the merits. The case is set for argument on Monday, November 30, 2020. Appellants’ brief on the merits, and any amicus curiae briefs in support of appellants or in support of neither party, shall be filed on or before Friday, October 30, 2020. Appellees’ briefs on the merits, and any amicus curiae briefs in support of appellees, shall be filed on or before Monday, November 16, 2020. The reply brief shall be filed by 2 p.m., Monday, November 23, 2020.
  46. Oct 13 2020
    DISTRIBUTED for Conference of 10/16/2020.
  47. Oct 13 2020
    Reply of appellant Donald J. Trump, President of the United States, et al. filed.
  48. Oct 09 2020
    Supplemental brief of appellees New York Immigration Coalition, et al. filed. (Distributed)
  49. Oct 07 2020
    Motion to affirm filed by appellees New York et al. (Government Appellees). (Distributed)
  50. Oct 07 2020
    Motion to dismiss or affirm filed by appellees New York Immigration Coalition, et al.
  51. Oct 06 2020
    Brief amicus curiae of Immigration Reform Law Institute filed.
  52. Oct 02 2020
    Supplemental brief of appellants Donald J. Trump, President of the United States, et al. filed.
  53. Oct 02 2020
    Brief amici curiae of Citizens United, et al. filed.
  54. Sep 30 2020
    Appellants’ motion to expedite consideration of the jurisdictional statement is granted in part, and appellees are directed to file a response to the jurisdictional statement on or before 5 p.m. on Wednesday, October 7, 2020.
  55. Sep 29 2020
    Reply in support of motion filed.
  56. Sep 29 2020
    Supplemental brief of appellees New York, et al. filed.
  57. Sep 28 2020
    Response to motion from appellee New York, et al. filed.
  58. Sep 25 2020
    Response to the motion to expedite consideration of the Jurisdictional statement requested. The response is due Monday, September 28, 2020 by noon ET.
  59. Sep 22 2020
    Statement as to jurisdiction filed. (Response due October 22, 2020)
  60. Sep 22 2020
    Motion to expedite consideration of the jurisdictional statement filed by appellants.