State of New York v. Trump

Background

The opinion concerns a July 21, 2020 presidential memorandum stating that, for reapportionment after the 2020 census, the United States would exclude from the apportionment base aliens who were not in lawful immigration status. The plaintiffs challenged the memorandum, arguing that it violated the Constitution, the federal census and apportionment statutes, and other laws.

In an earlier opinion, the court granted the plaintiffs summary judgment. It held that the memorandum was an ultra vires violation—that is, an action beyond the authority delegated by Congress—to count the whole number of persons in each state and apportion House members according to the states’ populations under 2 U.S.C. § 2a and 13 U.S.C. § 141. The court declared the memorandum unlawful and enjoined the Secretary of Commerce and other defendants from including information about the number of people in each state who were not in lawful immigration status in the Secretary’s report to the President under Section 141(b) of the Census Act. The court did not bar defendants from continuing to study whether and how that number could be calculated.

Motion for a stay

The defendants appealed the judgment to the Supreme Court and moved for a stay pending appeal. A stay would have paused enforcement of the judgment while the appeal proceeded. The court applied four factors: whether the defendants were likely to succeed on the merits, whether they would suffer irreparable harm without a stay, whether a stay would substantially injure the plaintiffs, and where the public interest lay. The court explained that the defendants bore the heavy burden of showing that a stay was warranted.

Irreparable harm

The court first found that the defendants had not shown irreparable harm. Their filing stated only that they “may” suffer irreparable injury, rather than showing that such injury would occur. The court also found that their own earlier statements undermined their claim of harm. The defendants had previously argued that an incorrect apportionment number could be corrected later and that the case did not need to be resolved before the numbers were submitted to the President, so long as it was resolved in time for the 2022 elections. The court held that those positions prevented the defendants from establishing irreparable harm from not receiving a stay.

Likelihood of success

The court rejected the defendants’ three arguments that they were likely to succeed on appeal.

First, the defendants argued that the court had overlooked authority allowing the use of administrative records in conducting the census. The court disagreed. It explained that the earlier decision did not prohibit using administrative records as part of the census itself. Instead, the presidential memorandum directed the Secretary to provide the ordinary census tabulation and a second set of numbers based on something other than the census. The court concluded that this violated the statutes governing the census and apportionment.

Second, the defendants argued that people residing in the United States without lawful immigration status could be excluded from the statutory phrase “whole number of persons in each State.” The court said that the historical record did not support the interpretation advanced by the defendants and that, when the relevant statutory language was enacted, the settled understanding was that the apportionment base included all people residing in a state without regard to legal status. The court again declined to decide the separate constitutional question because the statutory issue resolved the matter without reaching that question.

Third, the defendants argued that there was a mismatch between the census-count harm relied on by the court and the injunction, which concerned conduct after census field operations ended. The court held that the defendants had waived this argument by not raising it earlier. It also said that the defendants were seeking the wrong relief at the wrong time: if circumstances changed after census operations, they could move under Federal Rules of Civil Procedure 60(b)(5) and 62(d) to modify or dissolve the injunction. The court further concluded that the argument did not justify staying the declaratory judgment, which declared the memorandum unlawful.

Injury to plaintiffs and public interest

The court found that the remaining stay factors also weighed against the defendants. It stated that the plaintiffs would suffer the previously identified injuries from an inaccurate census count, including consequences that could last for a decade. The court also rejected the defendants’ argument that a stay would promote clarity for the public because the defendants had not explained how they planned to carry out the memorandum. The court stated that the public generally has no interest in continuing unlawful government action.

Disposition

The court held that the defendants had not shown that the circumstances justified a stay. It specifically found that they had not shown a likelihood of success on the merits or that a stay would serve the public interest, and it found their arguments about irreparable harm and urgency unsupported by their earlier positions. The court therefore denied the defendants’ motion for a stay and directed the clerk to terminate ECF No. 171. The opinion was issued per curiam and signed by Circuit Judges Richard C. Wesley and Peter W. Hall and District Judge Jesse M. Furman.