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State of New York v. Trump
"In a Presidential Memorandum issued on that date (and entered into the Federal Register two days later), the President declared that, “[f]or the purpose of the reapportionment of Representatives following the 2020 census” — which, as of today, is still ongoing — “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679, 44,680 (July 23, 2020) (ECF No. 1-1) (the “Presidential Memorandum”). ... Plaintiffs are entitled to summary judgment. 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."