Transcripts For CSPAN Trump V. New York Oral Argument 20240711

Justice and the associate justices of the Supreme Court of the United States. All persons having business for the honorable Supreme Court of the United States are advised to give their attention for the court is now sitting. God save the United States and this honorable court. We will hear argument first this morning in case trump vs. New york. Mr. Chief justice and may it please the court, this case should be over. Thatistrict court held illegal aliens would be shielded from her dissipating in the enumeration. But that is now over, and whatever existed has thawed. They pivoted therefore to possible future injuries but as of this very morning, career experts at the Census Bureau confirmed with me that they still dont know even roughly how many illegal aliens they would be able to identify, let alone how their number and geographic concentration might affect the course of it. And if they dont know, certainly the other parties in this case do not. The court therefore should follow the course charted by the District Court last week. Vacate the judgment below, allow the secretary to comply with the memorandum, and allow any effect to be litigated as it normally would be. On the merits, there is no procedural problem with the memorandum. The president may direct two sets of numbers so that he may decide how to exercise whatever discretion he has. Here is fight substantive over how much discretion the president has. History and precedent are all clear about the general test whether one is an inhabitant. The question is how to apply that test to people who are present in the country illegally. Treating someone apprehended at the border on march 31 scheduled to be removed on april 2 as a usual or settle resident of the United States on april 1 flies in the face of this court cases, common sense, and any sound theory and Political Representation. The president has at least some discretion to determine that at least some illegal aliens lack enduring ties to the state which means that the judgment should be reversed. I welcome the court questions. My first question goes to the very first point you raise. We expedited this case in light of the december 31 deadline for the secretary to transmit the census to the president. Is that date still operative . Do you still need a decision by that date . The situation is fairly fluid, mr. Chief justice. Because of the two weeks that we lost to the california injunction and to subsequent issues and processing of the data, we are not currently on by the send a report statutory deadline. Morning, i confirmed Senior Leadership at the department of commerce and the Census Bureau that we are hopeful and it remains possible that we can get at least some of related dated to the president in january, so we still do need relief from the court, yes. Sounds like you had a busy morning. What do you mean, pm data . President ial memorandum data. The data the president has requested in order to potentially back out illegal aliens from the Apportionment Base. Question, ifnding the court doesnt intervene now, before the secretary transmits the information to the president , i dont know when the court will be able to intervene. All that would be left after is theansmittal transmittal by the president to the house. If the injury cant be redressed at this point, when could it be . In a post apportionment lawsuit just as in franklin or wisconsin or utah v. Evans. Tothe bureau is able identify enough aliens in the president excludes those categories and that affects the apportionment. A that happens, you have postapportionment challenge just as in franklin for the secretary to revise this report and for the president to send a new report to the house, in effect to redo the apportionment. Isnt that going to be like having to unscramble the eggs . Any one state is going to have ripple effects all across the country and it does seem like it would be more manageable at an earlier stage. Dont want to resist this too much because we would prefer from the courts to reach the merits and uphold the president ial memorandum, we just think for the reasons given by the District Court last week, there are too many unknowns. That there is a bit of an omelette to unscramble, but we do unscramble that in post apportionment lawsuit. And on the flipside, you could have the court issuing an opinion on what the president may or may not do only to discover days or weeks later that it is effectively advisory because the numbers are not large enough to affect the apportionment and other wouldnt bepellees injured. That faces a very serious problem either as article three spending or credential rightness. Should be assumed that we are not going to be talking about all illegal aliens in the country, but some subset, some uncertain subset like the ones in ice detention . Toi think it is very fair say, mr. Chief justice, that the president has not made a determination yet because we dont know what is feasible about excluding all illegal aliens is recognized that some subset are going to be much stronger cases the exercises in discretion than other subsets. Thank you, general. Justice thomas . I would like you just to understandit as you what the respondent is arguing. Injurys the alleged redressed without including or enjoining the president . Because it is actually his decision that it seems they are ultimately concerned about. Fair pointthat is a but the court crossed that bridge in utah over a dissent by Justice Scalia because relief could not run against the president and the court held in utah and no one has asked that decision be overruled that it ,as fair that you can obviously there is no reason to believe that the president would not comply with this Court Judgment either now or any post apportionment contest. In utah, it was my understanding that was actually the census, wasnt it . Yes, it was a challenge to certain procedures being used with respect to the census. It was an ineffective sampling claim. Talking about are something separate from the census. Or am i mistaken . I think that is the other sides argument. They have seized on the fact that we have sometimes used the word census to refer to the counting and socalled look. The Census Bureau came up with a final number in the president essentially accepted that, but then sought to back out illegal aliens and i dont think that is right. The prejudicial memorandum makes clear that he was exercising his authority under franklin to determine the Apportionment Base after the counting. Positiontainly our that this is not something outside that stands apart from the census. Could you actually get the exact same information in a memo that is from the Commerce Department or the Census Bureau that says this is not the section 141 report, but here is what we think those numbers look like . The statutory scheme seems to contemplate that the president will rely on the secretarys report in sending his submission to congress. Franklin says he is entitled to reform the data that the secretary gives him, but i think it would be much more difficult question if he tried to act entirely outside of the process that the statute set out and obviously, he has just exercised his authority under franklin to tell the secretary that he wants to look at different sets of numbers so that he can make a decision about the Apportionment Base. Well, it just seems to me why theont understand president couldnt get the exact same advice outside of the context of a formal report. Numbers, and then make his decision. Beyond that, the chief justice asked you about the subcategories or subsets of illegal aliens. Could you give us your idea of what the president means generically by illegal alien . Who areans people present in this country unlawfully. A number ofs different subsets. We have named several of them in our brief, which i think are the clearest cases for the exercise, but there are a number of other subsets. The entire category is people who are present in this country in violation of federal law. Thank you. I was also concerned with what Justice Thomas brought up, and so to clear away some weeds from my mind, when you tell me where i missed this or if i am right. We are looking at statute 141. Takeys the secretary shall b says the tabulation of the population as required for the apportionment of representatives. Tabulation that shall be reported by the secretary of the president. That is the report we are concerned about. That is the tabulation we are concerned about. That, thebased on President Shall transmit a statement showing the whole number of persons for the purpose, again, of apportionment. We are interested in this report in this tabulation under 141b. Far, theight so president s order says i will tell you why i want that. I want that because it is our policy that illegal aliens will not be included in the census. It just says illegal aliens will not be included. And he asked for the reports of the get do that. Constitution forbids to, earth the statutes for bid him to subtract from the tabulation for purposes of this statement, if it forbids them to subtract those illegal aliens, or to the extent it does, the tabulation and the reports are the tabulation required for the apportionment of the senses and therefore you cannot ask the secretary for that report to contain that information. Right or wrong . And if wrong, why . I think i agree with you up until the very end. I think you correctly understand how the statutory provisions which were passed together in 1929 work, and i think its true that if the constitution or the statutes constrain the president s ability to back them out, that would mean that his statement to congress under 2aa would be unlawful, but i dont know that any of that is a constraint on his ability to simply request the information. It is not the information if it is unlawful that is required for the apportionment of the house of representatives. Because it is illegal. Not whether it is illegal or not , that is a different question. All we have on that is about 40 briefs that show the history, the language, the consequences, the purpose, and a bunch of either things other things argue against you, but you have arguments against that. If that side wins, i dont see how the information he has requested could be the information required for the apportionment of representatives. All i would say is i dont want to run together the procedural and substantive issues. I think what youre really getting at is a substantive issue of what the president s powers are here, not any of the procedural issues with respect to the memorandum. I agree with you that what is really at issue here is that substantive question that you are focused on. Well, maybe, but we are not suing the president. They are suing the secretary. And they are saying mr. Secretary, you cannot give to the president this requested information and also say that that piece of paper that you asd him is the tabulation required for the apportionment of representatives. It may something else, but it isnt that. That is what he has asked you to do, and that is what you are trying to do. If it is illegal. You cant do it. Thats right. That doesnt have anything to do with the procedural arguments about the use of the ministrant of records and whether this is somehow part of the census. That is all just a substantive claim and the president doesnt have the power to ask. Persons in 1820, they always counted. This has never happened before that you excluded illegal aliens. You know all those arguments. And i think they are fairly strong ones. What do you want to say . They are persons, arent they . Just very briefly, there are two different things. One is the historical practice which i hope i will be able to address later because i think franklin takes care of that. None of that goes specifically to the question of illegal aliens. Justice alito . I want to try to press you a little bit on some of the answers you gave to the chief justice because i find the posture of this case quite frustrating. It could be that we are dealing with a possibility that is quite important. It could be that this is much ado about very little. Depends on what the Census Bureau and the department of commerce are able to do. Fromjust take the numbers the District Court and the opinion last week, they said were 10. 5 Million People in this country who would be counted as being here illegally, but if you look at the smaller number, of those who are held in detention facilities, its Something Like 60,000. But the first number could easily change the apportionment of representatives. The second one is much more doubtful that it would change the apportionment of representative. There are only 31 days left in the year. To exclude the 10. 5 million seems to me a monumental task, to do that without sampling. Namese 300 million plus and determine individually from each of those people whether they are lawfully in the United States, and i would think he would be able to tell us whether that remains a realistic possibility at this point. With anyot provide us more information on what you provided in your answer to the chief justice, that basically, they are working on it . I can provide you with a little bit more. I dont know how satisfying it will be, but i think it is very unlikely that the bureau will be able to identify all or substantially all illegal aliens present in the country. Anything like the 10 or 11 million numbers that are flying around. The question is where it will fall in the middle, and we dont know. The reason we dont know is because it turns a great deal on the level of detail that we got in doing the enumerations and until we actually take the census masterfile, once they are all cleaned up and ready to go, and we actually run the models and the few weeks or whatever it is, we wont actually know how many people we pick up. The simple fact is that the experts dont know. We dont know if it will be 50,000 or 100,000. Out, ire my time runs have no expertise whatsoever in this area. How many people are in detention facilities are subject to final orders of removal. If we are going for the Bigger Picture and trying to identify everybody who is in this country dont see how they can provide a partial answer to that. If they were to say, well, weve done this for 200 million theres no way and apportionment can be based on that, is there . They are trying to get the categories of illegal aliens that you could identify based on the kind of records we have. So final orders of removal for instance, or people who have been removed who have found here again and have not been given any lawful status. It is not that we can pick up everyone, there will be some undetected illegal aliens who we are not even attempting to screen for. It is the categories that be shown by some sort of record that we have, and the question is just how feasible is it going to be to capture large numbers within those categories . Unfortunately, we dont know at this point. I have to say, it is a feature of the fact that appellees brought a preapportionment challenge on the basis of this injury that was always going to cease in the past. Justice sotomayor . Yes. And read thend memo, the president s memo, he says he intends to exclude every alien who does not have permission to be here in the United States. It, he limits this to where is feasible to identify that. Is, ifht now, his policy i can identify them, no matter what the reason is for them being an illegal alien, i am going to exclude them from the census. On Justice Alitos question, arent those the very categories that you already say that weve been told there have been some of them who are in ice , and then my january 11, the Census Bureau says that it intends to provide the president with the information necessary to fully implement the president ial memorandum. Im quoting the Census Bureau. If i take that at its face, it means that the numbers are not going to be 60,000. The number is substantially large. I think that was Justice Alitos point. Which is, the Census Bureau has been collecting data about undocumented immigrants from other agencies for over a year. I dont see how you can represent to us that you dont think it is going to be a substantial number. Three quick points. First, i dont think that is actually an accurate statement of the memorandum. You are certainly right that is the policy, but there are two builtin limitations. One is whether it is feasible and the second is whether the president decides he has the legal discretion to exclude all of these subset and those might have different legal analysis depending on the kind of ties they have where the type of status they have. Im a little bit questioning of that for the following reason. The Census Bureau already defines what residency is. Where you are living. Of april 1, 2020. And whether you are a prison, in or held, the 57 of the people in detention will eventually be released to the United States. So i am not sure how you can immigrantny class of that isnt living here in a traditional sense. Thisis is where they are, is where they were on april 1, and where they intend to stay if they dont find anywhere to go. Based on my understanding from the Census Bureau, there is a real prospect that the numbers will not affect the apportionment. I amsaid earlier, perfectly happy if the Court Disagrees with us. Because we think on the merits, at least some of the illegal aliens captured by the president ial memorandum dont satisfy the test for inhabitants he. Inhabitancy. Saying, i think anyone without papers should not be counted. Now you are saying well, maybe the president will limit that subcategory. But thats not what hes asking for. Hes asking for all of those illegal aliens to be identified. And wouldnt heller defeat this argument that we shouldnt rule . In heller, we knew that there were certain people who states could legitimately bar from possessing their homes. But we didnt say we are not going to declare with the general law is. So why should we do the same thing here . You cant exclude illegal aliens because they are undocumented. The court would have to conclude in order to say that as the court here did, that the president doesnt have the discretion to exclude any illegal aliens from the Apportionment Base, even some subsets because the injunction here is an attempt forgetting any of the information he needs to exclude any subset. And he did make clear that although as a moderate policy wanted to exclude the entire set, that he had not yet made a judgment on whether he had the legal discretion to do that for the entire class. I guess i would like to keep going with the line of questioning that the chief justice and Justice Alito talked about. As i read you, you are saying yes, there is this small category that seems pretty feasible. That is just tens of thousands of people. How about a few others . As i understand it, there are almost 200,000 persons subject to final orders of removal. With the bureau be able to report on those . It is working very hard to try to report on that subset, yes. There are 700,000 Daca Recipients. Will the bureau be able to report on those . It is working on that, too. We cant be certain at this point and we dont know what the president will decide to do with respect to that set. Orobviously, you have papers kinds of records on those people. I would think that sounds pretty feasible to me. Is, imagine,oblem we have the administrative records, what we dont know if the number that participated in the census either through questionnaires or other processes, that provided sufficient detail to do a matching. That is the problem here. 3. 2 million nondetained individuals and removal proceedings. We havethe same thing, to have reliable information on them and that information has to match up with what they provided to the senses. So what im getting from you is we can get very easily to 4 million or 5 Million People who you have extensive administrative records on, and you are saying there is a matching problem. I guess this goes back to Justice Alitos question. It seems to meet you either know whether you can do it or not. Why the uncertainty on this . Because until you actually compare the one set against the other said, you just dont know how many hits you will get. I would love to move to the merits because if the Court Decides we are wrong and that this really is teed up, even though there may not be in effect on apportionment, i think theyre a good reason that we have not yet talked about why the entire category of illegal aliens should not be thought to qualify under the inhabitantcy test. Can i ask you, how would a postapportionment challenge of the kind talked about earlier work . It seems to me that the time period is very crunched. States have to do their own redistricting. How exactly does that work . What is the timeline on it . Judicial courts have already decided the merits. I think this is going to move even more quickly than this round of litigation which obviously took a few months. You bring the case, you get the order to the secretary to fix the report, and then the executive branch would have the option of seeking review. Fairly quickly, when with the end date be . I couldnt say because it depends on when the report gets to the president , how quickly the District Courts enter a , that ind the party would think a matter of a few months. Do you think given that you are uncertain when the report will go to the president , this goes back to the first question, that there was something to be said for not following the expedited procedures of new assets to follow and just sort of keeping this around in a normal way and you could tell us whether expedition was necessary when you knew . I think the problem is this is all fairly fastmoving and if the court does not enter some kind of relief, we would face a prospect that the secretary would not be able to send the report to the president and the president wouldnt be able to turn around and send a report to congress. Is a lot of controversy between the parties in that sense, which is we want to be able to have the president exercises power and the injunction currently blocks us from doing that. It is just no longer founded on some injury to the appellees that is substantial. I like to just press you a little bit further on the practical difficulties and to dohood of being able the matching process with respect to various categories. It seems like one Common Ground is the 10,000 or whatever number apparently in ice detention. Beyond that, can you give us any sense of the difficulties or likelihoods . I cant. The bureau is working very hard but as i say, until they actually do the comparison, we just wont know how many identifications we are able to make and whether that stands to affect the apportionment. So is it a reasonable prospect to think it would be limited to the number of persons currently in ice detention . I think that is possible but it is also very possible they would be able to do more. We dont know at this point. I wish i could provide the court with more certainty, i cant. Thats why we think that the court should vacate the judgment and not get into this. Would Court Disagrees, i love the opportunity to turn to the merit and talk about why i think they cant satisfy either half of the usual resident test, the usual residency or the usual, subtle requirement. How about a question in an entirely different direction. Your colleagues on the other to theinted a footnote federal reports elimination and sunset act in the 1990s. Which looks like it may have well repealed section two. Are we arguing over the meaning of the statute that doesnt exist . I had hoped to get some response from the government on that but did not see any. Perhaps i missed it. What is the governments view about the status of section two . New york suggests maybe it is repealed, but to the extent the government wishes to comply, theher response is that only thing repealed were reports, and this is a statement. Do you have any views on any of that . Is not anr view, it annual, semiannual or other why inc report which is 2001 and 2011, the executive statement. Ed a im not aware if we even ever briefed it. There were various things on the court list that i think clearly do not qualify as the type of. Rt covered by me it is not a periodic report. Statute in the reports the president continues, the decennial census report, section 2a, right right there listed . Gen. Wall so, sorry, just to be more clear, we dont think the language picked up everything in the clerks list, because there were things on the clerks list that wouldnt qualify. It only picked up things on the clerks list that said that qualify as an annual, semiannual, or other periodic report. We dont Justice Gorsuch and periodic doesnt include every 10 years . Gen. Wall we dont think Justice Gorsuch is that the is that the governments view . Gen. Wall we dont think the other periodic report picks up the statement which theres a deadline under this statute, but its not as if it has to go over at some set period or on a particular date every time. So we dont think that statement qualifies. Justice gorsuch okay. If i were to disagree with you and think that every 10 years does appear to be a regular periodic report specified by on a list, what then . Gen. Wall i suppose thered have to be supplemental briefing from the parties, Justice Gorsuch. Its not jurisdictional, and nobodys raised or addressed this. Justice gorsuch all right. All right. Thank you, mr. Wall. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh thank you, chief justice. And good morning, general wall. You forcefully argue that theres too much uncertainty, that the dispute will become a concrete article iii controversy only after the president transmits the statement. But i want to button up some things on that to make sure were on the same page and follow up a bit on what Justice Kagan was asking you. First of all, youre not saying, as to judicial review, not now, not ever. Youre just saying not now, as i understand it. But, as Justice Breyer indicated, the posture of this will change after the president transmits the statement, and theres a question about injunctive relief against the president. So i think youre saying that we can assume, as the court has before, that the president would comply by a declaratory judgment requiring him to transmit calculations that include those noncitizens living living unlawfully within the country if we were to issue such an order after the president transmits the statement. Is that accurate . Gen. Wall yes. Justice kavanaugh your argument for waiting is based on uncertainty uncertainty, again, as Justice Kagan and the chief justice and Justice Alito were asking about the numbers, but one thing that was in the ddc opinion of judge katsas, as joined by judge friedrich, was that it will be not possible to exclude all noncitizens living in unlawfully in the country, because that would require the use of sampling, is what the opinion said, and that the memorandum, the president ial memorandum, rules out the possibility of using an unlawful method. Is that accurate, or whats your response to that . Gen. Wall were not sampling. This is what i was trying to say to Justice Kagan earlier. Were taking the records from the administrative agencies, and were taking the data given by individuals with respect to the census, and were comparing them. Were literally trying to individually identify people who are present in the United States in violation of federal law. And because we are not sampling and we are doing this fairly cumbersome matching process, its just not clear what results were going to get or whether its going to affect the apportionment. Justice kavanaugh well, is it possible to exclude is it possible to get the information to exclude all noncitizens living unlawfully in the country, or is it possible only to get information as to subsets at this point . You may not know the answer to that. Gen. Wall no, the latter. It is only possible the records will only cover particular subsets. Justice kavanaugh okay. So its not possible to exclude all noncitizens living unlawfully in the country, correct . Gen. Wall no. If you took somebody who crossed the border illegally, was undetected, and did not participate in the census, that person might not be found in any administrative record, and they wouldnt be on the other side of the ledger either, because they didnt participate in the census. That person just would not be captured by this process, not even arguably. Justice kavanaugh and then, on the question of ripeness or standing, our doctrine, as i see it, parts of the ripeness inquiry are really similar, if not identical, to parts of the standing inquiry, if you look at the phrasing in cases like ohio forestry on ripeness and cases like susan b. Anthony on standing. The key point, i think, is that the memorandum imposes no obligations on the plaintiffs to do anything at that at this point, unlike, for example, a typical Agency Regulation that might, say, impose some duties or requirements on the plaintiffs and we allow preenforcement challenges. Weve called that lack of ripeness. Weve called that no standing. Do you think it matters which we call it, and do you agree that the two inquiries overlap on that particular kind of analysis . Gen. Wall yes, there is substantial overlap. We framed it as a constitutional matter, because we dont think they satisfy the constitutional minima, but if you thought they got the toe over that line, then youd get the same analysis, i think, as the as judges katsas and friedrich did as a matter of prudential ripeness. So i agree that there is a lot of overlap. And, obviously, under steel co. And senken, you can do prudential ripeness before the merits, because its a threshold doctrine. So nothing requires the court to do article iii rather than to do it as a prudential matter. Justice kavanaugh thank you, general. Chief Justice Roberts Justice Barrett. Justice barrett good morning, general wall. Im going to let you talk about the merits for a minute here. You know, as Justice Breyer said, a lot of the historical evidence and longstanding practice really cuts against your position. And, you know, theres evidence that, in the founding era, an inhabitant was a dweller who lives or resides in a place. You do have this vattel quote that defines an inhabitant as a distinguished from a citizen as a stranger whos permitted to settle and stay in the country. Do you think that vattel quote is your best evidence . Gen. Wall well, if you look only at the founding, i think the vattel quote is good. I think madison in federalist 42, when he talks about a state allowing you to become an inhabitant, is fairly powerful. And what id say is, look, there isnt a lot of attention given to the specific question of illegal aliens for the first half of the country, for obvious reasons, but the court does have to deal with the residence or dwelling question in other statutes. And the answer it consistently comes back with is, if youve entered illegally, you are not treated as if youre dwelling or residing here. Youre treated as if youre stopped at the border. And the other side doesnt really have any answer to why those cases shouldnt equally apply here and say, look, if the test is usual or settled resident, youre not thought to be a resident, and even if you are, theres nothing usual or settled about your residence if your presence is violating federal law and the sovereign hasnt agreed to let you stay. Justice barrett but if an undocumented person has been in the country for, say, 20 years, you know, even if illegally, as you say, why would some person not have a such a person not have a settled residence here . Gen. Wall take longterm embassy personnel, so somebody whos worked at an embassy for 15 years or 20 years, Justice Barrett. That person certainly has ties to the community, and yet, we have excluded them in some past censuses, because theyre not the sort of ties, just as with illegal aliens, that amount to residence or dwelling or what franklin calls allegiance or an enduring tie. And so, too, federal personnel overseas. Theyre not residing here. They may spend years at a time abroad, but we still think they have the kind of tie that counts here. And so i think im not disputing at all that illegal aliens form ties to the community in the sense youre talking about. But theyre not the sort of ties that are sufficient to qualify you within the Apportionment Base, because they dont count for residence or dwelling within the meaning of these federal statutes. Justice barrett but you concede that illegal aliens have never been excluded, as a category, from the census . Gen. Wall well, yes, we have taken account of alienage in certain ways before, but, yes, and thats the best argument on the other side. There is a historical practice. And if we didnt have franklin, it could be tougher for us. But we know from franklin that the fact that youve got a fairly unbroken practice doesnt necessarily mean its constitutionally compelled. They need some evidence that that has to be the rule as a constitutional or statutory matter, and thats what they dont have. They have a bunch of historical evidence that the founders and the framers of the fourteenth amendment didnt want to limit it to citizens or voters, completely agreed, with all of that. But what they dont have is any evidence that they specifically wanted to include illegal aliens, because they thought even if you came here in violation of the law, you were nevertheless an inhabitant. Thats the very question that, in other contexts, the court has answered in the negative by saying youre not a resident. Justice barrett so its just been an unexercised discretion all along they could have been excluded from the census, and the fact they had not been excluded before doesnt mean the president cant make the choice to do so now . Gen. Wall well, so, too, in franklin, Justice Barrett, but i guess id qualify it a little bit. For the first half of the nations history, the question doesnt come up, because you dont have federal immigration restrictions. And for the second much of the second half, it doesnt matter nearly as much as it matters now. So, look, ill certainly grant that no president has made this judgment before. No president s ever focused on it before. But i think, in order to say, as in franklin, that the president cant do this, he cant include there, it was federal overseas personnel, even though they hadnt been included for, you know, a host of censuses. They need to point to something in the text or the history that clearly mandates that they be included in the Apportionment Base. And thats every illegal alien. Its not the only only the ones you were talking about that have ties to the community. Its somebody whos apprehended at the border and in an i. C. E. Detention facility, sometimes only for a day or two, before being sent back to mexico or the northern triangle chief Justice Roberts a minute to wrap up, general wall. Gen. Wall thank you, mr. Chief justice. So, just as i was saying earlier, we think that there are a handful of unknowns here what will be feasible for the bureau to do, whether the president will decide to exclude all of the subsets that are feasible. The memorandum clearly indicates that the president hasnt made that legal judgment. Its made a policy call but not the legal judgment. And the effect on apportionment. And as i said to Justice Kavanaugh, we dont think it matters whether the court labels that under article iii or prudential ripeness, but were happy for the court to disagree and go to the merits, because there is a fairly small window of time here for the court to decide the merits on the merits. They cant satisfy either half of the test. Theyre not residents, and theres nothing settled about their residence. And theyve not offered any coherent theory of Political Representation why all illegal aliens should be included in the Apportionment Base. For those reasons, if the court reaches the merits, we think it should reverse and uphold the memorandum. Chief Justice Roberts thank you, general wall. General underwood. Gen. Underwood mr. Chief justice, and may it please the court the constitution and laws require the seats in the house be apportioned according to the number of persons in each state. The president s new policy of refusing to count people who are not in a lawful immigration status is flatly inconsistent with that command. Our laws reflect the deliberate choice not to base apportionment on citizenship, voter eligibility, or any other legal status but instead to count the number of People Living in a state. That has always included people who are ineligible to vote, including noncitizens, and it has also included people who were present in violation of law. The memorandum treats counting people as a reward to be withheld from states that house undocumented immigrants. But our law views counting people for apportionment as finding fact, not giving and withholding rewards. The memorandum pretends that, if, under the law, a person should not be here, then the person is not here. The government can do many things to induce undocumented immigrants to leave, but it cannot declare them to be gone when, in fact, theyre here and likely to remain. My friend says the policy must be upheld because some undocumented immigrants could be excluded from the count. Whether they could is disputed, but, in any case, that would not support this policy, which applies to all undocumented immigrants, and refuses to count them solely on the basis of undocumented status. As this court recognized in shelby county, an unlawful policy cant be saved by the possibility that a lawful policy could be written. The question here is whether a blanket policy of not counting undocumented immigrants is lawful, and its not because and its not, because undocumented status alone doesnt tell us where a person usually resides. This policy ignores the undisputed fact that millions of undocumented immigrants have lived here for decades and have substantial Community Ties. Their undocumented status doesnt erase their presence. Chief Justice Roberts general underwood, could you tell me precisely what the relief is that you seek . An order from the court saying what . Gen. Underwood well, an affirmance of the injunction below, which was to declare the policy invalid, in violation of law and the constitution as well, but the statute would do and an injunction against transmitting the information about undocumented persons as part of the report on which chief Justice Roberts well, thats the precise issue i want to focus on. It seems to me that youre asking, really, for a gag order on the secretary of commerce concerning his communications to the president. Gen. Underwood no chief Justice Roberts lets suppose that the secretary conducts the census and prepares the tabulation exactly as you would have it and puts that in an envelope to send to the president , but it also, in a separate envelope, puts information on the number of illegal aliens, and he sends both of those envelopes to the president. Is that fine with you . Gen. Underwood that does yes, that does not violate the injunction. There is no gag order to be placed on the secretary of commerce. He can be asked for and respond with all sorts of information. But the 141 the particular statements and transmittals that are operative, they arent just the transmission of information. They operate as steps in the apportionment. Chief Justice Roberts well, but then the president is gen. Underwood those the president cannot chief Justice Roberts the president , i would assume, is then free to report to the Congress Information for the apportionment, and he can its okay, he can do the math. He can take what the census that the secretary has transmitted, as you would have it, and subtract the number of illegal aliens or subcategories and use that information, cant he . Gen. Underwood well, we are now at the point where, if you issued a declaratory judgment saying that that policy is unlawful and my friend on the other side has said the president would comply with such a declaratory judgment then the answer is, well, he would have the information, and, in principle, he could use it. He couldnt issue a report to congress that was in violation of the constitution or law. Chief Justice Roberts thank you, general. Justice thomas. Justice thomas thank you, mr. Chief justice. General underwood, im a little confused. Did i understand you to say that if the Census Bureau sent the information in a separate envelope, that would be fine, at least if it was labeled not the section 141 report . Gen. Underwood it would not yes, it would not violate the law. It would be a transmission of information. Justice thomas so what does that accomplish . Because i thought your major concern is the use of that information by the president. Gen. Underwood thats correct, the concern is that. And in the course of directing the secretary not to transmit this as part of a report, this court would presumably also declare that the use of it was unlawful without enjoining the president , because there is that problem about injunctions against the president. Justice thomas so im trying to so i your argument is that if its sent separately, it cant be used . Gen. Underwood in the apportionment, thats correct. It might be usable for many other things, but not as part of the apportionment. Justice thomas thank you. Chief Justice Roberts Justice Breyer. Justice breyer thank you. General underwood, i think, are there not, many statutes which divide funds among the states on the basis of population, and then they say Something Like, quote, as shown by the most recent decennial census, and does that tie that to the 141 b report . I think it does. Do you know any are there not many instances where it does . Gen. Underwood there are many instances where the distribution of funds is talked has to be derived from the census. I suppose we have an argument about whether we would argue that if the information is used in the census and in the report that is sent to congress, it also will have an effect on the distribution of funds. If the information is sent separately, then Justice Breyer thats not what im thinking of. Im thinking of, suppose this 141 b report has both the number of illegal immigrants, the illegal aliens, and also the total census. Okay. What do you use . Gen. Underwood i dont think it can have both. The Justice Breyer i know. I didnt think that was your theory. I thought thats the governments theory. Gen. Underwood right. Right. Justice breyer so what happens, under their theory . Gen. Underwood well, i dont know what happens under their theory. They have sometimes said that a transmission of two sets of numbers is all part of the 141 b report, and they have sometimes said its separate. And i dont know Justice Breyer okay. If we both dont know gen. Underwood what were to do Justice Breyer let us go to a different question, which is id like to know what you have to say about franklin versus massachusetts. Gen. Underwood well, franklin massachusetts, of course, said that the secretary has and the president have some discretion, but its not unlimited discretion. Franklin recognized usual residents as the test and then treated overseas government workers like other situations recognized at the founding, people absent from the state where they have a residence and continuing ties and intend to return. They think of themselves as away from home. And franklin recognized that that situation was suitable for the exercise of executive discretion. There is no support in that chief Justice Roberts Justice Alito. Justice alito thank you. I have two questions that are important to me. I hope im going to be able to squeeze them both in in my time. The first concerns your answer that it would be fine for the secretary of commerce to submit numbers that exclude illegal aliens if it was done in a separate document. Once you concede that, unless you are asking us to overrule what franklin said about the president s directing the secretary to reform the census, then i dont really understand where your argument is going. Suppose the suppose the tables were turned. Suppose the president wanted to count every Single Person who was in the United States on census day, but the secretary of commerce took it upon himself to give the president numbers that excluded every illegal alien. Do you think the president would then be unable to direct the secretary of commerce to reform those numbers and make them comply with the theory that the president accept it . Gen. Underwood the president would, under franklin, have the ability to direct a reformation of the census. There would be the question the same question well, it would be a different question. Theres always the question whether that reformation is constitutional or not. Justice alito yeah. Well, that goes to the substance of the issue, which i do want to get to, but if the secretary once you concede that two documents are possible and that the president can ask the secretary to reform the numbers that are sent to him, i dont understand why there isnt a why the situation where both sets of figures are submitted in a single document is any different . It seems like a totally meaningless formality. Gen. Underwood its not a meaningless formality in the sense that this is the moment in the process when Judicial Intervention can operate. The problem arises because once the president because because of the reluctance of the court to enjoin the president. So the injunction operates against the secretary and what he can transmit. And then the president and in telling the secretary what he can put in the 141 report, the court will also be telling the president what is lawful to use in his report to congress. Chief Justice Roberts Justice Sotomayor. Justice alito if i can if i can move on to my second point. I want to give you six categories of people and ask you to answer yes or no, to the extent you can, whether you think each of these people in each of these categories must be counted for apportionment purposes. First category is a foreign diplomat who is posted here for three years . Gen. Underwood no, because hes for several reasons. Because hes Justice Alito okay. Well, hes a no, all right. A tourist whos here on a valid visa . Gen. Underwood no. Justice alito a tourist who overstays her visa and is, therefore, here illegally . Gen. Underwood well, that person is now outside the realm of we expect them to leave, and so that person is a resident like any other undocumented person. Chief Justice Roberts Justice Sotomayor. Justice alito chief chief Justice Roberts Justice Sotomayor. Justice sotomayor general, i see this as being very similar to franklin, because i think youre arguing and i think the solicitor general agreed that the president has to use only the numbers that are given to him by the secretary. If the secretary gives him illegal numbers to exclude, then he cant use an outside report to exclude those people from the apportionment. Is that correct . Gen. Underwood cannot use he cannot do an illegal report, yes. And Justice Sotomayor he cant use a separate report. The tabulation has to provide him with the numbers that he uses, correct . Gen. Underwood correct. Justice sotomayor and so, if it is illegal for him to exclude illegal aliens sorry for for that then we can do exactly what we said could be done previously, which is to order the secretary not to give the president illegal numbers, correct . Gen. Underwood correct. Justice sotomayor so thats your point, which is, if hes going to tabulate and exclude illegal aliens, we have to decide, as a matter of law, whether the word persons, as used in the statute and constitution, who live here permits the exclusion of illegal aliens, correct . Thats the legal question . Gen. Underwood correct. Justice sotomayor if he later decides that he wants a particular category of people to be excluded who are illegal aliens, then he gives a memo to the census secretary earlier that says, this category, i think, should not be here for these reasons. And if the secretary says, ill give you those numbers, then we would have an identical franklin decision, where they could come in and sue and say to the secretary, no, you shouldnt permit those illegal aliens, or yes, you should, whatever the answer is, correct . Gen. Underwood agreed, yes. Justice sotomayor and thats whats missing here, which is the president is asking to exclude to give numbers on the category of illegal aliens that of any kind and some of those numbers legitimately cannot be included. Thats your argument, correct . Gen. Underwood yes. Chief Justice Roberts Justice Kagan. Justice kagan general underwood, if i could take you back to the standing question. This is the way i understood what came out of general walls minutes. You the government has tons of records on tons of people. I mean, were not just talking about i. C. E. Detainees. By the time you think about Daca Recipients and people in removal proceedings and a number of other categories, you easily get over 4 Million People. But general wall says that thats not the problem. The problem is a matching problem. And, essentially, the department has not yet sort of gone through this process of trying to match those numbers with the answers to the census questionnaire. Now, i dont really quite understand how that process works, so im wondering, if you do, if you can tell me whether you think its credible that they, the Census Bureau, at this point, would not know approximately how many people theyll be able to exclude, of all the people that they have administrative records on. And i guess the second question would be, is that what we should be focused on, or is that an unimportant question . Gen. Underwood well, i am not a master of the technology here. I do know that there is a process by which matching occurs, and i do not know i cannot opine on how successful they will be. I can only say that what we have is a lot of evidence that they have a lot of numbers available, that they are working as hard as they can to do as much of this as they can, that subtracting just some of that 4 million or so from the count would be enough to take a seat away from one or more states, and that speculation, at this point what we have on the side of uncertainty is speculation. We have repeated representations from the Census Bureau and the department of justice that they are theyve been working on this since july 2019, and theyre now starting to tell us about the categories that they will be able to identify and match, and that, if there turns out to be a problem, there isnt enough here to be the basis for any judicial action. Its speculation that they wont be able to do it, at this point. So it seems to me that it would make sense it might make sense for this court to wait a couple of weeks and find out whether theres more information that would shed some light on this question. Chief Justice Roberts Justice Gorsuch. Justice kagan thank you, general. Justice gorsuch good morning, ms. Underwood. If it is a matter of speculation whether theyre going to be able to include or exclude, why isnt that a standing problem or a ripeness problem now, if we must rule now . Gen. Underwood because its a substantial Justice Gorsuch as i understand it, they cant use statistical sampling, so theyre going to have to match their detention records or their docket records against the actual enumeration in the census. And, at the present, they tell us that they might not be able to do more than maybe the aliens in i. C. E. Detention facilities, which would be in the tens of thousands and perhaps not affect any apportionment at all. Gen. Underwood well, i think that theyre not saying theyre only going to be able to do i. C. E. Detention. Theyre saying that thats a group they already know theyll be able to do and that theyre working feverishly to do the same for other groups. And we know, from the last round of census litigation, that they have the ability to do matching. Now i cant speak to the technology of it, but they were quite confident that they were going to be able to do matching. So it seems to me Justice Gorsuch but ms. Underwood, i guess my question is, you know, you concede that its speculative as to how much theyre going to be able to do. And once weve once were in that world, then its speculative whether theres going to be any effect on the apportionment. And in that world, we have a standing problem, dont we . Gen. Underwood well, i think thats not quite the world were in. I think we have a substantial risk of injury. But all the evidence, until very recently, was that they were going to be able to do to implement the president ial memorandum and that they are now, just now, saying that theyre not sure how fully theyre going to be able to do it. So i think thats a substantial risk of injury sufficient for article iii standing, and i think there could be, as a matter of prudence, some interest in waiting to get more information, since they seem to also be saying there will be more information very soon. But i think Justice Gorsuch thank you. Gen. Underwood we have article iii standing. We have a substantial risk. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh thank you, chief justice. Good morning and welcome, general underwood. As Justice Barretts questioning illuminated, i think, you have advanced forceful constitutional and statutory arguments on the merits of a categorical exclusion of all unlawful noncitizens. But im not sure thats going to be the dispute, and so i want to explore that. If we said now, as you want us to say, that the secretary and the president cannot exclude all noncitizens living here unlawfully, as we say that, and then the president excludes not all but some subsets, then well be right back here with litigation. Correct . Gen. Underwood well, i think that what you would have is you would have invalidated this policy, and he couldnt act and the secretary couldnt act pursuant to this policy Justice Kavanaugh but couldnt im sorry to interrupt couldnt he then substitute a new policy consistent with the decision on all by saying were going to exclude some subsets, and then there will be litigation on that and well be right back here, which is gen. Underwood perhaps. Perhaps. I mean, now were now were speculating more about what he might do. I think that Justice Kavanaugh well, i think its im sorry to interrupt but i think the solicitor general has indicated its going to be very difficult, if not impossible, to exclude all. And i guess im wondering, then it seems like part of this is and youve acknowledged this forthrightly is that the difficulty of an injunction against the president if we wait to postapportionment but or posttransmission but the president , we have assumed in the past, would comply with a declaratory judgment. Weve said that. The solicitor general confirmed that today. Does that eliminate the problem that has forced or encouraged you to bring this litigation now . Gen. Underwood well, it could mitigate it, but even i mean, a declaratory judgment action has to be addressed to somebody who can act. I dont think youll we would you would issue a declaratory judgment action against the president. And if the secretary has already done everything hes going to do, then its not clear exactly who the appropriate recipient of that declaration is. Chief Justice Roberts Justice Barrett. Justice barrett good morning. I have one question thats a followup to Justice Kavanaughs question. And that has to do with the feasibility of counting all of these categories of illegal aliens. If, as general wall said, the president and the secretary of commerce are only able to identify certain categories, and, as Justice Kavanaugh said, if that means that there would be litigation on a casebycase basis about whether such categories should be in or out, doesnt that cut in favor of waiting, that maybe theres no injury here because were not really sure what the contours of the decision would be . Gen. Underwood well, i think i should just object to the idea that the categories are so small that they wont make a difference and that they would be litigated onebyone. I think that the policy that the president articulated is as many as possible. The memorandum while mr. Wall said he was going to exercise, the president would exercise discretion after the information came in, the memo says to the maximum extent of the president s discretion. So the policy is clearly not to identify subcategories. Its to do as much as possible. And the categories that are available are just going to be whatever they can find. And i think this court can speak to that policy now. Is it likely that they would come back with other new policies . Perhaps. I dont think that would always be true. I dont think thats a reason not to decide the question thats here now. Justice barrett but what if what if we say that he cannot categorically exclude all illegal aliens . He says, fine, im not going to do that. Im going to count everyone who is in an i. C. E. Detention facility, everyone whos in removal proceedings, and maybe say all Daca Recipients. But i agree, you know, i have reasons for thinking each of these dont satisfy the inhabitancy requirement. Wouldnt you just be back litigating those specific issues . Gen. Underwood yes, i think we would, yes. Justice barrett okay. Thank you. My times up. Chief Justice Roberts a minute to wrap up, general underwood. Gen. Underwood the constitution and laws provide that house seats should be allocated on the basis of total population. The framers wanted a system that could not easily be manipulated. So they decided to count just the persons living in each state. The policy here would, for the first time in this nations history, reject that choice. People who live in a state without lawful immigration status still live there. They are not invisible. And, like other residents, voting and nonvoting, their presence requires attention from the government, and the need for representatives to give that attention. That is the rationale for one rationale for including them. The decision to refuse to count them has produced a live controversy from the moment it was announced to now. This court should resolve the controversy and reject a policy that would refuse to count millions of people who have lived here for decades, have jobs, mortgages, families, and Community Ties and reside in a state under any reasonable interpretation of those words. Chief Justice Roberts thank you, general. Mr. Ho. Mr. Ho mr. Chief justice and may it please the court for 230 years, dating to the founding, states have always held seats in the house according to the number of persons in each state without regard to immigration status. Now, with respect to standing, the test under susan b. Anthony is whether there is a substantial risk of injury. And past experience shows that its easy to risk changing the apportionment. In utah v. Evans, according to the parties Summary Judgment briefs, the practice of imputation added a total of 32,000 people in North Carolina and 5,000 in utah. And that difference was enough to shift one seat from the latter to the former. We know that the numbers the numbers here are much bigger. As Justice Kagan pointed out, the government has information on millions of undocumented immigrants. And one and a half years ago, when the president issued an executive order in july of 2019, he stated that the government could already match citizenship records for 90 of the population. So theres substantial risk of injury now, and it will be better to resolve this issue now rather than in six months during the redistricting process, which could be disruptive. Chief Justice Roberts mr. Ho, what is the problem with postapportionment litigation . Right now, as the questions have shown, we dont know what the secretary is going to do. We dont know what the president is going to do. We dont know how many aliens will be excluded. We dont know what the effect of that would be on apportionment. All these questions would be resolved if we wait until the apportionment takes place. So why arent we better advised to do that . Mr. Ho well, i think waiting a couple of weeks wouldnt be very disruptive, mr. Chief justice, but the record establishes that there is at least a substantial risk of a shift in the apportionment now, which is enough for standing. And if the question is should the court wait now or send this back for another round of expedited proceedings, then there are many good reasons to decide this case now. The government argued that waiting would deprive the nation of prompt notice of reapportionment as required by statute, and that it could be very disruptive to redistricting processes in a number of states. In texas chief Justice Roberts well, waiting a couple of weeks isnt going to give us much more information than we have now. Waiting until apportionment would give us all that information that we we dont have. Mr. Ho im sorry, mr. Chief justice. I did mean waiting the four weeks or so, maybe four and a half or five weeks, depending upon when the apportionment report is delivered, to see what those numbers look like. Id agree that that short of a wait wouldnt be disruptive. But if were talking about sending this case back for additional proceedings in the District Court, another expedited appeal, and doing this all over again over a period of several months, then that would be, i think, disruptive to ongoing redistricting processes. In fact, the chief Justice Roberts thank you, counsel. Justice thomas. Justice thomas yes, thank you, mr. Chief justice. Mr. Ho, if the Additional Information would be beneficial in a few weeks, wouldnt it be beneficial to actually resolving this case . As the questioning seems seems to suggest, theres some difficulty in assessing exactly what information will be available and what that information will be. Mr. Ho well, Justice Thomas, the challenge here is to a policy that broadly mandates the exclusion of undocumented immigrants to the maximum extent under law. And the governments position is that, under law, all undocumented immigrants may be excluded. As solicitor general wall noted, their view is that the entire category of undocumented immigrants are not inhabitants. So the court is presented with a facial challenge to a categorical policy. The government has been free to issue a narrower memorandum of excluding one or more subgroups as purported nonresidents, rather than taking aim at undocumented immigrants writ large, and it hasnt done that. And its the categorical policy thats at issue, and its unlawful. Justice thomas well, it i think it would be the i think your argument would be that the implementation of a categorical policy would be unlawful, but what im hearing is that we dont exactly know which category or subcategory will be excluded. Mr. Ho well, as i take solicitor general walls representations here, its that the government will exclude to the maximum extent thats feasible and thats permitted under law, and the governments view is that the entire category of undocumented immigrants may be excluded under law. Even if we take the governments three proposed subcategories of undocumented immigrants who are supposedly per se excludable, those categories are quite heterogeneous. Theyre overbroad. I dont think that they are all categorically noninhabitant. Justice thomas thank you. Chief Justice Roberts Justice Breyer. Justice breyer thank you. What do you think about excluding the lawfulness of excluding just the 50,000 or so who are in i. C. E. Centers or under final order to remove . Mr. Ho well, Justice Breyer, the population of people in i. C. E. Detention, as i noted, is quite heterogeneous. Even under the governments definition of inhabitant, many of those people would qualify. You can be a lawful permanent resident and be in i. C. E. Detention. Even a person who is, say, detained at the border, that person can apply for asylum. In some years, more than half of asylum claims Justice Breyer but suppose you would change it slightly and say we are going to exclude, not count, people who are under a legal order to remove. Mr. Ho well, people under final orders of removal can actually reside in the country for quite a long time. They can petition for review to courts of appeal. They can seek other forms of relief. They can challenge their orders collaterally. Some are never actually deported, even after going through all of those processes, because their home country Justice Breyer all right. So what line would you draw between those whom they could legally deport not count and those whom they cant . Mr. Ho well, the constitutional standard, as this court explained in franklin, is usual residence. And the plain meaning of that term turns on whether or not someone commonly resides in the United States. It doesnt turn on their lawful immigration status. That term, usual residence, was defined, at the founding, as where a person commonly lives or sleeps. Thats in both the johnson and the bailey dictionaries that we cite. And if you look at the dictionary that the government relies, websters 1828, which they rely on for the definition of inhabitant, it defines residence as distinct from nationality, offering the example of the residence of an american in france or italy for a year. So residence doesnt admit of exclusions on the basis of lawful immigration status. It turns on whether a persons physical presence is transient or not. Chief Justice Roberts Justice Alito. Justice alito im going to try to see if i can get you to answer Justice Breyers question. Last term, we had a case involving an alien, mr. Thuraissigiam, who crossed the border unlawfully and was almost immediately apprehended and then placed in detention. Would he have to be counted . Mr. Ho well, under the bureaus current residence rules, he would. But i just would note that the Courts Holding in thuraissigiam, you know, was about whether someone, you know, had entered for purposes of Justice Alito no, i understand that. So it is your position that every Single Person who is in every single alien who is in the United States on census day must be counted . Mr. Ho i would say that every person who is an alien in the United States under on census day is subject to the same residence requirements as anyone else who is a person inside of a state. If a United States citizen is usually a resident abroad and is temporarily visiting the country on april 1 on census day to see family or Something Like that, that person is not counted in the census. I think the same Justice Alito well, youre saying that for each of these people, there has to be a very specific, a very factspecific determination about whether they whether they are a resident or not . Is that administrable at all . Mr. Ho well, the rules that were administered by the federal marshals in the first census in 1790, Justice Alito, were to ask whether or not a person usually resides at the dwelling thats being visited. If not, where do they actually usually reside . And if the person has no stable residence, to count them simply where theyre found on april 1. Thats been the practice since the founding. But i would agree i just want to make clear, i would agree that there is discretion to make decisions on the basis of residence, but the plain language of the operative constitutional and statutory provisions dont turn on lawful immigration status. They turn on the facticity of a persons residential circumstance. Justice alito thank you. Chief Justice Roberts Justice Sotomayor. Justice sotomayor mr. Ho, id like to follow up on the effect of waiting in this case. Is is the waiting problem that the census apportionment doesnt happen until april 1. Is that correct . Mr. Ho no, Justice Sotomayor. The commerce secretarys report is due to the president on december 31. And then the president must submit a report to congress within seven days of the beginning of congresss term. Thats either on january 10 or 11. And then the clerk of the house must, within 15 days of that, send certificates to each of the states, notifying them how many seats in congress each state can get. So were talking about Justice Sotomayor so the apportionment already begins once the report is issued . And so we would have to unscramble the egg mr. Ho i think thats right. Justice sotomayor now, can we go back to the question that seems to be at the nub of what many of my colleagues are asking about, which is can and should we rule that simply that not counting illegal aliens because theyre undocumented, that that is a violation of the statute and the constitution . Is that enough relief to you . Mr. Ho i think it is, Justice Sotomayor, because the policy that were challenging is broad and unequivocal. Were bringing a facial challenge to it. And the policy lacks a plainly legitimate sweep. The vast majority of undocumented immigrants qualify as usual residents under any plausible interpretation of that term. 66 Justice Sotomayor assume i even agree with that, however, would that just mean what does that mean practically . What does the secretary do . He doesnt send anything . How about if the president comes back and says just send it to me on these categories . What happens then . Mr. Ho well, the injunction prohibits merely the inclusion of information to implement the existing president ial memorandum in the secretarys 141 report for apportionment. Its not a gag order on the commerce secretary. Theres nothing that would prohibit the commerce secretary from publishing various counts of subcategories of undocumented immigrants on the internet. Thats not something thats prohibited by the injunction. Chief Justice Roberts Justice Kagan. Justice kagan mr. Ho, i guess i would like you to comment on general walls view of the feasibility of the matching process, you know, whether you have any insight into that, into how the process works, and maybe, as part of that, whether you have any insight into the question of why it is that the government knows now that it can do that matching with respect to the i. C. E. Detainees but isnt sure it can do that matching with respect to categories of people for whom it has equally good administrative records. Mr. Ho well, Justice Kagan, im not a social scientist, but heres what i know. In july of 2019, the president issued an executive order on the collection of administrative records as they relate to citizenship, with one of the goals being to ascertain the number of undocumented immigrants in each state. And the text of that memorandum states that the Census Bureau, at that time this was in july of 2019, so about a year and a half ago the Census Bureau had determined, based on experience, that administrative record to which it already had access would enable it to determine citizenship status for approximately 90 of the population. So we know that the bureau has a lot of experience with matching. It can do it for the vast majority of the population already. Thats with administrative records maintained by the Social Security administration and other executive branch agencies. Theyve been collecting more records for the last year and a half. And, as your honor noted, the government has information on millions of undocumented immigrants. I think, when you add all of that together, thats at least a substantial risk of injury. Because it doesnt take much to change the apportionment. As Justice Breyer noted in his opinion last year in the Citizenship Question case, the difference of a few thousand people in a state can mean the difference between gaining or losing a seat. Justice kagan thank you, mr. Ho. Chief Justice Roberts Justice Gorsuch. Justice gorsuch thank you, chief. No questions. Chief Justice Roberts Justice Kavanaugh. Justice kavanaugh thank you, chief justice. And good morning, mr. Ho. First, i want to make one point in response to something general underwood said and im hoping the solicitor general can address this on reply about the declaratory judgment after apportionment, who that would be addressed to and how that would work. Thats something that i would appreciate more from the solicitor general on, but not going to be able to ask at that point. As to you, i want to ask you about your point that we should rule now because the memo expresses the intent to exclude noncitizens who are here unlawfully to the maximum extent under law, is what you said, and you quoted that a couple times. You also referenced i think this is important the memorandum says feasible. And i think the argument has revealed, as did the briefs, but the argument even more clearly, its going to be very difficult its not going to be particularly feasible to exclude all of the noncitizens. Were going to be left with categories. How do we think about feasibility . Mr. Ho well, the governments identified three cat subcategories of undocumented immigrants, in the last few pages of their reply briefs. So i assume those are the ones that the government thinks are the most feasible. But each of those groups, i think, is overbroad. Those groups are heterogeneous. And to exclude any of them would violate constitutional and statutory commands. Theres people detained at the border, but, as i mentioned, a lot of people who dont Justice Kavanaugh im sorry to interrupt, but could we rule to that effect now . We really havent had briefing and argument on the particular subcategories. Mr. Ho id agree that, to the extent the government wants to rely on saving this policy with respect, you know, by citing one or two purportedly valid subcategories to exclude, it would be better for this court to get full briefing on those categories. But theres nothing that stops this court from ruling on the facial validity of this policy, because it plainly lacks legitimate sweep. It applies broadly Justice Kavanaugh and then, in litigation in january, we would deal with the subcategories . Is that how you foresee this . Mr. Ho if thats what the president ultimately ends up doing and issues a new memorandum, i think that would be something that, you know, wed have to deal with one way or another, because the injunction in this case, that was issued by the District Court, doesnt prohibit the exclusion of particular subcategories under a different memo than the blanket categorical one thats at issue in this case. Justice kavanaugh thank you. Chief Justice Roberts Justice Barrett. Justice barrett mr. Ho, you do you agree that there would be nothing wrong or there would be no legal prohibition against the president issuing a new memo articulating new bases for excluding subcategories . Mr. Ho well, the injunction in this case doesnt so preclude the president , Justice Barrett. I dont know if i would commit to there being nothing wrong or it being unlawful not being unlawful. I think that we would have to see what the memo does, if it excludes people on the basis of transient residence within the realm of the president s discretion, as this court held in Justice Barrett let me just clarify. I didnt mean that the lawfulness of whatever the new memorandum said would be determined. I just meant that there would be nothing unlawful about his switching positions and articulating a new rationale for why certain categories of illegal aliens were excluded. Mr. Ho in that hypothetical, Justice Barrett, it wouldnt just be a new rationale. It would be an entirely new policy with a different scope in addition to different reasoning. So i Justice Barrett he could do that, right . Mr. Ho the injunction in this case doesnt prohibit that, thats right. Now whether or not that particular policy would be lawful, i think, would depend upon the Justice Barrett it would be it would be a different question. As you told Justice Kavanaugh, that would be a bridge we would have to cross later, right . Like, if he said, listen, its just not feasible, we havent been able to get the information, so this is why were going to exclude those in i. C. E. Detention facilities, say . Mr. Ho well, if the reason were simply feasibility, but the basis for exclusion were that they were undocumented and their lack of lawful status, then i think that would run into the same kind of reasoning that this court pointed to in shelby county. It didnt matter Justice Barrett right, but that excuse me, mr. Ho but, in that instance, youre saying that the policy itself would be unlawful, but youre not taking the position that he is precluded, at this point, from changing positions and issuing a new policy, the lawfulness of which would be a separate question . Mr. Ho yes, of course, thats right, Justice Barrett Justice Barrett okay. Mr. Ho because the injunction below, you know, is specific to the policy thats been issued and its categorical nature. Justice barrett thank you, mr. Ho. Chief Justice Roberts a minute to wrap up, mr. Ho. Mr. Ho in closing, your honors, no court, no congress, and no executive branch before now has ever thought that undocumented immigrants could be excluded from the whole number of persons in each state. In 1868, the fourteenth amendment based apportionment on person, not citizens, specifically to embrace the entire immigrant population and to secure ratification by states with large immigrant populations. And in 1929, Congress Mandated apportionment on total population, the plain meaning of which does not permit exclusions for immigration status. While the president may have some discretion in borderline cases, he does not have authority to erase millions of state residents from the Apportionment Based solely on unlawful immigration status. As the Latino Justice amicus brief notes, undocumented immigrants contribute 1 trillion in gdp, 20 billion in federal taxes. 80 are essential workers. One in four are homeowners and pay property taxes. Theyre our neighbors, our coworkers, and our family members. They are usual residents under any plausible definition of that term. Chief Justice Roberts thank you, counsel. Rebuttal, general wall . Gen. Wall thank you, mr. Chief justice. So, as i think appellees responses confirm, theres no live or ripe case now. So they seem to accept that the court should just hold for a couple of weeks. But, as you said, mr. Chief justice, by the time we actually run the matching and have more information, the secretary will be ready to send his report. This is all going to happen on an extremely compressed time line in january. And i dont think prudential ripeness should be used to await a ripe claim that could run out the clock on the president s opportunity to send a statement to congress. On the merits, if the president can consider immigration status for any subset, then the court needs to reverse the injunction below and take just three categories those in i. C. E. Facilities, those who have committed crimes and are subject to final orders of removal, and those who have overstayed visas. The president could decide that its consistent with his discretion, as the memo says, to exclude those categories from the Apportionment Base. And the question then is do they have an enduring tie under franklin . They dont. They dont have a tie. We know that from kaplan. And even if they do, its not enduring, because they can be removed. The other sides test, which they havent spent a lot of time defending today, is where you live or sleep most of the time. But that doesnt fit longterm embassy personnel, federal personnel overseas, even college and boarding School Students or members of congress. The test isnt just where you lay your head at night. It is, as franklin says, where you have allegiance or an enduring tie. And theres no coherent theory of Political Representation that says every illegal alien, no matter how little time theyve been here or no matter that they are imminently facing removal, is a usual or settled resident. Its the sovereigns prerogative to define the political community, as thuraissigiam says, and the other side is left to say, look, this is just what the founders wanted. But they dont have an explanation for why the founders would have wanted it, and that should give us pause, because, whatever the founders were, they were not aimless people given to purposeless structures. The court should vacate or reverse the judgment and the other judgments in the other cases and allow the secretary to send his report. Finally, to you, Justice Kavanaugh, that would open up the possibility of postapportionment litigation in the event that there is an effect on apportionment or funding. And if appellees prevail in that litigation on the basis of whatever categories are excluded and they then bring asapplied challenges, they would be asking for the same relief as in franklin. Theyd be asking for a declaratory judgment against the secretary of commerce to reform his section 141 report. It would not be a declaratory judgment against the president. Franklin doesnt allow that. But utah tells us that we assume that the president will comply with that judgment. Theres no reason to form a different assumption here. The president would comply with a postapportionment judgment. In the event that litigation ever happens again, we think there is a real prospect that it will not but, if it does, there is time enough for that to happen when you have concrete injuries and you have a definitive decision from the president on which groups will be excluded from the Apportionment Base. We ask that the court vacate or reverse the judgment here and the judgments in the parallel cases. Chief Justice Roberts thank you, general. The case is submitted. [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] this morning, the Supreme Court hears two oral arguments. First come at 10 00 a. M. Usaern, the case of nestle child slavealleged road. Laws over ab listen to the oral arguments like today on cspan. Org. Treasury secretary Steve Mnuchin and Federal Reserve chair powell are on capitol hill for a senate on the hearing Coronavirus Response live at 10 00 a. M. Eastern on cspan. Onn at 3 00, a discussion fiscal policy under the incoming administration. The Senate Returns to consider judicial nominations. President elect joe biden introduces his economic personnel, which includes the nomination of janet yellen as treasury secretary at 12 30. Coming up this morning, look at the develop meant, efficacy, and safety of the