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In the Supreme Court of the United States

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In the Supreme Court of the United States No. In the Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS v. CITY OF SAN JOSE, ET AL. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS v. STATE OF CALIFORNIA, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JURISDICTIONAL STATEMENT JEFFREY B. WALL Acting Solicitor General Counsel of Record JEFFREY BOSSERT CLARK Acting Assistant Attorney General HASHIM M. MOOPPAN Counselor to the Solicitor General SOPAN JOSHI Senior Counsel to the Assistant Attorney General NICOLE FRAZER REAVES BRINTON LUCAS Assistants to the Solicitor General Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTIONS PRESENTED Congress has provided that, for purposes of appor- tioning seats in the House of Representatives, the Pres- ident 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 Secre- tary 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, 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 require- ments of Article III of the Constitution. 2. Whether the Memorandum is a permissible exer- cise of the President’s discretion under the provisions of law governing congressional apportionment. (I) PARTIES TO THE PROCEEDING Appellants (defendants in the district court) are Don- ald J. Trump, in his official capacity as President of the United States; the United States Department of Com- merce; Wilbur L. Ross, Jr., in his official capacity as Sec- retary of Commerce; the United States Census Bureau, an agency within the United States Department of Com- merce; and Steven Dillingham, in his official capacity as Director of the United States Census Bureau. Appellees include the City of San Jose; King County; Arlington County; Harris County; Black Alliance for Just Immigration; Sam Liccardo; Rodney Ellis; Zerihoun Yilma; Lovette Kargbo-Thompson; and Santcha Etienne (collectively, plaintiffs in the district court in No. 20-cv- 5167). Appellees also include the State of California, by and through California Attorney General Xavier Becerra; the City of Los Angeles; the City of Long Beach; the City of Oakland; the Los Angeles Unified School District; and the County of Los Angeles (collectively, plaintiffs in the dis- trict court in No. 20-cv-5169). (II) RELATED PROCEEDINGS United States District Court (N.D. Cal.) (three-judge district court): City of San Jose v. Trump, No. 20-cv-5167 (Aug. 20, 2020) (assigning three-judge district court) California v. Trump, No. 20-cv-5169 (Aug. 20, 2020) (assigning three-judge district court) City of San Jose v. Trump, No. 20-cv-5167 (Oct. 22, 2020) (entering final judgment and granting per- manent injunction) California v. Trump, No. 20-cv-5169 (Oct. 22, 2020) (entering final judgment and granting permanent injunction) United States Court of Appeals (9th Cir.): City of San Jose v. Trump, No. 20-17104 (notice of appeal filed Oct. 23, 2020) California v. Trump, No. 20-17105 (notice of appeal filed Oct. 23, 2020) (III) TABLE OF CONTENTS Page Opinion below ................................................................................ 1 Jurisdiction .................................................................................... 1 Constitutional and statutory provisions involved ...................... 2 Statement ...................................................................................... 2 Reasons for noting probable jurisdiction ................................. 10 Conclusion ................................................................................... 12 Appendix A — District court order granting plaintiffs’ motion for partial summary judgment and denying defendants’ motion to dismiss (Oct. 22, 2020) ................................. 1a Appendix B — District court final judgment and permanent injunction (Oct. 22, 2020) .... 128a Appendix C — District court notice of appeal (Oct. 23, 2020)........................................... 132a Appendix D — Designation of the three-judge panel pursuant to 28 U.S.C. § 2284(b) (Aug. 20, 2020) ......................................... 134a Appendix E — District court request to the chief judge of the U.S. court of appeals for the Ninth Circuit to convene a three-judge court under 28 U.S.C. § 2284 (Aug. 18, 2020) ......................................... 136a Appendix F — Constitutional and statutory provisions ... 140a TABLE OF AUTHORITIES Cases: Dalton v. Specter, 511 U.S. 462 (1994) ................................. 12 Franklin v. Massachusetts, 505 U.S. 788 (1992) .................. 4 New York v. Trump, No. 20-cv-5770, 2020 WL 5422959 (S.D.N.Y. Sept. 10, 2020) ...................... 8 New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y.), aff ’d in part, rev’d in part, and remanded, 139 S. Ct. 2551 (2019).......... 4 (V) VI Constitution and statutes: Page U.S. Const.: Art. I, § 2, Cl. 3 ........................................................ 3, 140a Art. III .................................................................... 6, 10, 11 Amend. XIV, § 2 ...................................................... 3, 142a 2 U.S.C. 2a(a) ................................................................. 3, 142a 13 U.S.C. 141(a) ............................................................. 3, 144a 13 U.S.C. 141(b) ............................................................. 3, 144a 28 U.S.C. 2284(b) ..................................................................... 6 Miscellaneous: 83 Fed. Reg. 5525 (Feb. 8, 2018) ............................................ 4 85 Fed. Reg. 44,679 (July 23, 2020) .................................... 2, 5 Press Release, U.S. Census Bureau, U.S. Dep’t of Commerce, Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count (Aug. 3, 2020), https://go.usa.gov/xGR2C ........................... 5 In the Supreme Court of the United States No. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS v. CITY OF SAN JOSE, ET AL. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS v. STATE OF CALIFORNIA, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JURISDICTIONAL STATEMENT The Acting Solicitor General, on behalf of President Donald J. Trump, et al., respectfully files this jurisdic- tional statement on appeal from the judgments of the three-judge panel of the United States District Court for the Northern District of California. OPINION BELOW The opinion of the three-judge district court (App., infra, 1a-127a) is not yet reported but is available at 2020 WL 6253433. JURISDICTION Under 28 U.S.C. 2284, a three-judge district court was required to be convened because appellees’ suits challenged on constitutional (and other) grounds the (1) 2 President’s determination concerning standards for in- cluding individuals in the apportionment base for reap- portioning congressional districts. See App., infra, 136a-139a; D. Ct. Doc. 46, at 32-40 (Aug. 18, 2020).* The judgments of the three-judge district court, which in- cluded a permanent injunction, were entered on Octo- ber 22, 2020. App., infra, 128a-131a. The government filed notices of appeal on October 23, 2020. The juris- diction of this Court is invoked under 28 U.S.C. 1253. See Dothard v. Rawlinson, 433 U.S. 321, 324 n.5 (1977) (holding that an appeal lies under Section 1253 where a properly convened three-judge district court grants an injunction on antecedent statutory grounds); White v. Regester, 412 U.S. 755, 760-761 (1973) (holding that where an injunction is appealable under Section 1253, so is an accompanying declaratory judgment). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Pertinent constitutional and statutory provisions are reproduced in the appendix to this pleading. App., in- fra, 140a-144a. STATEMENT This case is one of several challenges to a Memoran- dum from the President to the Secretary of Commerce regarding the exclusion of illegal aliens from the appor- tionment population base determined under the 2020 census. 85 Fed. Reg. 44,679 (July 23, 2020). In one of those cases, the government appealed to this Court an order preventing the Secretary from complying with the Memorandum, J.S. App. at 1a-107a, Trump v. New * All citations of district court documents are to those filed in No. 20-cv-5167. 3 York, No. 20-366 (filed Sept. 22, 2020); this Court post- poned consideration of jurisdiction and expedited the appeal on October 16, 2020, setting oral argument for November 30, 2020. After the Court did so, the district court in this case
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