Case 5:20-cv-05167-LHK-RRC-EMC Document 102 Filed 10/22/20 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 SAN JOSE DIVISION 12 CITY OF SAN JOSE, CALIFORNIA, et al., No. 20-CV-05167-RRC-LHK-EMC Plaintiffs, 13 v. 14 DONALD J. TRUMP, et al., 15 Defendants. 16 17 STATE OF CALIFORNIA, et al., No. 20-CV-05169-RRC-LHK-EMC United States District Court States District United Northern District of California District Northern 18 Plaintiffs, FINAL JUDGMENT AND v. 19 PERMANENT INJUNCTION 20 DONALD J. TRUMP, et al., 21 Defendants. 22 23 Before: RICHARD R. CLIFTON, United States Circuit Judge 24 LUCY H. KOH, United States District Judge EDWARD M. CHEN, United States District Judge 25 26 PER CURIAM. 27 28 1 Case Nos. 20-CV-05167-RRC-LHK-EMC & 20-CV-05169-RRC-LHK-EMC FINAL JUDGMENT AND PERMANENT INJUNCTION Case 5:20-cv-05167-LHK-RRC-EMC Document 102 Filed 10/22/20 Page 2 of 3 1 On October 22, 2020, we granted Plaintiffs’ motion for partial summary judgment and 2 denied Defendants’ motion to dismiss, or in the alternative, motion for partial summary judgment. 3 See City of San Jose v. Trump, 20-cv-05167, ECF No. 101; State of California v. Trump, 20-cv- 4 05169, ECF No. 82. 5 Pursuant to Fed. R. Civ. P. 54(b), we certify that there is no just reason for delay. The 6 United States Supreme Court has scheduled oral argument and briefing in a case that challenges 7 the same July 21, 2020 Presidential Memorandum on Excluding Illegal Aliens from the 8 Apportionment Basis Following the 2020 Census (the “Presidential Memorandum”), which 9 declared that it is the policy of the United States to exclude from the apportionment base aliens 10 who are not in a lawful immigration status. See Trump v. New York, No. 20-366. In New York, 11 Appellants’ brief on the merits, and any amicus curiae briefs in support of appellants or in support 12 of neither party, shall be filed on or before Friday, October 30, 2020. Appellees’ briefs on the 13 merits, and any amicus curiae briefs in support of appellees, shall be filed on or before Monday, 14 November 16, 2020. The reply brief shall be filed by 2 p.m., Monday, November 23, 2020. Oral 15 argument is set for Monday, November 30, 2020. See U.S. Supreme Court, Miscellaneous Order 16 (Oct. 16, 2020). 17 Accordingly, final judgment is entered on the claims for which we granted partial summary United States District Court States District United Northern District of California District Northern 18 judgment. Specifically, final judgment is entered for Plaintiffs and against Defendants on the 19 following claims: (1) violation of the Apportionment and Enumeration Clauses of Article I, 20 Section 2 of the Constitution and Section 2 of the Fourteenth Amendment of the Constitution (City 21 of San Jose Claim One; State of California Claim One); (2) violation of the Census Act and the 22 Reapportionment Act (City of San Jose Claim Three; State of California Claim Three); and (3) the 23 separation of powers (State of California Claim Two). See City of San Jose v. Trump, 20-cv-05167, 24 ECF No. 46 (City of San Jose Plaintiffs’ Amended Complaint); State of California v. Trump, 20- 25 cv-05169, ECF No. 28 (State of California Plaintiffs’ Amended Complaint). 26 We hereby declare that the Presidential Memorandum is unlawful as a violation of the 27 Apportionment and Enumeration Clauses of Article I, Section 2 of the Constitution and Section 2 28 2 Case Nos. 20-CV-05167-RRC-LHK-EMC & 20-CV-05169-RRC-LHK-EMC FINAL JUDGMENT AND PERMANENT INJUNCTION Case 5:20-cv-05167-LHK-RRC-EMC Document 102 Filed 10/22/20 Page 3 of 3 1 of the Fourteenth Amendment of the Constitution; the Census Act; the Reapportionment Act; and 2 the separation of powers. 3 Finally, the Court issues the following permanent injunction: 4 The Court enjoins all Defendants other than the President from including in the Secretary's report to the President pursuant to Section 141(b) any “information 5 permitting the President . to exercise the President's discretion to carry out the 6 policy set forth in section 2” of the Presidential Memorandum—that is, any information concerning the number of aliens in each State “who are not in a lawful 7 immigration status under the Immigration and Nationality Act”—in the Secretary’s 8 report to the President pursuant to 13 U.S.C. § 141(b) or otherwise as part of the decennial census. Presidential Memorandum, 85 Fed. Reg. at 44,680 Presidential 9 Memorandum, 85 Fed. Reg. at 44,680. Instead, consistent with the Census Act, the 10 Secretary’s Section 141(b) report shall include only “[t]he tabulation of total population by States under” Section 141(a) “as required for the apportionment of 11 Representatives in Congress among the several States,” 13 U.S.C. § 141(b)—that 12 is, “information tabulated according to the methodology set forth in [the Residence Rule],” Presidential Memorandum, 85 Fed. Reg. at 44,680. 13 The Clerk shall close the file. 14 IT IS SO ORDERED. 15 16 Dated: October 22, 2020 17 __________/s/_______________________ United States District Court States District United Northern District of California District Northern 18 RICHARD R. CLIFTON United States Circuit Judge 19 20 __________/s/_______________________ 21 LUCY H. KOH 22 United States District Judge 23 24 __________/s/_______________________ EDWARD M. CHEN 25 United States District Judge 26 27 28 3 Case Nos. 20-CV-05167-RRC-LHK-EMC & 20-CV-05169-RRC-LHK-EMC FINAL JUDGMENT AND PERMANENT INJUNCTION Case 5:20-cv-05167-LHK-RRC-EMC Document 101 Filed 10/22/20 Page 1 of 90 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 SAN JOSE DIVISION 12 CITY OF SAN JOSE, CALIFORNIA, et al., No. 20-CV-05167-RRC-LHK-EMC Plaintiffs, 13 v. 14 DONALD J. TRUMP, et al., 15 Defendants. 16 17 STATE OF CALIFORNIA, et al., No. 20-CV-05169-RRC-LHK-EMC United States District Court States District United Northern District of California District Northern 18 Plaintiffs, ORDER GRANTING PLAINTIFFS’ v. 19 MOTION FOR PARTIAL SUMMARY 20 JUDGMENT AND DENYING DONALD J. TRUMP, et al., DEFENDANTS’ MOTION TO DISMISS 21 Defendants. 22 23 Before: RICHARD R. CLIFTON, United States Circuit Judge 24 LUCY H. KOH, United States District Judge EDWARD M. CHEN, United States District Judge 25 26 PER CURIAM. 27 1 28 Case Nos. 20-CV-05167-RRC-LHK-EMC & 20-CV-05169-RRC-LHK-EMC ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO DISMISS Case 5:20-cv-05167-LHK-RRC-EMC Document 101 Filed 10/22/20 Page 2 of 90 1 Before us are Plaintiffs’ Motion for Partial Summary Judgment and Defendants’ Motion to 2 Dismiss, or in the Alternative, Motion for Partial Summary Judgment regarding the Presidential 3 Memorandum of July 21, 2020, which declared that, “[f]or the purposes of the reapportionment of 4 Representatives following the 2020 census, it is the policy of the United States to exclude from the 5 apportionment base aliens who are not in a lawful immigration status.” Excluding Illegal Aliens 6 from the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44,679, 44,680 (July 23, 7 2020) (the “Presidential Memorandum”). 8 Plaintiffs, which include the State of California, numerous cities and counties across the 9 country, a school district, a public interest organization, and citizens, challenge the legality of the 10 Presidential Memorandum.1 We conclude that the Presidential Memorandum violates the 11 Constitution and two statutes. Specifically, the Presidential Memorandum violates the 12 Apportionment and Enumeration Clauses of Article I, Section 2 of the Constitution and Section 2 13 of the Fourteenth Amendment of the Constitution; the constitutional separation of powers; the 14 Census Act of 1954; and the Reapportionment Act of 1929. 15 Our decision is not based on any preference we might have on the question of whether, as a 16 matter of policy, undocumented immigrants should be included for purposes of determining the 17 apportionment of seats in the House of Representatives. The Presidential Memorandum provides United States District Court States District United Northern District of California District Northern 18 reasons for its policy, but those are not for us to review. Rather, our conclusion is based upon our 19 determination of what the law requires. The policy which the Presidential Memorandum attempts 20 to enact has already been rejected by the Constitution, the applicable statutes, and 230 years of 21 22 1 Specifically, this case is brought by Plaintiffs State of California; City of Los Angeles, California; City of Long Beach, California; City of Oakland, California; Los Angeles Unified 23 School District, County of Los Angeles; City of San Jose, California; King County, Washington; 24 Arlington County, Virginia; Harris County, Texas; Black Alliance for Just Immigration; Sam Liccardo; Rodney Ellis; Zerihoun Yilma; Lovette Kargbo-Thompson; and Santcha Etienne 25 (collectively, “Plaintiffs”) against Defendants President Donald J. Trump; Secretary of Commerce 26 Wilbur L. Ross, Jr.; the Department of Commerce; the U.S. Census Bureau; and the Director of the U.S. Census Bureau Steven Dillingham (collectively, “Defendants”). 27 2 28 Case Nos. 20-CV-05167-RRC-LHK-EMC & 20-CV-05169-RRC-LHK-EMC ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION TO DISMISS Case 5:20-cv-05167-LHK-RRC-EMC Document 101 Filed 10/22/20 Page 3 of 90 1 history.