No. In the Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS v. NATALIA USECHE, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND 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 (plaintiffs in the district court) are Natalia Useche; Joyce Brown; Amit Dodani; Natalie Hernandez; Michael Kagan; Angela Kang; Angel Lira; Charles Park; Angel Ulloa; Kathi White; Katelyn Cohen; the Arizona Center for Empowerment; and the Florida Immigrant Coalition. (II) RELATED PROCEEDINGS United States District Court (D. Md.) (three-judge district court): Useche v. Trump, No. 20-cv-2225 (Aug. 26, 2020) (as- signing three-judge district court) Useche v. Trump, No. 20-cv-2225 (Nov. 6, 2020) (en- tering final judgment and granting permanent in- junction and declaratory judgment) United States Court of Appeals (4th Cir.): Useche v. Trump, No. 20-2207 (notice of appeal filed Nov. 6, 2020) (III) TABLE OF CONTENTS Page Opinion below ................................................................................ 1 Jurisdiction .................................................................................... 1 Constitutional and statutory provisions involved ...................... 2 Statement ...................................................................................... 2 Reasons for noting probable jurisdiction ................................... 9 Conclusion ................................................................................... 11 Appendix A — District court memorandum opinion (Nov. 6, 2020) ............................................... 1a Appendix B — District court final judgment (Nov. 6, 2020) ............................................. 37a Appendix C — District court notice of appeal (Nov. 6, 2020) ............................................. 39a Appendix D — Designation of the three-judge panel pursuant to 28 U.S.C. § 2284(b) (Aug. 26, 2020) ........................................... 41a Appendix E — District court request to the chief judge of the U.S. court of appeals for the Fourth Circuit to convene a three- judge court under 28 U.S.C. § 2284 (Aug. 17, 2020) ........................................... 43a Appendix F — Constitutional and statutory provisions ..... 47a TABLE OF AUTHORITIES Cases: 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, 5 (V) VI Constitution and statutes: Page U.S. Const.: Art. I, § 2, Cl. 3 .................................................................. 3 Art. III ...................................................................... 6, 9, 10 Amend. XIV, § 2 ................................................................ 3 2 U.S.C. 2a(a) ................................................................... 3, 49a 13 U.S.C. 141(a) ............................................................... 3, 51a 13 U.S.C. 141(b) ............................................................... 3, 51a 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. NATALIA USECHE, ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND 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 judgment of the three-judge panel of the United States District Court for the District of Maryland. OPINION BELOW The opinion of the three-judge district court (App., infra, 1a-36a) is not published in the Federal Supple- ment but is available at 2020 WL 6545886. JURISDICTION Under 28 U.S.C. 2284, a three-judge district court was required to be convened because appellees’ suit challenged on constitutional (and other) grounds the President’s determination concerning standards for in- cluding individuals in the apportionment base for reap- portioning congressional districts. See App., infra, 23a; D. Ct. Doc. 18, at 31-35 (Aug. 14, 2020). The judgment of the three-judge district court, which included a per- manent injunction, was entered on November 6, 2020. (1) 2 App., infra, 37a-38a. The government filed notices of appeal on November 6, 2020. The jurisdiction 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 con- vened 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 injunc- tion is appealable under Section 1253, so is an accompa- nying declaratory judgment). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Pertinent constitutional and statutory provisions are reproduced in the appendix to this pleading. App., in- fra, 47a-51a. 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 from an order entered by the United States District Court for the Southern District of New York that pre- vented the Secretary from complying with the Memo- randum. J.S. App. at 1a-107a, Trump v. New York, No. 20-366 (filed Sept. 22, 2020). This Court postponed con- sideration of jurisdiction and expedited the appeal on October 16, 2020, setting oral argument for November 30, 2020. After the Court did so, the United States Dis- trict Court for the Northern District of California is- sued essentially the same relief on very similar grounds; the government appealed from that decision to this Court, requesting that the Court hold the appeal 3 pending its decision in New York. See J.S. at 10-11, Trump v. City of San Jose (No. 20-561) (filed Oct. 29, 2020). Following the district court decisions in New York and San Jose, the district court in this case issued essentially the same relief, and on the same grounds, as did the New York court. App., infra, 1a-38a. 1. The Constitution provides that “Representatives shall be apportioned among the several States accord- ing to their respective numbers, counting the whole number of persons in each State.” U.S. Const. Amend. XIV, § 2. To make apportionment possible, the Consti- tution requires the federal government to conduct an “actual Enumeration” every ten years in “such Manner as” directed by Congress.