Nov 30, 2020

Supreme Court Hears Arguments on Trump’s Census Plan Transcript November 30

Supreme Court Hears Arguments on Trump's Plan to Exclude Immigrants from Census Transcript November 30
RevBlogTranscriptsPolitical TranscriptsSupreme Court Hears Arguments on Trump’s Census Plan Transcript November 30

The Supreme Court heard oral arguments over Trump’s plan to exclude undocumented immigrants in the census on November 3o. Read the transcript here.

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Speaker 1: (00:00)
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez. Oyez. Oyez. All persons having business before the Honorable, the Supreme Court of the United States, are admonished to give their attention, for the Court is now sitting. God save the United States and this Honorable Court.

Chief Justice Roberts: (01:09)
We will hear argument first this morning in case 20-366, Trump versus New York. General Wall?

General Wall: (01:17)
Mr. Chief Justice, and may it please the Court: This case should be over. The district court held that appellees would be injured because illegal aliens would be chilled from participating in the enumeration. But that counting is now over, and whatever chill ever existed has thawed. Appellees therefore pivot to possible future injuries, but as of this very morning, career experts at the Census Bureau confirmed with me that they still don’t know even roughly how many illegal aliens it’ll be able to identify, let alone how their number and geographic concentration might affect apportionment.

General Wall: (01:52)
And if they don’t know, certainly, the other parties to this case do not. The Court, therefore should follow the course charted by the three judge DC district court last week. Vacate the judgment below, allow the secretary to comply with the memorandum, and allow any effect on apportionment to be litigated as it normally would be, in a post apportionment lawsuit by parties with concrete injuries. On the merit, there’s no procedural problem with the memorandum. The President may direct the secretary to send him two sets of numbers so that he may decide how to exercise whatever discretion he has. The real fight here is substantive over how much discretion the President has. Text, history, and precedent are all clear about the general test whether one is an inhabited. 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 31st or scheduled to be removed on April 2nd at a usual or settled resident of the United States on April 1st flies in the face of this Court’s cases, common sense, and any sound theory of political representation. The President has at least some discretion to determine that at least some illegal aliens lack enduring ties to the states, which means that the judgment should be reversed. I welcome the court’s questions.

Chief Justice Roberts: (03:12)
General, my first question goes to the very first point you raised. 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?

General Wall: (03:32)
Well, the situation is fairly fluid, Mr. Chief Justice. Because of the two weeks that we lost to the California injunction and some subsequent issues in processing the data, we are not currently on pace to send the report to the President by the year-end statutory deadline. But just this morning, I confirmed with 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 the PM-related data to the President in January. Som we do still need relief from the court, yes.

Chief Justice Roberts: (04:08)
It sounds like you had a busy morning. What do you mean PM data?

General Wall: (04:14)
I’m sorry, the Presidential memorandum data, so the data the President has requested in order to potentially back out illegal aliens from the apportionment base.

Chief Justice Roberts: (04:26)
On the standing question, if the court doesn’t intervene now, before the Secretary transmits the information to the President, I don’t know when the court would be able to intervene. All that would be left after that transmittal is the transmittal by the President to the House. So, if the injury can’t be redressed at this point, when could it be?

General Wall: (04:58)
In a post-apportionment lawsuit, just as in Franklin or Wisconsin or Utah v. Evans, if the Bureau is able to feasibly identify enough aliens and the President excludes those categories, and that affects the apportionment, those are all three unknowns, but if that happens, then you’d have a post-apportionment challenge, just as in Franklin, for the Secretary to revise his report and for the President to send a new report to the House, in effect to redo the apportionment.

Chief Justice Roberts: (05:29)
But isn’t that going to be like having to unscramble the eggs? I mean, the apportionment, any change in any one state, of course, it’s going to have ripple effects all across the country, and it does seem like it’d be more manageable at an earlier stage.

General Wall: (05:50)
Well, Mr. Chief Justice, I don’t want to resist this too much because we would prefer for the courts to reach the merit and uphold the Presidential memorandum. We just think for the reasons given by the DC district court last week, there are too many unknowns here. I take the point that here is a bit of an omelet to unscramble, but we do on scramble that in post-apportionment lawsuits, so it’s possible to enter relief. And on the flip side, 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’s effectively advisory because the numbers aren’t large enough to affect the apportionment, and the appellees here, and other potential appellees, wouldn’t be injured either with respect to apportionment or funding, that strikes us as a fairly serious problem, either as a matter of article three standing or prudential ripeness.

Chief Justice Roberts: (06:39)
General, just very quickly, should we assume that we’re not going to be talking about all illegal aliens in the country, but some subset, some uncertain subset, like the ones in ICE detention?

General Wall: (06:54)
I think it is very fair to say, Mr. Chief Justice, that the President has not made a determination yet, because we don’t know what’s feasible, about excluding all illegal aliens, and has recognized that some subsets are going to be much stronger cases for the exercise of his discretion than other subsets. And that’s-

Chief Justice Roberts: (07:11)
Thank you, General. Justice Thomas?

Justice Thomas: (07:14)
Thank you, Mr. Chief Justice. General Wall, I’d like you just to discuss a bit, as you understand, what the respondent is arguing, how does their alleged injury would be redressable without including the, or enjoining the President? Because it’s actually his decision that it seems that they’re ultimately concerned about.

General Wall: (07:42)
So, I think that’s a fair point, Justice Thomas, but the court crossed that bridge in Utah v. Evans over a dissent by Justice Scalia, that the relief wasn’t addressable because relief couldn’t run against the President. And the court held in Utah, and no one has asked here that that decision be overruled, that it was fair that you could obviously enjoin the Secretary as a subordinate official, and that the judiciary would assume that the President would comply. And so, too, here, there’s no reason to believe that the President would not comply with this court’s judgment either now or in a post-apportionment context.

Justice Thomas: (08:17)
In Utah, is my understanding, that that was actually the Census, wasn’t it?

General Wall: (08:25)
Yes. It was a challenge to certain procedures that were being used with respect to the Census. It was an ineffective sampling claim.

Justice Thomas: (08:34)
Okay. But here, we’re talking about something separate from the Census, or am I mistaken?

General Wall: (08:40)
No, I think that’s the other side’s argument, Justice Thomas. I think they have seized on the fact that we’ve sometimes used the word Census to refer to the counting and said, “Aha, look, the Census Bureau came up with a final number and the President essentially accepted that, but then saw to back out illegal aliens.” And I don’t think that’s right. The Presidential memorandum makes clear that he was exercising his authority, under Franklin, to determine the apportionment base after the counting, and so I don’t think… It is certainly our position that this is not somehow outside or stands apart from the Census.

Justice Thomas: (09:17)
Because you actually, though, get the exact same information in a memo that’s from the Commerce Department or the Census Bureau that says, “This is not the section 141 report, but here’s what we think those numbers look like”?

General Wall: (09:35)
The statutory scheme seems to contemplate that the President will rely on the secretary’s report in sending his submission to Congress. Now, Franklin says he’s entitled to reform the data that the Secretary gives him, but I think it would be a much more difficult question if he tried to act entirely outside of the process that the statute set up. And obviously, here, he hasn’t done that. He’s 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.

Justice Thomas: (10:10)
Well, it just seems to me that… I don’t understand why the President couldn’t get the exact same advice outside of the context of a formal report with separate numbers and then make his decision. But beyond that, the Chief Justice asked you about these subcategories, or subsets of illegal aliens, but could you give us your idea of what the President means generically by illegal alien?

General Wall: (10:45)
He means people who are present in this country unlawfully, and that includes a number of different subsets. We’ve named several of them in our brief, which I think are the clearest cases for the exercise of the President’s discretion, but there are a number of other subsets, too. But the entire category is people who are present in this country in violation of federal law.

Justice Thomas: (11:09)
Thank you. General Wall.

Chief Justice Roberts: (11:10)
Justice Breyer?

Justice Breyer: (11:12)
Yes. Thank you. I was also concerned with what Justice Thomas brought up. And so, to clear away some weeds from my mind, would you tell me where I missed this or if I’m right? We’re looking at a statute, 141. A says the Secretary shall take a decennial census. Okay? B says the tabulation of the population that he just [inaudible 00:11:42] as required for the apportionment of representatives, that tabulation shall be reported by the Secretary of President. That’s the report we’re concerned about. That’s the tabulation we’re concerned about. And just based on that, where you go to 2A, the President shall transmit a statement showing the whole number of persons for the purpose, again, of apportionment. So, we’re not interested in other ways, we’re interested in this report, in this tabulation, under 141B.

Justice Breyer: (12:17)
Now, if I’m right so far, the President’s order says, “I’ll tell you why I want that. I want that because it’s our policy that illegal aliens will not be included in the Census. I can’t tell you exactly why it doesn’t say that it just says illegal aliens will not be included.” And he asked for the report so he can do that. Now, if the Constitution forbids him to, or if the statutes forbid him, to subtract from the tabulation for purposes of the statement, if it forbids him to subtract those illegal aliens or to the extended does, the tabulation and the report are not the tabulation required for the apportionment of the Census. And therefore, he cannot ask; he cannot ask the Secretary for that report to contain that information, right or wrong. And if wrong, why?

General Wall: (13:22)
So, I think I agreed with you up to the very end, Justice Breyer. I think you correctly understand how these statutory provisions, which were passed together in 1929, work, and I think it’s true that if the Constitution or the statutes constrain the President’s ability to back them out, then that would mean that his statement, setting aside judicial review, his statement to Congress under 2AA would be unlawful. But I don’t know that any of that is a constraint on his ability to simply request the information from the [crosstalk 00:13:58].

Justice Breyer: (13:58)
Well, it is not the information if it’s unlawful but is required for the apportionment of the House of Representatives, because it is illegal. Now, whether it’s illegal or not is a different question. All we have on that is about 40 briefs that show that the history, the language, the consequences, the purposes, and a bunch of other things argue against you, that you have arguments against that. But if that side wins, then I don’t see how the information he’s requested could be the information required for the apportionment of representatives, voting the statute.

General Wall: (14:32)
I think all I would say, Justice Breyer, is I don’t want to run together the procedural and the substantive issues. I think what you’re really getting at is the substantive issue of what the President’s powers are here, not any of the procedural issues that they’ve raised with respect to the memorandum. So, I agree with you that what’s really at issue here is that substantive question that you’re focused on.

Justice Breyer: (14:55)
Well, maybe, but we’re not suing the President. They’re not. They’re suing the Secretary, and they’re saying, “Mr. Secretary, you cannot give to the President this requested information and also say that that piece of paper that you send him is the tabulation as required for the apportionment of representatives. It may be something else, but it isn’t that. And that’s what he’s asked you to do, and that’s what you’re trying to do. And Mr. Secretary, if it’s illegal, you can’t do it.”

General Wall: (15:31)
That’s right, Justice Breyer. My only point was that doesn’t have anything to do with their procedural arguments about the use of administrative records or whether this is somehow part of the Census.

Justice Breyer: (15:40)
No, it doesn’t.

General Wall: (15:41)
That’s all just their substantive claim that the President doesn’t have the power to ask [crosstalk 00:15:45].

Justice Breyer: (15:45)
Okay. Okay. Then they don’t [crosstalk 00:15:46] when it says persons, this started in 1820, and they’ve always counted people who were here and not naturalized. And this has never happened before that you excluded illegal aliens, and it has a lot of negative effects on the states. You know all those arguments, and I think they’re fairly strong ones.

General Wall: (16:05)
Justice-

Justice Breyer: (16:06)
What do you want to say? They’re persons, aren’t they?

General Wall: (16:08)
[inaudible 00:16:08].

Chief Justice Roberts: (16:09)
Briefly, counsel.

General Wall: (16:11)
So, I just, very briefly, Justice Breyer, there’s two different things there. One is the historical practice, which I hope I’ll be able to address later because I think Franklin takes care of that. The other is the text and the history. None of that goes specifically to the question of illegal aliens.

Chief Justice Roberts: (16:24)
Justice Alito?

Justice Alito: (16:26)
General Wall, if I can, 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. It depends on what the Census Bureau and the Department of Commerce are able to do. If I just take the numbers from the district court on DC’s opinion last week, they said that the plaintiffs in that case were claiming that there are 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, it’s something like 60,000.

Justice Alito: (17:23)
The first number could easily change the apportionment of representatives. The second one, it’s much more doubtful that it would change the apportionment of representatives. 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, to take 300 million plus names and determine individually for each of those people whether they are lawfully in the United States, and I would think you would be able to tell us whether that remains a realistic possibility at this point. Can you not provide us with any more information than what you provided in your answer to the Chief Justice, was that basically they’re working on it?

General Wall: (18:19)
Oh, I can provide you with a little bit more. I don’t 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, so anything like the 10 or 11 or 12 million numbers that are flying around. They will be able, I think, to do ICE facilities which, as you say, is some number in the tens of thousands. The question is where it will fall in the middle, and we don’t know. And the reason we don’t know is because it turns a great deal on the level of detail that we got in doing the enumeration, and until we actually take the Census master file and these various administrative records, once they’re all cleaned up and ready to go, and we actually run the models in the few weeks, or whenever it is, we won’t actually know how many people we pick up.

General Wall: (19:12)
And so, I pressed the Deputy Director of the Census Bureau on this very question, and the simple fact is that the experts don’t know. They don’t know whether it will be 50,000 or 100,000 or 500,000 or a million, so there’s just substantial uncertainty.

Justice Alito: (19:27)
Well, before my time runs out, I have no expertise whatsoever in this area. I could understand if they say all we can determine is how many people are in detention facilities or subject to final orders of removal. If they’re going for the bigger picture and trying to identify everybody who is in this country unlawfully, I don’t see how they can provide a partial answer to that. If they were to say, “Well, we’ve done this for 200 million people, but we don’t know about the 100 million plus additional people.” There’s no way an apportionment could be based on that, is there?

General Wall: (20:10)
They’re trying to get the categories of illegal aliens that you could identify based on the kinds of records that we have, so final orders of removal, for instance, or people who’ve been removed who are found here again and haven’t been given any lawful status. So, it’s not that we can pick up everyone. There will be some undetected illegal aliens who we aren’t even attempting to screen for because they wouldn’t be picked up, obviously, by any record. It’s the categories that would be shown by some sort of records that we have. And the question is just how feasible is it going to be to capture large numbers within those categories? And unfortunately, we don’t know at this point, and it’s a feature, by the way, though, I have to say, not of the government’s conduct. It’s a feature of the fact that appellees brought a pre-apportionment challenge on the basis of this injury that was always going to [cease 00:20:58] in the past [crosstalk 00:20:59] take effect.

Chief Justice Roberts: (21:02)
Justice Sotomayor? Justice Sotomayor?

Justice Sotomayor: (21:04)
Yes. Mr. Wall, as I understand and read the 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. Now, yes, he limits this to where it’s feasible to identify that, but right now, his policy is, “If I can identify them, no matter what the reason is for them being fielded as an illegal alien, I’m going to exclude them from the Census.” Following up on Justice Alito’s question, aren’t those the very categories that you already say that we’ve been told there’s been some of them who’s in ICE that’s going to come by December 31st? And then by January 11th, the Census Bureau says that it intends to provide the President with the information “necessary to fully implement the Presidential memorandum.” I’m quoting the Census Bureau.

Justice Sotomayor: (22:12)
So, if I take that at its face, [inaudible 00:22:17] number’s not going to be 60,000. The number intended is substantially large. And I think that was Justice Alito’s point, which is the Census Bureau has been collecting data about undocumented immigrants from other agencies for over a year. I don’t see how you can represent to us that you don’t think it’s going to be a substantial number.

General Wall: (22:49)
Three quick points, Justice Sotomayor. First, I don’t think that’s actually an accurate statement of the memorandum. You’re certainly right that that’s the policy, but there are two built-in limitations. One is whether it’s feasible, and the second is whether the President decides that he has the legal discretion to exclude all of these subsets. And the subsets might have different legal analysis depending on the kind of ties they have or the type of status they have. But the second [crosstalk 00:23:15].

Justice Sotomayor: (23:15)
Mr. Wall, I’m a little bit questioning of that, for the following reason. The Census Bureau already defines what residency is, where you’re living, as a snapshot date of April 1st, 2020. Now, whether you’re in a prison, in ICE, a detention, we’re told by one of our [amici 00:23:41] that 57% of the people in detention will eventually be released to the United States, either through asylum or through some other mechanism. So, I am not sure how you can identify any class of immigrants that isn’t living here in its traditional sense, but this is where they are. This is where they were on April 1st and where they intend to stay if they can find any way to do it.

General Wall: (24:16)
Justice Sotomayor, based on my understanding from the Census Bureau, there is a real prospect that the numbers will not affect the apportionment, but as I said earlier to the Chief Justice, I’m perfectly happy if the court disagrees with us on that and disagrees with the analysis of the DC district court last week, and moves to the merits. Because we think on the merit, the courts should uphold the Presidential memorandum because at least some of the illegal aliens captured by the Presidential memorandum don’t satisfy the test for inhabitants as a matter of the Constitution or the statutes.

Justice Sotomayor: (24:50)
Well, what you’re saying is the memo says, I think any one Presidential memo says, I think anyone without papers should not be counted. Now you’re saying, “Well, maybe the President will limit that sub category.” But that’s not what he’s asking for. He’s asking for all of those illegal aliens that can be unidentified. And wouldn’t Heller defeat this argument that we shouldn’t rule? In Heller, we knew that there were certain people who states could legitimately bar from possessing guns in their homes, but we didn’t say because there’s that subset we’re not going to declare what the general law is. So, why should we do the same thing here? You can’t exclude illegal aliens because they’re undocumented.

General Wall: (25:43)
The court would have to conclude in order to say that, as the district courts here did, that the President doesn’t have the discretion to exclude any illegal aliens from the apportionment base, even some subset, because the injunction here prohibits him from getting any of the information he needs to exclude any subset. And he did make clear in the memorandum that although as a matter of policy he 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. He wanted to see what [crosstalk 00:26:15].

Chief Justice Roberts: (26:15)
Justice Kagan?

General Wall: (26:16)
… the Bureau.

Justice Kagan: (26:19)
General Wall, I guess I’d like to keep going with the line of questioning that the Chief Justice and Justice Alito talked about, as to what categories we’re talking about. As I read you, you’re saying, “Well, yes, there’s this small category of ICE detainees that pretty feasible,” but that’s just tens of thousands of people. So, how about a few others? As I understand it, there are almost 200,000 persons who are subject to final orders of removal. Will the Bureau be able to report on those?

General Wall: (26:51)
It is working very hard to try to report on that subset. Yes.

Justice Kagan: (26:56)
Okay. There are 700,000 DACA recipients. Will the Bureau be able to report on those?

Justice Kagan: (27:02)
Will the Bureau be able to report on those?

General Wall: (27:03)
It is working on that too. We can’t be certain at this point, and we don’t know what the president will decide to do with respect to that set. He has [crosstalk 00:27:12].

Justice Kagan: (27:13)
Obviously you have papers, all kinds of records on those people. So I would think that that sounds pretty feasible to me.

General Wall: (27:22)
But the problem is the matching, Justice Kagan. We have the administrative records. What we don’t know is the number that participated in the census, either through questionnaires or other proxies, and that provided sufficient detail to do the matching. That’s the problem here.

Justice Kagan: (27:37)
Okay. How about this, 3.2 million non detained individuals and removal precedents.

General Wall: (27:43)
It’s the same thing. We have to have reliable information on them and that information has to match up with what they provided to the census.

Justice Kagan: (27:53)
What I’m getting from you is we can get very easily to four or five million people who you have extensive administrative records on. And you’re saying whether it’s a matching problem. So I guess this goes back to Justice Alito’s question. You’re 30 days out. It seems to me, you either know whether you can do matching or you don’t know whether you can do matching. Why the uncertainty on this?

General Wall: (28:17)
Because until you actually compare the one set against the other set, you just don’t know how many hits you get. But again, Justice Kagan, I’d love to move to the merits because if the court decides we’re wrong and that this really is teed up constitutionally, or prudentially, even though there may not be an effect on apportionment. I think that there are good reasons that we haven’t yet talked about why the entire category of illegal aliens shouldn’t be thought to qualify under the inhabitantsy tests.

Justice Kagan: (28:45)
Before we go to the merits, Mr. Wall, how would opposed apportionment challenge of the kind you talked about earlier work? It seems to me that the time period, once it’s post apportionment, is very crunched. States have to do their own redistricting. How exactly does that work? What’s the timeline on it?

General Wall: (29:07)
Here, the timeline’s even easier than a normal case because the district courts have already decided the merit. So I think this is going to move even more quickly than this round of litigation, which obviously only took a few months. But 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 in this court. That could all play itself out fairly quickly.

Justice Kagan: (29:31)
Fairly quickly. What do you think it would play itself out till? When was the end date be?

General Wall: (29:37)
I couldn’t say, Justice Kagan, because it depends on when the report gets to the president, how quickly the district courts enter relief, and then the party that’s agreed comes up to this court. But I would think a matter of a few months.

Justice Kagan: (29:50)
Do you think that given that you’re uncertain when the report will go to the president, this goes back to the Chief Justice’s first question, that there’s something to be said for not following the expedited procedures that you asked us to follow and keeping this around in a normal way and you could tell us whether expedition was necessary when you knew?

General Wall: (30:15)
I think the problem, Justice Kagan, is this is all fairly fast moving. And if the court doesn’t enter some kind of relief, we would face a real prospect that the secretary would never be able to send the report to the president and the president then wouldn’t be able to turn around and send a report to Congress. So, no, there’s a lot of controversy between the parties in that sense, which is we want to be able to have the president exercise his power, and the injunction currently blocks us from doing that. It’s just no longer founded on some injury to the appellees that is sufficient for standing ripeness purposes.

Justice Kagan: (30:52)
Thank you, General.

Chief Justice: (30:52)
Justice Gorsuch?

Justice Gorsuch: (30:52)
Good morning, Mr. Wall. Just to press you a little bit further on what are the practical difficulties and likelihood of actually being able to do the matching process with respect to various categories? It seems like the one common ground is that the 10,000 or whatever number it is currently in ICE detention is something you think will happen. Beyond that can you give us any sense of the difficulties or likelihoods?

General Wall: (31:20)
I can’t, Justice Gorsuch, the Bureau is working very hard. But until they actually do the comparison, we just won’t know how many identifications we’re able to make. And whether that stands to affect the apportionment.

Justice Gorsuch: (31:35)
Is it a reasonable prospect to think that it would be limited to the number of persons currently in ICE detention?

General Wall: (31:43)
I think that’s possible, but it is also very possible that they will be able to do more. We don’t know at this point. I wish I could provide the court with more certainty. I can’t. That’s why we think that the court should vacate the judgment and not get into this. But if the court disagrees, I would love an opportunity to turn to the merits and talk about why I think they can’t satisfy either half of the usual resident test, either the residency or the usual or settled requirements.

Justice Gorsuch: (32:11)
I have a question in an entirely different direction, your colleagues on the other side pointed in a footnote, in their briefs to the Federal Reports Elimination and Sunset Act in the 1990s, which looks like it may have well repealed Section 2. And so are we arguing over the meaning of a statute that doesn’t exist? I had hoped to get some response from the government on that in its reply brief, but didn’t see any. Perhaps I missed it. And what is the government’s view about the status of Section 2? New York suggests, well, maybe it is repealed but to the extent that government wishes to comply with the repealed statute, it has to follow the repealed statutes terms, as one response. Another response is that the only thing repealed were reports and this is a statement. Does the government have any views on any of that?

General Wall: (33:16)
Yes. In our view, it’s not an annual, semi-annual or other periodic report covered by versa the statement, which is why in 2001, in 2011, the Executive Branch sent over the statement and The House reapportioned as the statutes require. It’s never been litigated. I’m not aware if we’ve even ever briefed it, but in our views, there were various things on the clerk’s list that I think clearly do not qualify as the type of report covered by versa. And in our view, this statement under 2-A Subsection A is like those things. It’s not a other periodic report.

Justice Gorsuch: (33:54)
What do we do about the fact that it appears to be expressly referenced by statute in their reports to the president continued the Decennial Census Report section 2-A right there listed.

General Wall: (34:12)
So, just to be more clear, we don’t think the language picked up everything on the clerks list, because there were things on the clerk’s list that wouldn’t qualify. It only picked up things on the clerk’s list that qualify as an annual semi-annual or other periodic report. We don’t-

Justice Gorsuch: (34:26)
Periodic doesn’t include every 10 years? [crosstalk 00:34:30]

General Wall: (34:30)
The other periodic report picks up the statement, which there’s a deadline under the statute, but it’s not as if it has to go over at some set period or on a particular date every time. So we don’t think that statement qualifies.

Justice Gorsuch: (34:47)
Okay. If I were to disagree with you and think that every 10 years does appear to be a regular periodic report specified on a list, what then?

General Wall: (34:59)
There would have to be supplemental briefing from the parties, Justice Gorsuch. It’s not jurisdictional. The parties [crosstalk 00:35:03] addressed it.

Justice Gorsuch: (35:04)
Thank you. Thank you, Mr. Wall.

Chief Justice: (35:05)
Justice Kavanaugh.

Justice Kavanaugh: (35:07)
Thank you, Chief Justice, and good morning, General Wall. You forcefully argue that there’s too much uncertainty, that the dispute will become a concrete Article 3 controversy only after the president transmits the statement, but I want to button up some things on that to make sure we’re on the same page and follow up a bit on what Justice Kagan was asking you.

Justice Kavanaugh: (35:32)
First of all, you’re not saying as judicial review, not now, not ever. You’re just saying not now as I understand it, but as Justice Pryor indicated, the posture this will change after the president transmits the statement. And there’s a question about injunctive relief against the president. So I think you’re 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 unlawfully within the country if we were to issue such an order after the president transmits the statement, is that accurate?

General Wall: (36:19)
Yes.

Justice Kavanaugh: (36:21)
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 Katz as joined by Judge Friedrich was that it will be not possible to exclude all non citizens living unlawfully in the country, because that would require the use of sampling, what the opinion said. And that the presidential memorandum rules out the possibility of using an unlawful method, is that accurate or what’s your response to that?

General Wall: (37:05)
We’re not sampling. This is what I was trying to say to Justice Kagan earlier. We’re taking the records from the administrative agencies and we’re taking the data given by individuals with respect to the census, and we’re comparing them. We’re 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, it’s just not clear what results we’re going to get or whether it’s going to affect the apportionment.

Justice Kavanaugh: (37:36)
Well, is it possible to get the information to exclude all non-citizens 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.

General Wall: (37:54)
No, the latter. It is only possible, the records will only cover particular subset.

Justice Kavanaugh: (37:58)
Okay. So it’s not possible to exclude all non-citizens living unlawfully in the country, correct?

General Wall: (38:07)
No, if you took somebody who crossed the border illegally and was undetected and did not participate in the census, that person might not be found in any administrative record and they wouldn’t be on the other side of the ledger either because they didn’t participate in the census. That person just would not be captured by this process, not even arguably.

Justice Kavanaugh: (38:27)
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 this point. Unlike, for example, a typical agency regulation that might impose some duties or requirements on the plaintiffs, and we allow pre-enforcement challenges. We’ve called that lack of ripeness. We’ve 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?

General Wall: (39:22)
Yes, there is substantial overlap. We’ve framed it as a constitutional matter because we don’t think they satisfy the constitutional minimum, but if you thought they got the toe over that line, then you’d get the same analysis as Judges Katz and Friedrich did as a matter of prudential ripeness. So I agree that there is a lot of overlap and obviously under steel coincident chem, you can do prudential ripeness before the merits because it’s a threshold doctrine. So nothing requires the court to do Article 3 rather than to do it as a prudential matter.

Justice Kavanaugh: (39:54)
Thank you, General.

Chief Justice: (39:55)
Justice Barrett?

Justice Barrett: (39:57)
Good morning, General Wall. I’m going to let you talk about the merits for a minute here. As Justice Pryor said, a lot of the historical evidence and a longstanding practice really cuts against your position. And there’s evidence that in the founding era and inhabitants was a dweller who lives or resides in a place, you do have this Vitel quote that defines an inhabitant as distinguished from a citizen, as a stranger is permitted to settle and stay in the country. Do you think that Vitel quote is your best evidence?

General Wall: (40:29)
Well, if you look only at the founding, I think the Vitel 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 I’d say is, look there isn’t 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 residents or dwelling question in other statutes. And the answer it consistently comes back with is if you’ve entered illegally, you are not treated as if you’re dwelling or residing here. You’re treated as if you’re stopped at the border. And the other side doesn’t really have any answer to why those cases shouldn’t equally apply here and say, “Look, if the test is usual or settle the resident, you’re not thought to be a resident. And even if you are, there’s nothing usual or settled about your residence if your presence is violating federal law and the sovereign hasn’t agreed to let you stay.”

Justice Barrett: (41:23)
But if an undocumented person has been in the country for say 20 years, even if illegally, why would such a person not have a settled residence here?

General Wall: (41:36)
So you take long-term embassy personnel. So somebody who’s worked in an embassy for 15 or 20 years, Justice Barrett, that person certainly has ties to the community. And yet we have excluded them in some past censuses because they’re not the ties just as with illegal aliens, that amount to residents are dwelling or what Franklin calls allegiance or an enduring tie. And so to federal personnel overseas, they’re not residing here. They may spend years at a time abroad, but we still think they have the tie that counts here. And so I’m not disputing at all that illegal aliens form ties to the community in the sense you’re talking about, but they’re not the ties that are sufficient to qualify you within the apportionment base because they don’t count toward residents or dwelling within the meaning of these federal statutes.

Justice Barrett: (42:25)
But you can see that illegal aliens have never been excluded as a category from the census.

General Wall: (42:30)
Well, yes. We have taken account of alienage in certain ways before, but yes, and that’s the best argument on the other side. There is a historical practice. And if we didn’t have Franklin, that could be tougher for us, but we know from Franklin that the fact that you’ve got a fairly unbroken practice doesn’t necessarily mean it’s constitutionally compelled. They need some evidence that that has to be the rule as a constitutional or statutory matter. And that’s what they don’t have. They have a bunch of historical evidence that the founders and the framers of the 14th amendment didn’t want to limit it to citizens or voters completely agreed with all of that. But what they don’t have is any evidence that they specifically wanted to include illegal aliens, because they thought even if you came here in violation of law, you were nevertheless an inhabitant. That’s the very question that in other contexts, the court has answered in the negative by saying you’re not a resident.

Justice Barrett: (43:21)
So it’s just been an unexercised discretion. All along they could have been excluded from the census in the fact that they had not been excluded before doesn’t mean the president can’t make the choice to do so now.

General Wall: (43:31)
Oh, I so, too, and Franklin, Justice Barrett, but I guess I qualify it a little bit for the first half of the nation’s history the question doesn’t come up because you don’t have federal immigration restrictions. And for much of the second half, it doesn’t matter nearly as much as it matters now. So I’ll certainly grant that no president has made this judgment before. No president has ever focused on it before. But I think in order to say, as in Franklin, that the president can’t do this, he can’t include, there was federal overseas personnel, even though they hadn’t been included for a host of censuses, would they need to point to something in the text or the history that clearly mandates that they be included in the apportion debate. And that’s every illegal alien. It’s not only the ones you were talking about that have ties to the community.

General Wall: (44:16)
It’s somebody who’s apprehended at the border and in an ICE detention facility sometimes only for a day or two before being sent back to Mexico or the Northern triangle.

Chief Justice: (44:25)
A minute to wrap up, General Wall.

General Wall: (44:28)
Thank you Mr. Chief justice. So just as I was saying earlier, we think that there are a handful of unknowns here. What it will be feasible for the Bureau to do, whether the president will decide to exclude all of the subsets that are feasible with a memorandum clearly indicates that the president hasn’t made that legal judgment. It’s been a policy call, but not the legal judgment, and the effect on apportionment. And as I said to Justice Kavanaugh, we don’t think it matters whether the court labels that under Article 3 or prudential ripeness, but we’re 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 can’t satisfy either half of the tests. They’re not residents and there’s nothing settled about their residents and they’ve 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: (45:26)
Thank you, General Wall. General Underwood.

General Underwood: (45:30)
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 the lawful immigration status is flatly inconsistent with that command. Our laws reflect a 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 the state. That has always included people who were ineligible to vote, including non citizens. 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 of use counting people for apportionment as finding facts, 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.

General Underwood: (46:30)
The government can do many things to induce undocumented immigrants to leave, but it cannot declare them to be gone when in fact they’re 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 can’t 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 it’s not because undocumented status alone, doesn’t tell us where a person usually resides. This policy ignores the undisputed facts that millions of undocumented immigrants have lived here for decades and have substantial community ties. Their undocumented status doesn’t erase their presence.

Chief Justice: (47:35)
General Underwood, could you tell me, precisely, what the relief is that you seek an order from the court saying what?

General Underwood: (47:44)
Well, an affirmance of the injunction below, which was to declare the policy invalid in violation of law and the constitution as well. What the statute would do. And an injunction against transmitting the information about undocumented persons as part of the report on which…

Chief Justice: (48:07)
Well, that’s the precise issue I want to focus on. It seems to me that you’re asking really for a gag order on the Secretary of Commerce concerning his communications to the president. Let’s 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 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?

General Underwood: (48:42)
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 aren’t just the transmission of information. They operate as steps in the apportionment. [crosstalk 00:22:09].

Chief Justice: (49:06)
Well, but then the president, I would assume, is then free to report to the Congress information for the apportionment. And he can do the math. He can take what the census that the secretary is transmitted, as you would have it, and subtract the number of illegal aliens or sub-categories and use that information, can’t he?

General Underwood: (49:30)
Well, we are not 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 while he would have the information and in principle, he could use it, he couldn’t issue a report to Congress that was in violation of the constitutional [crosstalk 00:49:58].

Chief Justice: (49:57)
Thank you, General. Justice Thomas.

Justice Thomas: (50:00)
Thank you, Mr. Chief Justice. General Underwood, I’m 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 a labeled not the one section 141 report?

General Underwood: (50:26)
Yes. It would not violate the law. It would be a transmission of information.

Justice Thomas: (50:33)
So what does that accomplish? Because I thought that your major concern is the use of that information by the president.

General Underwood: (50:44)
That’s correct. A 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: (51:07)
So I’m trying to… Your argument is that if it’s sent separately, it can’t be used.

General Underwood: (51:15)
In the apportionment. That’s correct. It might be usable for many other things, but not as part of the apportionment.

Justice Thomas: (51:24)
Thank you.

Chief Justice: (51:25)
Justice Pryor.

Justice Pryor: (51:27)
Thank you. I think are there not many statutes which divide funds among the States on the basis of population, and then they say something like, “As shown by the most recent Decennial Census.” Does that tie that to the 141-B report? I think it does. Are there not many instances where it does?

General Underwood: (51:53)
There are many instances where the distribution of funds has to be derived from the census. I suppose we would argue that if the information is used in the census and in the reports that is sent to Congress, it also will have an effect on the distribution of funds. If the information is sent separately, [crosstalk 00:25:23].

Justice Pryor: (52:22)
That’s not what I’m thinking of. I’m thinking of suppose this 141-B report has both the number of illegal immigrants, the illegal aliens, and also the total census. What do you use?

General Underwood: (52:37)
I don’t think it can have both.

Justice Pryor: (52:39)
I know. I didn’t think that was your theory. I thought that’s the government’s theory.

General Underwood: (52:45)
Right.

Justice Pryor: (52:46)
So what happens under their theory?

General Underwood: (52:49)
Well, I don’t 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, it’s separate. And I don’t know.

Justice Pryor: (53:05)
Okay. If we both don’t know, let us go to a different question, which is, I’d like to know what you have to say about Franklin versus Massachusetts.

General Underwood: (53:15)
Well, Franklin, Massachusetts of course said that the secretary has, and the president has some discretion, but it’s not unlimited discretion. Franklin recognized usual residents as the test and then treated overseas government workers like other situations recognized at of 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…

Chief Justice: (53:53)
Justice Alito.

Justice Alito: (53:55)
Thank you. I have two questions that are important to me. I hope I’m going to be able to squeeze them both in, in my time, the first concern.

Speaker 3: (54:03)
… 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 can see that, unless you are asking us to overrule what Franklin said about the President’s directing the Secretary to reform the census, then I don’t really understand where your argument is going. 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 accepted?

General Underwood: (55:03)
The President would, under Franklin, have the ability to direct a reformation of the census. There would be the same question, but it would be a different question, there’s always the question whether that reformation is constitutional or not.

Speaker 3: (55:19)
Yeah, back to the substance of the issue, which I do want to get to, but 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 don’t understand why the situation where both sets of figures are submitted in a single document is any different, it seems like a totally meaningless formality.

General Underwood: (55:51)
It’s not a meaningless formality in the sense that this is the moment in the process when judicial intervention can operate. The problem arises, because of the reluctance of the courts 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: (56:28)
Justice Sotomayor [crosstalk 00:02:31].

Speaker 3: (56:30)
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 the foreign diplomat who was posted here for three years?

General Underwood: (56:57)
No, for several reasons because-

Speaker 3: (57:01)
Okay, then he’s a no. All right? A tourist who’s here on a valid visa?

General Underwood: (57:06)
No.

Speaker 3: (57:07)
A tourist who overstays her visa and is therefore here illegally?

General Underwood: (57:12)
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: (57:26)
Justice Sotomayor? [crosstalk 00:57:29] Justice Sotomayor?

Justice Sotomayor: (57:31)
General, I see this as being very similar to Franklin because I think you’re arguing, and I think the Solicitor General agrees that the President to use only the numbers that are given to him by the Secretary. If the Secretary gives him illegal numbers to exclude, then he can’t use an outside report to exclude those people from the apportionment. Is that correct?

General Underwood: (58:12)
He cannot do an illegal report, yes, and-

Justice Sotomayor: (58:15)
He can’t use a separate report. The tabulation has to provide him with the numbers that he uses. Correct?

General Underwood: (58:23)
Correct.

Justice Sotomayor: (58:25)
So if it is illegal for him to exclude illegal aliens, sorry 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?

General Underwood: (58:45)
Correct.

Justice Sotomayor: (58:47)
So that’s your point, which is, if he’s going to tabulate and exclude illegal aliens, we have to decide 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? That’s the legal question.

General Underwood: (59:09)
Correct.

Justice Sotomayor: (59:11)
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 per Secretary earlier, that says, “This category, I think should not be here for these reasons.” And if the Secretary says, “I’ll 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 shouldn’t permit those illegal aliens, or yes, you should.” Whatever the answer is. Correct?

General Underwood: (59:53)
Agreed. Yes.

Justice Sotomayor: (59:55)
That’s what missing here, which is the President is asking to exclude [inaudible 01:00:02] numbers oF the category of illegal aliens, that of any kind and some of those numbers, legitimately, can not be included, that’s your argument, correct?

General Underwood: (01:00:16)
Yes.

Chief Justice Roberts: (01:00:17)
Justice Kagan?

Justice Kagan: (01:00:20)
General Underwood, if I could take you back to the standing question? This is the way I understood what came out of General Wall’s minutes. The government has tons of [inaudible 01:00:38] tons of people. I mean, we’re not just talking about ICE detainees, by the time you think about DACA recipients and people in removal proceedings, and a number of other categories, you easily get over four million people, but General Wall says that that’s not the problem. The problem is a matching problem. Essentially the department has not yet gone through this process of trying to match those numbers with the answers to the census questionnaire. But I don’t really quite understand how that process works. So I’m wondering if you do, if you can tell me whether you think it’s credible, that the Census Bureau at this point would not know [inaudible 01:01:25] how many people they’ll be able to exclude of all the people that they have administrative records on.

Justice Kagan: (01:01:31)
I guess the second question would be, is that what we should be focused on? Or is that an unimportant question?

General Underwood: (01:01:38)
Well, I am not a master of the technology here. I do know that there is a process by which matching occurs. I cannot opine on how successful they will be. I can 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 four million or so from the count would be enough to take a seat away from one or more States, that speculation at this point… what we have on this side of uncertainty is speculation. We have repeated representations from the Census Bureau and the Department of Justice that they are… they’ve been working on this since July, 2019. They’re 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 isn’t enough here to be the basis for any judicial action.

General Underwood: (01:02:55)
It’s speculation that they won’t 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 there’s more information that would shed some light on this question [crosstalk 01:03:14].

Chief Justice Roberts: (01:03:13)
Justice Gorsuch?

General Underwood: (01:03:14)
Thank you, General.

Justice Gorsuch: (01:03:16)
Good morning, Miss Underwood, if it is a matter of speculation, whether they’re going to be able to include or exclude, why isn’t that a standing problem or a rightness problem now, if we must rule now? [crosstalk 01:03:33] As I understand it, they can’t use statistical sampling. So they’re 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 ICE detention facilities, which would be in the tens of thousands and perhaps not affect any apportionment at all.

General Underwood: (01:04:00)
Well, I think that they’re not saying they’re only going to be able to do ICE detention. They’re saying that that’s a group they already know they’ll be able to do, and that they’re working feverishly to do the same for other groups. We know from the last round of census litigation that they have the ability to do matching. Now I can’t speak to the technology of it, but they were quite confident that they were going to be able to do matching. So it seems-

Justice Gorsuch: (01:04:29)
But Miss Underwood, I guess my question is, you can see that it’s speculative as to how much they’re going to be able to do. Once we’re in that world, then it’s speculative whether there’s going to be any effect on the apportionment. In that world, we have a standing problem, don’t we?

General Underwood: (01:04:49)
Well, I think that’s not quite the world we’re 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 Presidential memorandum and that they are just now saying that they’re not sure how fully they’re going to be able to do it. So I think that’s a substantial risk of injury sufficient for Article Three standing. 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 we have Article Three standing, I think we have a substantial risk.

Justice Gorsuch: (01:05:26)
Thank you!

Chief Justice Roberts: (01:05:27)
Justice Kavanaugh?

Justice Kavanaugh: (01:05:28)
Thank you, Chief Justice and good morning and welcome, General Underwood. As Justice Barrett’s questioning illuminated, I think, you have advanced, forceful, constitutional, and statutory arguments on the merits of a categorical exclusion of all unlawful non-citizens, but I’m not sure that’s going to be the dispute, so I want to explore that. If we said now, as you want us to say that Secretary and the President cannot exclude all non-citizens living here unlawfully, suppose we say that, and then the President excludes not all, but some subsets, then we’ll be right back here with litigation. Correct?

General Underwood: (01:06:14)
Well, I think that what you would have is you would have invalidated this policy and he couldn’t act, and the Secretary couldn’t act pursuant to this policy [crosstalk 00:01:06:25].

Chief Justice Roberts: (01:06:25)
I’m sorry to interrupt. Couldn’t he then substitute a new policy, consistent with a decision on all by saying, “We’re going to include some subsets.” Then there’ll be litigation on that, we’ll be right back here, which is-

General Underwood: (01:06:42)
Perhaps, I mean, now we’re speculating some more about what he might do, I think [crosstalk 01:06:47].

Chief Justice Roberts: (01:06:50)
Sorry to interrupt. But I think the Solicitor General has indicated it’s going to be very difficult, if not impossible, to exclude all. I guess I’m wondering then… It seems like part of this is, and you’ve acknowledged this forthrightly, is the difficulty of an injunction against the President, if we wait to post apportionment, or post transmission, but the President, we’ve assumed in the past, would comply with a declaratory judgment. We’ve said that. The Solicitor General confirmed that today, does that eliminate the problem that has forced or encouraged you to bring this litigation now?

General Underwood: (01:07:37)
Well, it could mitigate it, but I mean, a declaratory judgment action has to be addressed to somebody who can act. I don’t think you would issue a declaratory judgment action against the President. If the Secretary has already done everything he’s going to do, then it’s not clear exactly who the appropriate recipient of that declaration is.

Chief Justice Roberts: (01:08:04)
Justice Barrett?

Justice Barrett: (01:08:06)
Good morning, I have one question, that’s a follow up to Justice Kavanaugh’s question, that has to do with, well, 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 case by case basis about whether such categories should be in or out, doesn’t that cut in favor of waiting, that maybe there’s no injury here because we’re not really sure what the contours of the decision would be?

General Underwood: (01:08:42)
Well, I think I should just object to the idea that the categories are so small that they won’t make a difference and that they would be litigated one by one. I think that the policy that the President articulated is as many as possible. The memorandum whilst, while Mr. Wall said he was going to exercise… the President would exercise discretion, after this information came in, the memo says, “To the maximum extent of the President’s discretion.” So the policy is clearly not to identify subcategories, it’s to do as much as possible. The categories that are available are just going to be whatever they can find. I think this court can speak to that policy now. Is it likely that they would come back with other new policies, perhaps? That would always be true. I don’t think that’s a reason not to decide the question this year now.

Justice Barrett: (01:09:47)
What if we say that he cannot categorically exclude all illegal aliens? He says, “Fine. I’m not going to do that. I’m going to count everyone who’s in an ICE detention facility, everyone who’s in removal proceedings and maybe say all DACA recipients, but I agree, I have reasons for thinking each of these don’t satisfy the inhabitancy requirement.” Wouldn’t you just be back litigating those specific issues?

General Underwood: (01:10:11)
Yes, I think we would. Yes.

Justice Barrett: (01:10:13)
Okay. Thank you, my time’s up.

Chief Justice Roberts: (01:10:15)
A minute to wrap up, General Underwood.

General Underwood: (01:10:21)
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 nation’s history rejects 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 non-voting, their presence requires attention from the government and the need for representatives to give that attention. That is the rationale, 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 the policy that would refuse to count millions of people who’ve 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: (01:11:22)
Thank you General. Mr. [Ho 00:17:31]?

Mr. Ho: (01:11:25)
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 it’s easy to risk changing the apportionment. In Utah versus 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. That difference was enough to shift one seat from the ladder to the former. We know that 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 there’s substantial risk of injury now, and it would be better to resolve this issue now, rather than in six months during the redistricting process, which could be disruptive.

Chief Justice Roberts: (01:12:36)
Mr. Ho, what is the problem with post-apportionment [inaudible 01:12:45] (silence).

Speaker 4: (01:16:23)
… inhabitant, many of those people would qualify. You can be a lawful permanent resident and be in ICE 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 [crosstalk 00:01:16:42].

Speaker 2: (01:16:40)
… suppose you were to change it slightly and say, “We are going to exclude, not count people who are under legal order to remove.”

Speaker 4: (01:16:47)
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 Appeals. 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-

Speaker 2: (01:17:05)
So what line would you draw between those whom could legally deport, not count, and those whom they can’t?

Speaker 4: (01:17:11)
Well, the constitutional standard, as this court explained in Franklin is usual residence. The plain meaning of that term turns on whether or not someone commonly resides in the United States, it doesn’t turn on their lawful immigration status. That term, usual residence, was defined at the founding, as where a person commonly lives or sleeps. That’s in both the Johnson and the Bailey dictionaries that we cite. If you look at the dictionary that the government relies on, Webster’s 1828, which they rely on for the definition of inhabitant, it defines residents as distinct from nationality, offering the example of the residents of an American in France or Italy for a year. So residents doesn’t admit of exclusions on the basis of lawful immigration status, it turns on whether a person’s physical presence is transient or not.

Chief Justice Roberts: (01:18:04)
Justice Alito?

Justice Alito: (01:18:06)
I’m going to try and see if I can get you to answer Justice Breyer’s question. Last term, we had a case involving an alien, Mr. Feris [Fagium 01:18:14], who crossed the border unlawfully and was almost immediately apprehended and then placed in detention. Would he have to be counted?

Speaker 4: (01:18:26)
Well, under the Bureau’s current residence rules he would, but I just would note that the court’s holding in [inaudible 01:18:33] again, was about whether or not someone had entered for purposes of-

Justice Alito: (01:18:40)
No, I understand that. So is it your position that every single alien who is in the United States on census day must be counted?

Speaker 4: (01:18:52)
I would say that every person who’s an alien in the United States 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 1st on census day to see family or something like that, that person’s not counted in the census, I think the same [crosstalk 01:19:14].

Justice Alito: (01:19:15)
You’re saying for each of these people, there has to be a very fact-specific determination about whether they are a resident or not, is that administrable at all?

Speaker 4: (01:19:27)
Well, the rules that were administered by the Federal Marshals in the first sentence in 1790, Justice Alito, were to ask whether or not a person usually resides at the dwelling that’s being visited. If not, where do they actually usually reside? If the person has no stable residence, to count them simply where they’re found on April 1st, that’s 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 Constitution, one’s statutory provisions don’t turn on lawful immigration status, they turn on the facticity of a person’s residential circumstance.

Justice Alito: (01:20:15)
Thank you!

Chief Justice Roberts: (01:20:15)
Justice Sotomayor?

Justice Sotomayor: (01:20:19)
Mr. Ho, I’d like to follow up on the effect of waiting in this case, is the waiting problem that… the census apportionment doesn’t happen till April 1st, is that correct?

Mr. Ho: (01:20:40)
No, Justice Sotomayor, the Commerce Secretary’s report is due to the President on December 31st. Then the President must submit a report to Congress within seven days of the beginning of Congress’ term. That’s either on January 10th or 11th, and then the Clerk of the House must within 15 days of that send certificates to each of the States and notifying them how many seats in-

Dale Ho: (01:21:02)
… to each of the states notifying them how many seats in Congress each state will get. So, we’re talking about-

Justice Sotomayor: (01:21:06)
So, the apportionment already begins once the report is issued, and so we would have to unscramble the egg to have-

Dale Ho: (01:21:15)
I think that’s right.

Justice Sotomayor: (01:21:17)
All right. 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 simply that not counting illegal aliens because they’re undocumented, that that is a violation of the statute and the Constitution. Is that enough relief to you?

Dale Ho: (01:21:49)
I think [inaudible 01:21:50], Justice Sotomayor, because the policy that we’re challenging is broad and unequivocal. We’re 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: (01:22:08)
Assume I even agree with that, however. What does that mean practically? What does the secretary do? He doesn’t send anything? How about the president comes back and says, “Just send it to me on these categories.” What happens then?

Dale Ho: (01:22:28)
The injunction prohibits merely the inclusion of information to implement the existing presidential memorandum in the secretary’s 141 report for apportionment. It’s not a gag order on the commerce secretary. There’s nothing that would prohibit the commerce secretary from publishing various counts of subcategories of undocumented immigrants on the internet. That’s not something that’s prohibited by the injunction.

Chief Justice Roberts: (01:22:54)
Justice Kagan?

Justice Kagan: (01:22:57)
Mr. Ho, I guess I would like you to comment on General Wall’s view of the feasibility of the matching process, 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 ICE detainees but isn’t sure it can do that matching with respect to categories of people for whom it has equally good administrative records.

Dale Ho: (01:23:33)
Well, Justice Kagan, I’m not a social scientist, but here’s 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 a half ago, the Census Bureau had determined based on experience that administrative records to which it already had access would enable it to determine citizenship status for approximately 90% of the population.

Dale Ho: (01:24:13)
So we know that the Bureau has a lot of experience with the matching. It can do it for the vast majority of the population already. That’s what the administrative records maintained by the social security administration and other executive branch agencies. They’ve 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, that’s at least a substantial risk of injury because it doesn’t 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: (01:24:55)
Thank you, Mr. Ho.

Chief Justice Roberts: (01:24:57)
Justice Gorsuch?

Justice Gorsuch: (01:24:58)
Thank you, Chief. No questions.

Chief Justice Roberts: (01:25:00)
Justice Kavanaugh?

Justice Kavanaugh: (01:25:02)
Thank you, Chief Justice, and good morning, Mr. Ho. First, I want to make one point in response to something General Underwood said, and I’m hope hoping the solicitor general can address this [inaudible 01:25:14] about the declaratory judgment after an apportionment, who that would be addressed to and how that would work. That’s 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 non-citizens who are here unlawfully to the maximum extent under law is what you said, and you quoted that a couple of times. You also referenced, I think this is important, the memorandum says feasible, and I think the argument is revealed as the debriefs, but the argument even more clearly, it’s going to be very difficult … not going to be particularly feasible to exclude all of the non-citizens. We’re going to be left with categories. How do we think about feasibility?

Dale Ho: (01:26:17)
Well, the government’s identified three subcategories of undocumented immigrants in the last few pages of their reply brief, so I assume those are the ones that the government thinks are the most feasible. But each of those groups I think is over-broad. Those groups are heterogeneous, and to exclude any of them would violate constitutional and statutory commands. There’s people detained at the border, but as I mentioned, a lot of people [crosstalk 01:26:44].

Justice Kavanaugh: (01:26:44)
I’m sorry to interrupt, but could we rule to that effect now? We really haven’t had briefing and argument on the particular subcategories.

Dale Ho: (01:26:53)
I’d agree that to the extent the government wants to rely on the saving this, with respect, 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 there’s nothing that stops this court from ruling on the facial validity of this policy, because it plainly lacks a legitimate sweep. It applies broadly to-

Justice Kavanaugh: (01:27:15)
And then in litigation in January, we would deal with the subcategories. Is that how you foresee this?

Dale Ho: (01:27:20)
If that’s what the president ultimately ends up doing and issues a new memorandum, I think that would be something that we’d have to deal with one way or another because of the injunction In this case that was issued by the district court doesn’t prohibit the exclusion of particular subcategories under a different memo than the blanket categorical one that’s at issue in this case.

Justice Kavanaugh: (01:27:43)
Thank you.

Chief Justice Roberts: (01:27:44)
Justice Barrett?

Justice Barrett: (01:27:45)
Mr. Ho, do you agree that there would be nothing wrong or there would be no legal prohibition against the president issuing a new memo articulating a new basis for excluding subcategories?

Dale Ho: (01:27:59)
Well, the injunction in this case doesn’t preclude the president, Justice Barrett. I don’t commit to being nothing wrong or it not being unlawful. I think we would have to see what the memo does. If it excludes people on the basis of transient residents within the realm of the president’s discretion as this court-

Justice Barrett: (01:28:22)
Let me just clarify. I didn’t 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.

Dale Ho: (01:28:38)
In that hypothetical, Justice Barrett, it wouldn’t just be a new rationale. It would be an entirely new policy with a different scope in addition to different reasoning, so-

Justice Barrett: (01:28:49)
But he could do that, right?

Dale Ho: (01:28:50)
The injunction in this case doesn’t prohibit that. That’s right. Now, whether or not that particular policy would be lawful I think would depend upon the [crosstalk 01:28:58].

Justice Barrett: (01:28:58)
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, it’s just not feasible. We haven’t been able to get the information, so this is why we’re going to exclude those in ICE [inaudible 00:08:09].”

Dale Ho: (01:29:10)
Well, if the reason we’re 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 didn’t matter.

Justice Barrett: (01:29:22)
Right, but that … Excuse me, Mr. Ho. But in that instance, you’re saying that the policy itself would be unlawful, but you’re 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?

Dale Ho: (01:29:39)
Yes. Of course, that’s right, Justice Barrett, because the injunction below is specific to the policy that’s been issued and it’s categorical nature.

Justice Barrett: (01:29:47)
Thank you, Mr. Ho.

Chief Justice Roberts: (01:29:48)
A minute to wrap up, Mr. Ho?

Dale Ho: (01:29:50)
In closing, Your Honors, no court, no Congress and no executive branch before now has ever [inaudible 01:29:57] undocumented immigrants could be excluded from the whole number of persons in each state. In 1868, the 14th Amendment based apportionment on person, not citizens, specifically to embrace the entire immigrant population and to secure ratification by states with a 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 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. They’re our neighbors, our coworkers, and our family members. They are usual residents under any plausible definition of that term.

Chief Justice Roberts: (01:30:57)
Thank you, council. Rebuttal, General Wall?

General Wall: (01:31:01)
Thank you Mr. Chief Justice. So as I think appellee’s response has confirmed, there’s 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 timeline in January, and I don’t think prudential ripeness should be used to await a ripe claim that could run out the clock on the kind of statement to Congress.

General Wall: (01:31:32)
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 ICE facilities, those who’ve committed crimes and are subject to final orders of removal, and those who have overstayed visas. The president could decide that it’s consistent with his discretion, as the memo says, to exclude those categories from the apportion phase. The question then is do they have an enduring tie under Franklin? They don’t. They don’t have a tie. We know that from Kaplan, and even if they do, it’s not enduring because they can be removed.

General Wall: (01:32:06)
The other side’s test, which they haven’t spent a lot of time descending today, is where you live or sleep most of the time, but that doesn’t fit long-term embassy personnel, federal personnel overseas, even college and boarding school students or members of Congress. The test isn’t just where you laid your head at night. It is, as Franklin says, where you have allegiance or an enduring tie, and there’s no coherent theory of political representation that says every illegal alien, no matter how little time they’ve been here, or no matter that they are imminently facing removal as a usual or settled resident. It’s the sovereign’s prerogative to define the political community, as Thuraissigiam says.

General Wall: (01:32:42)
And the other side is left to say, “Look, this is just what the founders wanted,” but they don’t 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. [inaudible 01:33:04] that would open up the possibility of post-apportionment litigation in the event, that there is an effect on a portion that or funding, and if appellees prevail in that litigation on the basis of whatever categories are excluded, and they then [inaudible 01:33:19] as-applied challenges, they would be asking for the same relief as in Franklin. They’d be asking for a declaratory judgment against the secretary of commerce to reform his Section 141 report.

General Wall: (01:33:29)
It would not be a declaratory judgment against the president. Franklin doesn’t allow that, but [inaudible 01:33:34] us that we assume that the president will comply with that judgment. There’s no reason to form a different assumption here. The president would comply with a post-apportionment 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 judgements and the parallel cases.

Chief Justice Roberts: (01:34:07)
Thank you, General. The case is submitted. (silence).

Chief Justice Roberts: (01:37:14)
We’ll hear argument next in case 1973, Van Buren v. United States. Mr. Fisher?

Mr. Fisher: (01:37:21)
Mr. Chief justice, and may it please the court. The CFAA is an anti-hacking statute. It prohibits obtaining information from a computer without authorization, and to ensure comprehensive coverage, the statute also prohibits “exceeding authorized access.” As Judge Kozinski put it, this ensures that the statute covers not just outside, but also inside hackers. In this case, however, the government seeks to transform the supplemental prong of the CFAA into an entirely different prohibition. In the government’s view, this prong covers obtaining any information via computer that the accessor is not entitled “under the circumstances” to obtain.

Mr. Fisher: (01:38:01)
It is no overstatement to say that this construction would brand most Americans criminals on a daily basis. The scenarios are practically limitless, but a few examples will suffice. Imagine a secretary whose employee handbook says that her email or Zoom account may be used only for [inaudible 01:38:16]. Or, consider a person using a dating website where users may not include false information on their profiles to obtain information about potential mates. Or, think of a law student who was issued login credentials for Westlaw or Lexis for educational use only. If the government is right then a computer user who disregards any of these stated use restrictions commits a federal crime. For example, any employee who used a Zoom account over Thanksgiving to connect with distant relatives would be subject to the grace of federal prosecutors.

Mr. Fisher: (01:38:47)
The main argument the government offers response to that startling result is that a single two letter word in the CFAA’s definition of exceeds authorized access, the term “so” demands it, but that word requires no such thing. The word simply clarifies that the user must be prohibited from obtaining the information merely via computer. It relieves the government of having to negate every possible alternative means by which the defendant might permissibly have obtained the information at issue, but that is all of the word does. It does not transform the CFAA into a sweeping police mandate. The court should reverse. And I’m happy to take up any questions.

Chief Justice Roberts: (01:39:26)
Mr. Fisher, in Musacchio v. United States, this is what we said. That statute provides two ways of committing the crime of improperly accessing a protected computer, obtaining access without authorization, and obtaining access with authorization, but then using that access improperly. You didn’t mention that case in your opening brief. The government relied on it. You didn’t mention it in your reply brief. I wonder what your answer to that quote is.

Mr. Fisher: (01:40:00)
Mr. Chief Justice, my understanding in that case was the court was similarly giving a thumbnail summary of how the statute works. Of course, the question presented here was not presented there. In fact, not even the exceeds authorized access prong was at issue there in the conspiracy issue the court reached. I understood what the court to be doing in that summary simply to be using the word improperly as a shorthand for whatever it is that the exceeds authorized access prong prohibits, and then moving and moving right along.

Chief Justice Roberts: (01:40:29)
Well, but that’s not what it says. It says, and this seems to me to go to the point at issue here, that the second way you can violate it is by obtaining access with authorization, but then using that access improperly.

Mr. Fisher: (01:40:44)
Well, Mr. Chief-

Chief Justice Roberts: (01:40:45)
Go ahead.

Mr. Fisher: (01:40:45)
I’m sorry. I think my answer would simply be just to look at the words of the statute, and I think the definition of exceeds authorized access doesn’t talk about improper use. It talks about obtaining information that the accessor is not entitled so to obtain, and as we’ve explained in our papers, we think the definition of that term leaves out improper purposes because we know Congress, in fact, had those words [inaudible 01:41:10] provision of the statute, and they took them out in 1986. And we know from other enactments that we’ve decided, for example, on page 19 of our blue brief, that when Congress wants to criminalize or otherwise prohibit improper use or unauthorized purposes, it does so expressly.

Chief Justice Roberts: (01:41:29)
Just to make sure I have your interpretation correct, if a bank has a policy, barring employees from accessing Facebook, an employee exceeds their authorized access and would be covered if she goes on to Facebook, but it wouldn’t be a violation if she used that access to look up customer’s social security numbers and sell them to a third party, right?

Mr. Fisher: (01:41:59)
I’m not sure I follow, Mr. Chief Justice. I think my position is that it would not violate the CFAA for the employee to go on Facebook. If you’re asking me about the social security numbers, for example, it would depend on whether the employee actually had access to that information. As we explained in our brief, if that employee has to use certain login credentials of somebody else’s, for example, to get that information, that would be a violation of statute.

Chief Justice Roberts: (01:42:28)
Thank you.