# Trump v. New York **592 U.S. 125 (2020), per curiam.** Decided **18 December 2020**. A challenge to the presidential memorandum of **21 July 2020** directing that people without lawful immigration status be excluded, to the maximum extent feasible, from the base used to apportion the House of Representatives after the [[2020 Census]]. The Supreme Court vacated and remanded with instructions to dismiss for lack of jurisdiction, and decided nothing else. ## The memorandum Published at 85 FR 44679, it declared it the policy of the United States "to exclude from the apportionment base aliens who are not in a lawful immigration status," and directed the Secretary of Commerce to supply information permitting the President, "to the extent practicable," to do so in the report required by 13 U.S.C. §141(b). A three-judge district court in the Southern District of New York held on **10 September 2020** that this violated the statutes requiring a count of the "whole number of persons in each State." The Supreme Court noted probable jurisdiction on 16 October, heard argument on 30 November, and ruled eighteen days later. ## The holding — and the non-holding The per curiam opinion is unsigned. Justice Breyer dissented, joined by Sotomayor and Kagan. > [!note] On "6–3" > A per curiam names no votes. The 6–3 split universally reported is an inference from the three noted dissenters, and is almost certainly right, but the opinion does not state it. The Court held the dispute "riddled with contingencies and speculation that impede judicial review." It was not known how many people the administration could actually identify, by what method, or whether the result would shift a single seat. Standing was not shown and the claims were not ripe. The Court was explicit: "we express no view on the merits of the constitutional and related statutory claims presented." ⭐ **What that leaves unresolved** is the whole question: whether "the whole number of persons in each State," in section 2 of the [[Fourteenth Amendment]] and in 2 U.S.C. §2a and 13 U.S.C. §141(b), permits any category of resident to be excluded from apportionment. It has never been decided. ## Aftermath The Census Bureau never produced exclusion data. The apportionment counts delivered on **26 April 2021** counted all residents. Biden's [[Executive Order 13986]], signed 20 January 2021, revoked by name both the July 2020 memorandum and [[Executive Order 13880]], the citizenship-data order that came out of the first case. [[Executive Order 13986]] was itself revoked by [[Executive Order 14148]] on 20 January 2025 and not replaced, so the executive branch now has no standing direction on the question in either direction — the whole-persons rule survives on the [[Fourteenth Amendment]] and 2 U.S.C. §2a alone. ## The pair Read with [[Department of Commerce v. New York]], this case completes a two-part lesson that is mostly about timing. | | *Commerce* (2019) | *Trump* (2020) | |---|---|---| | Attempted | Add a citizenship question | Exclude non-citizens from apportionment | | Court reached | Pretext, under the APA | Nothing — ripeness and standing | | Established | An agency's stated reason must be its real one | A policy announced before it can be operationalized is unreviewable | | Left open | Whether a candid rationale would succeed | Whether exclusion is lawful at all | Jointly: **pretext is policeable; exclusion is untested.** And the second case supplies the roadmap around the first. *Commerce* penalizes a bad explanation, which teaches an administration to give a better one. *Trump* penalizes acting too early, which teaches it to build the data first and decide later — precisely what EO 13880's administrative-records program was for. Challengers who sue before the machinery runs arrive too early; those who wait until apportionment is certified arrive too late. As of 2026 the open questions are the same three: the meaning of "whole number of persons"; whether administrative citizenship files can support exclusion; and whether a 2030 citizenship question with a candid stated rationale would survive review. [[One Person One Vote]] and [[Census Undercount]] carry the downstream consequences. ## See Also - [[Department of Commerce v. New York]] — the 2019 companion - [[One Person One Vote]] — the apportionment-base doctrine, including *Evenwel v. Abbott* - [[Census Undercount]] — differential undercount and its partisan arithmetic - [[How the Census Apportions Congress]] — the mechanism - [[Executive Order 13986]] — the revocation - [[2020 Census]] · [[2030 Census Residence Rule]] — where the question goes next