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Annotated Guide to the Amicus Briefs in the Census Exclusion Memo Case

As the Supreme Court takes up challenges to President Trump’s Exclusion Memorandum, over 25 friend-of-the-court briefs have been filed.

Last Updated: November 19, 2020
Published: November 19, 2020

On Novem­ber 30, 2020, the Supreme Court will hear oral argu­ment in Trump v. New York. The case concerns a chal­lenge to Pres­id­ent Trump’s “Exclu­sion Memor­andum,” which attempts to remove undoc­u­mented immig­rants from the state-popu­la­tion totals that the Census Bureau produces to reap­por­tion seats in the U.S. House of Repres­ent­at­ives among the states.

The Court has received over 25 friend-of-the-court briefs from an array of civil rights groups, current and former federal offi­cials, state and local govern­ments, schol­ars, busi­nesses, and others.

To help sort through the filings, the Bren­nan Center has prepared this annot­ated guide summar­iz­ing each brief’s most prom­in­ent or unique points.

For more inform­a­tion on census-related litig­a­tion, visit our regu­larly updated case pages and calen­dar of upcom­ing hear­ings and dead­lines. And for the latest on other chal­lenges facing the 2020 Census, visit our census resource page.

Briefs Discuss­ing the History of the Census and Appor­tion­ment

Census Histor­i­ans and Social Scient­ists in Support of Appellees

Summary: This brief, filed by a group of prom­in­ent census histor­i­ans and social scient­ists, explains that the census histor­ic­ally has been a meas­ure of popu­la­tion, not polit­ical member­ship. As such, the brief contin­ues, the popu­la­tion base used for appor­tion­ment has—­for the entire history of the census—in­cluded all persons resid­ing in the United States without regard to citizen­ship or immig­ra­tion status. The brief addi­tion­ally provides histor­ical evid­ence that both the Framers and the drafters of the Four­teenth Amend­ment inten­ded an inclus­ive appor­tion­ment base, and that later Congresses reaf­firmed this prin­ciple by repeatedly reject­ing as uncon­sti­tu­tional propos­als to exclude noncit­izen resid­ents. The law firms Cravath, Swain, and Moore LLP and Haynes and Boone LLP are co-coun­sel on this brief.

Michael L. Rosin in Support of Appellees

Summary: This brief, filed by a scholar of congres­sional appor­tion­ment and the Elect­oral College, argues that the Thirty-Ninth Congress delib­er­ately designed the Four­teenth Amend­ment to require an “inclus­ive” appor­tion­ment basis of all people, regard­less of their citizen­ship status. The brief draws upon evid­ence relat­ing to the draft­ing of both the Enumer­a­tion Clause, as amended by the Four­teenth Amend­ment, and the Penalty Clause. The law firm Stris & Maher LLP is coun­sel on this brief.

Ilya Somin and Sanford Levin­son in Support of Appellees

Summary: This brief, filed by legal schol­ars, argues that the original mean­ing of the Census Clause required all persons to be enumer­ated for appor­tion­ment purposes. The brief addi­tion­ally high­lights that virtual repres­ent­a­tion of nonvoter­s—in­clud­ing noncit­izens who reside in the United States—has always been a feature of the Consti­tu­tion. The law firm Fresh­fields Bruck­haus Deringer US LLP is coun­sel for the brief.

Dr. John S. Baker, Jr. in Support of Appel­lants

Summary: This brief, filed by a law professor, contends that the original mean­ing of the Enumer­a­tion Clause and histor­ical census prac­tice do not support count­ing all people, regard­less of their citizen­ship status, for appor­tion­ment purposes and that doing so viol­ates the “one person, one vote” prin­ciple. Dr. John S. Baker and the Center for Consti­tu­tional Juris­pru­dence are co-coun­sel for this brief.

Briefs Discuss­ing the Legal, Moral, and Prac­tical Flaws of the Exclu­sion Memor­andum

The National Congress of Amer­ican Indi­ans in Support of Appellees

Summary: This brief, filed by the National Congress of Amer­ican Indi­ans, explains that “Indi­ans not taxed” are the only people the Consti­tu­tion’s text excludes from appor­tion­ment, and undoc­u­mented people are not—nor are they analog­ous to—In­di­ans not taxed. The brief addi­tion­ally discusses the federal govern­ment’s histor­ical attempts to deny Indi­ans legal person­hood and argues that the Trump admin­is­tra­tion’s attempt to deny undoc­u­mented people’s legal person­hood is simil­arly unlaw­ful and immoral. The Native Amer­ican Rights Fund and the NCAI Fund are co-coun­sel for the brief.

Latino­Justice PRLDEF, et al. in Support of Appellees

Summary: This brief, filed on behalf of Latino­Justice PRLDEF and 12 Latino community organ­iz­a­tions, argues that the Trump admin­is­tra­tion’s rationale for exclud­ing undoc­u­mented resid­ents from the appor­tion­ment count rests on a gross mischar­ac­ter­iz­a­tion of their deep and endur­ing ties to the communit­ies in which they live. The brief addi­tion­ally discusses the Trump admin­is­tra­tion’s history of anti-immig­rant policies and rhet­oric, while arguing that the Exclu­sion Memor­andum contin­ues to harm both Latino communit­ies and the broader communit­ies of which they are a part. The law firm Clif­ford Chance LLP and Latino­Justice PRLDEF are co-coun­sel on this brief.

Local Govern­ments in Support of Appellees

Summary: This brief—­filed by local juris­dic­tions that collect­ively repres­ent several million resid­ent­s—ar­gues that the Exclu­sion Memor­andum’s determ­in­a­tion that undoc­u­mented people are not “inhab­it­ants” in a state is incom­pat­ible with their long­stand­ing member­ship and parti­cip­a­tion in their communit­ies. The Office of the County Coun­sel for the County of Santa Clara, CA, is co-coun­sel for this brief with attor­neys for the Counties of Alameda, CA, Cook, IL, Cameron, TX, Dallas, TX, and Travis, TX; the Cities of Alameda, Oakland, Sacra­mento, Santa Cruz, and Santa Monica, CA; and the Los Angeles Unified School District.

NAACP Legal Defense and Educa­tional Fund in Support of Appellees

Summary: This brief—­filed by the NAACP Legal Defense and Educa­tional Fund—­ex­plains that a key object­ive of the Four­teenth Amend­ment was ensur­ing that Black people had equal polit­ical repres­ent­a­tion after decades of the census count­ing enslaved Black people as less than full humans. It further explains that the Exclu­sion Memor­andum is incom­pat­ible with this consti­tu­tional object­ive because it is a purpose­ful attempt by the Trump admin­is­tra­tion to limit the polit­ical repres­ent­a­tion of people of color, includ­ing Black people. NAACP LDF and the law firm Milbank LLP are co-coun­sel for this brief.

United States Confer­ence of Cath­olic Bish­ops, et al. in Support of Appellees

Summary: This brief, filed on the behalf of several Cath­olic organ­iz­a­tions, argues that the Exclu­sion Memor­andum repres­ents an unjust and illegal attempt to strip undoc­u­mented people of their legal person­hood. The brief further discusses how the Memor­andum will impede the Cath­olic Church’s abil­ity to provide social services in poor and vulner­able communit­ies, includ­ing by creat­ing misal­loc­a­tions of federal funds for food assist­ance and public health programs. The law firm Harris, Wilt­shire and Gran­nis LLP is coun­sel for this brief.

Briefs Discuss­ing the Court’s Power to Hear and Decide the Case

City of San Jose, et al. in Support of Appellees

Summary: This brief, filed by the plaintiffs in a chal­lenge to the Exclu­sion Memor­andum in Cali­for­nia federal court, draws upon recent rulings in related cases to demon­strate that the plaintiffs have stand­ing to chal­lenge the Memor­andum. As the brief argues, the New York plaintiffs face a substan­tial risk of harm if the Trump admin­is­tra­tion imple­ments the Memor­andum, in the form of lost congres­sional seats and decreased federal fund­ing. The brief further contends that the Court should not delay its review of the case until 2021 because that would create confu­sion for the congres­sional appor­tion­ment and complic­ate state-level redis­trict­ing. The law firm Latham and Watkins and the Lawyers’ Commit­tee for Civil Rights Under Law are co-coun­sel for the brief.

The State of Cali­for­nia, et al. in Support of Support of Appellees

Summary: This brief, filed by the plaintiffs in another Cali­for­nia lawsuit chal­len­ging the Exclu­sion Memor­andum, relies on evid­ence and rulings from their case to show that the Court has juris­dic­tion to hear this case and should resolve it prior to reap­por­tion­ment in early 2021. The State of Cali­for­nia Depart­ment of Justice is co-coun­sel for this brief along with attor­neys for the Cali­for­nia Citizens Redis­trict­ing Commis­sion, County of Los Angeles, CA, the Cities of Long Beach, Los Angeles, and Oakland, CA, and the Los Angeles Unified School District.

Common Cause, et al. in Support of Appellees

Summary: This brief, filed by plaintiffs in a lawsuit chal­len­ging the Exclu­sion Memor­andum in Wash­ing­ton, D.C., urges the Court to consider the rulings of all three federal courts that have already concluded that the Memor­andum is unlaw­ful. The brief partic­u­larly high­lights the contri­bu­tions that opin­ions in related cases make to the proper analysis of threshold issues in this case, such as ripe­ness and stand­ing. The law firms Patter­son Belknap Webb & Tyler LLP, Bondur­ant Mixson & Elmore LLP, and McDer­mott Will & Emery are co-coun­sel on this brief.

Eagle Forum Educa­tion and Legal Defense Fund in Support of Appel­lants 

Summary: This brief, filed by the Eagle Forum Educa­tion and Legal Defense Fund, argues that the federal courts do not have juris­dic­tion to hear this case. Lawrence J. Joseph is coun­sel for this brief.

Briefs Discuss­ing the Consti­tu­tional and Stat­utory Frame­works for Appor­tion­ment

United States House of Repres­ent­at­ives in Support of Appellees

Summary: This brief, filed by the U.S. House of Repres­ent­at­ives, explains how all three branches of the federal govern­ment have consist­ently under­stood the Consti­tu­tion to require the enumer­a­tion of all persons for appor­tion­ment purposes and how Congress has imple­men­ted that under­stand­ing through federal stat­utory law. The Office of General Coun­sel for the U.S. House of Repres­ent­at­ives, the Insti­tute for Consti­tu­tional Advocacy and Protec­tion, and the law firms Hogan Lovells US LLP and Debevoise & Plimp­ton, LLP are co-coun­sel for this brief.

Members of Congress in Support of Appellees

Summary: This brief, filed by twenty Demo­cratic Senat­ors, argues that the Framers of the Consti­tu­tion estab­lished total popu­la­tion as the appor­tion­ment base in order to guar­an­tee equal repres­ent­a­tion for equal numbers of people, and that the drafters of the Four­teenth Amend­ment reaf­firmed this prin­ciple. Consequently, the brief asserts, the Pres­id­ent cannot refuse to count people living in the United States simply because of their immig­ra­tion status. The Consti­tu­tional Account­ab­il­ity Center is coun­sel for this brief.

Immig­ra­tion Reform Law Insti­tute in Support of Appel­lants 

Summary: This brief, filed by the Immig­ra­tion Reform Law Insti­tute, contends that the Consti­tu­tion permits the exclu­sion of undoc­u­mented resid­ents from the appor­tion­ment base, since they are not members of our “national polit­ical community.” It further argues that exclud­ing undoc­u­mented immig­rants from appor­tion­ment protects equal repres­ent­a­tion. The Immig­ra­tion Reform Law Insti­tute is coun­sel for this brief.

Alabama in Support of Appel­lants

Summary: This brief, filed by the State of Alabama, claims that the Consti­tu­tion requires exclud­ing undoc­u­mented resid­ents from the appor­tion­ment base because they are not “inhab­it­ants” of the States, and as such, are not members of the polit­ical community entitled to polit­ical repres­ent­a­tion. It further argues that all prior appor­tion­ments that included undoc­u­mented immig­rants viol­ated the Consti­tu­tion. The Office of the Alabama Attor­ney General is coun­sel for this brief.

Morris Jack­son “Mo” Brooks, Jr., Brad­ley Byrne, and Robert Ader­holt in Support of Appel­lants

Summary: This brief, filed by three congress­mem­bers from Alabama, argues that the “one person, one vote” prin­ciple requires the Pres­id­ent to exclude undoc­u­mented immig­rants from the appor­tion­ment base, on the assump­tion that congres­sional districts must contain nearly equal numbers of citizens. Kobach Law LLC, the Office of U.S. Repres­ent­at­ive Brooks, and the Center for Consti­tu­tional Juris­pru­dence are co-coun­sel for this brief. 

Briefs Discuss­ing the Harm­ful Impacts of the Exclu­sion Memor­andum

Dr. Andrew Reamer in Support of Appellees

Summary: This brief, filed by a lead­ing researcher on the link between the census and federal fund­ing formu­las, argues that the Exclu­sion Memor­andum’s direct­ive to change the appor­tion­ment tabu­la­tion may affect the alloc­a­tion of fund­ing under numer­ous stat­utes and negat­ively impact eleven states litig­at­ing this case. The law firm Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP is coun­sel for this brief.

Busi­nesses and Busi­ness Organ­iz­a­tions in Support of Appellees

Summary: This brief, filed by sixteen compan­ies and busi­ness organ­iz­a­tions from a vari­ety of sectors, argues that the Exclu­sion Memor­andum will impair busi­nesses’ access to polit­ical repres­ent­a­tion and, by creat­ing a malap­por­tioned Congress, threaten their abil­ity to mean­ing­fully contrib­ute to congres­sional discus­sions about economic policy. The brief also argues that the Memor­andum, by politi­ciz­ing the census, will reduce the qual­ity of—and busi­nesses’ confid­ence in—data corpor­a­tions normally use for market­ing, product devel­op­ment, and other decision-making. The law firm Gibson, Dunn & Crutcher LLP is coun­sel for this brief.

The National School Boards Asso­ci­ation et al. in Support of Appellees

Summary: This brief, filed by six educa­tional organ­iz­a­tions, urges the Court to inval­id­ate the Exclu­sion Memor­andum in order to guard against future illegal attempts by Pres­id­ents to manip­u­late federal fund­ing streams on which state and local educa­tional agen­cies rely. The organ­iz­a­tions further illus­trate how the Memor­andum’s role in chilling census parti­cip­a­tion threatens federal fund­ing for educa­tional insti­tu­tions serving communit­ies that include undoc­u­mented students. The National School Boards Asso­ci­ation is coun­sel on this brief.

 League of Women Voters of the United States, et al. in Support of Appellees

Summary: This brief, filed by the League of Women Voters of the United States and its Cali­for­nia, Texas, and Flor­ida affil­i­ate chapters, argues that the loss of repres­ent­a­tion and fund­ing that will occur when the Trump admin­is­tra­tion imple­ments the Exclu­sion Memor­andum will not be limited to undoc­u­mented people, but rather extend to the greater communit­ies within which they live. The brief also notes the chilling effect that the Memor­andum will have on parti­cip­a­tion in future censuses if the Court does not block it now. The law firm Pills­bury Winthrop Shaw Pittman LLP is coun­sel for the brief.

Briefs Provid­ing Other Factual or Legal Context

Former Direct­ors of the U.S. Census Bureau in Support of Appellees

Summary: This brief, filed by three former Direct­ors of the U.S. Census Bureau who served under both Repub­lican and Demo­cratic admin­is­tra­tions, explains that the Bureau has always under­stood the law as requir­ing it to count every­one for appor­tion­ment purposes, regard­less of immig­ra­tion status. The brief further shows how the Exclu­sion Memor­andum’s direct­ive to remove undoc­u­mented people devi­ates from proper stat­ist­ical prac­tice. The Direct­ors warn that the Pres­id­ent’s decision to execute the Memor­andum would erode public trust and stake­holder confid­ence by cast­ing the count ulti­mately as a stand­ard­less, partisan exer­cise. The law firm Reed Smith LLP is coun­sel for the brief.

 Faith-Based and Immig­rants’ Rights Organ­iz­a­tions in Support of Appellees

Summary: This brief, filed by the organ­iz­a­tional plaintiffs in Haitian-Amer­ic­ans United v. Trump and two other organ­iz­a­tions, argues that the Depart­ment of Commerce lacks the stat­utory author­ity and expert­ise neces­sary to determ­ine immig­ra­tion status for purposes of exclud­ing undoc­u­mented people from the count. As the brief explains, immig­ra­tion status is mutable, frequently inde­term­in­ate, and subject to revi­sion by the federal govern­ment itself. Allow­ing Pres­id­ents to exclude people on the basis of their citizen­ship status, the brief concludes, thus exposes the census and the broader demo­cratic process to polit­ical games­man­ship that the census was designed to avoid. The law firm Nutter, McCle­nnen, and Fish LLP and Lawyers for Civil Rights are co-coun­sel for the brief.

Louisi­ana and Eight Other States in Support of Appel­lants

Summary: This brief, filed by nine states, argues that neither the Consti­tu­tion, nor federal stat­utory law prohib­its the Pres­id­ent from exclud­ing undoc­u­mented people from the appor­tion­ment. The brief further contends that exclud­ing undoc­u­mented people from the count would serve feder­al­ism object­ives by prevent­ing states from winning addi­tional polit­ical power in Congress by adopt­ing sanc­tu­ary policies. The Louisi­ana Depart­ment of Justice is co-coun­sel for this brief, joined by the Attor­ney Gener­als of Arkan­sas, Kentucky, Missis­sippi, Missouri, Nebraska, South Caro­lina, South Dakota, and West Virginia.

Citizens United, Citizens United Found­a­tion, and the Pres­id­en­tial Coali­tion, LLC in Support of Appel­lants

Summary: This brief—­filed by Citizens United, Citizens United Found­a­tion, and the Pres­id­en­tial Coali­tion—­con­tends that the Consti­tu­tion and federal law grant the Pres­id­ent the author­ity to exclude undoc­u­mented immig­rants from the appor­tion­ment base. It further argues that deny­ing polit­ical repres­ent­a­tion to undoc­u­mented people resid­ing in the United States will protect the nation from improper foreign influ­ence. The law firm William J. Olson, PC and Citizens United are co-coun­sel for this brief.

 Fair Lines Amer­ica Found­a­tion in Support of Neither Party 

Summary: This brief, filed by Fair Lines Amer­ica Found­a­tion, argues that citizen­ship data is import­ant for redis­trict­ing purposes, focus­ing specific­ally on the role such data could play in policy decisions about how to draw elect­oral districts. The law firms Jose­fiak Torch­in­sky PLLC and Dalton L. Oldham, LLC are co-coun­sel for this brief.