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FEDERATION v. KLUTZNICK

February 26, 1980

FEDERATION FOR AMERICAN IMMIGRATION REFORM (FAIR), ET AL., Plaintiffs,
v.
PHILIP M. KLUTZNICK, SECRETARY OF COMMERCE, ET AL., Defendants.



The opinion of the court was delivered by: PARKER

This court is convened as a three-judge court to consider the constitutionality of the 1980 census, due to be conducted within a few weeks, insofar as it will fail to establish the number of illegal aliens in the country, or the states and districts within which they live. The failure to undertake this effort, plaintiffs *fn1" allege, will result in the inclusion of a large but presently unascertainable number of illegal aliens in the population figures which form the basis for the apportionment of United States Representatives among the states, the apportionment by many states of their congressional and state officials among districts, and the distribution of federal funds for a variety of programs. The exclusion of illegal aliens from the apportionment population base is mandated, they contend, by the Constitution, which assertedly contemplates that only lawful residents should be included in the population figures from which apportionment is made. Since current estimates indicate that the bulk of illegal aliens live in a relatively few states, and further within a relatively few cities within those states, undifferentiated inclusion of illegal aliens in the general population figures will result in disproportionate allocations to those states and regions of both congressional Representatives and federal funds distributed on the basis of population. Thus, the plaintiffs allege, the votes of persons in some states or regions will be diluted in comparison to those in the states and regions with a large illegal alien population, and those same persons may, as residents of the disadvantaged states or regions, also receive a lesser share of federal monies.

We conclude that we lack jurisdiction to decide the merits of the case because the plaintiffs lack standing to raise the issue, and we therefore grant summary judgment to the defendants. *fn2"

 I. The Census and the Constitution: The Positions of the Parties

 The 1980 decennial census, scheduled to commence April 1, 1980, will be the twentieth effort to enumerate the population of the United States, pursuant to constitutional and statutory command, for the principal purpose of determining the number of Representatives which each state is entitled to send to the United States House of Representatives. Article I, section 2, clause 3, of the Constitution provides:

 
Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

 With the abolition of slavery, the formula for apportionment was revised. The fourteenth amendment modified the first sentence of article I, section 2, clause 3, to provide:

 
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

 The most recent Census Act, 13 U.S.C. §§ 1 et seq., adopted in 1976, charges the Secretary of Commerce with the responsibility of conducting the census, calculating the number of Representatives to which each state is entitled, and transmitting those figures to the President, who then, pursuant to the mandate of 2 U.S.C. § 2a, delivers them to the Clerk of the House of Representatives, who officially notifies each state of the size of its delegation. The allocation of Representatives is accomplished pursuant to a formula known as the "method of equal proportions," which, it has been determined by Congress, results in an allocation of Representatives most nearly proportional to the actual population figures of the several states. Id.

 The census figures are also used for a variety of other purposes. Most relevant to this lawsuit is the fact that many states use the figures as the basis for their own internal apportionment of state and local governmental bodies, and Congress requires the use of the figures as a basis for distribution of federal funds under a number of financial assistance statutes. *fn3"

  The population base used for apportionment purposes consists of a straightforward head count, as accurate as is reasonably possible, of all persons residing within a state on April 1. *fn4" This has been the practice since the first census in 1790; everyone is counted except foreign diplomatic personnel living on embassy grounds (which is considered "foreign soil," and thus not within any state) and foreign tourists, who do not "reside" here. The Census Bureau intends to make no effort to count separately the number of illegal aliens currently resident in the country, though it has undertaken a substantial effort to minimize undercounting of the minority groups which are likely to include illegal aliens. *fn5"

 According to the plaintiffs, the number of illegal aliens within our boundaries has skyrocketed in the last decade. While no accurate data is available, most present estimates of their numbers range between three and eight million. *fn6" This is a large enough population that, plaintiffs allege, including illegal aliens in the apportionment base could cause a shift between states of between one and sixteen congressional seats, depending on concentrations in particular states and cities.

 The constitutional core of plaintiffs' argument is that the phrase, "the whole number of persons," does not, in historical context, include illegal aliens, though they agree that the concept includes all lawful residents, citizen and alien alike. Their argument proceeds along the following lines. The concept of illegal aliens was unknown to the Framers; there were no illegal aliens for nearly a century thereafter when the first act excluding certain aliens (prostitutes and convicts) was passed. Act of March 3, 1875, 18 Stat. 477. Arguing that an intent to grant representation to persons unlawfully within the country therefore cannot logically be attributed to the Framers, the plaintiffs contend that inclusion of illegal aliens in fact defeats the purpose of apportionment; equal representation for equal numbers of "people of the United States." They request declaratory and injunctive relief, requiring the Census Bureau to use its "best efforts" to count illegal aliens separately and exclude them from the apportionment base.

 The Bureau responds that it is constitutionally required to include all persons, including illegal aliens, in the apportionment base, insofar as an accurate count is reasonably possible. Furthermore, as a practical matter, it contends accurate methods to count illegal aliens do not presently exist, and would take months to develop, if it could be done at all. Intervenor New York State and amicus Mexican-American Legal Defense and Educational Fund argue that obtaining even a reasonably accurate count of the total population would be impossible if a simultaneous effort were made to count illegal aliens separately. The two goals are incompatible, according to the Bureau; any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count. Obtaining the cooperation of a suspicious and fearful population would be impossible if the group being counted perceived any possibility of the information being used against them. Questions as to citizenship are particularly sensitive in minority communities and would inevitably trigger hostility, resentment and refusal to cooperate. The Census Bureau's representations in this regard are supported by the amicus brief of the Mexican-American Fund, which has described for us the fears of persecution, particularly in Hispanic communities which it says would be exacerbated by the relief sought by the plaintiffs.

 II. Standing as a Jurisdictional Principle

 As a court of limited jurisdiction, our threshold inquiry must be to ensure that we are presented with a justiciable case, a "case or controversy" within the meaning of Article III. Part of the inquiry into whether a "case or controversy" exists must focus on whether any of the plaintiffs here have standing to present the issue discussed above. Standing is a complex issue, embodying both constitutional and prudential limitations on the exercise of the power of a federal court, but the initial question is whether the plaintiffs have established the indispensable constitutional minimum which must be present in every case, a concrete injury suffered personally by the party seeking relief. While the plaintiff need only allege "an identifiable trifle" of injury to overcome the constitutional barrier to invocation of the power of the courts, United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973), the Supreme Court has emphatically held that there is no such thing as "citizen standing" or "issue standing." Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974). Concern with or interest in an issue is simply not enough to entitle a litigant to demand resolution of a legal issue.

 On the other hand, the mere fact that the injury is a small one, suffered generally by a large number of people, poses no absolute constitutional *fn7" barrier to standing, so long as the plaintiff is able to establish that he or she personally has suffered the claimed injury. There is no doubt that individuals claiming that their votes are diluted because their Representative represents a greater number of constituents than do other Representatives in the same assembly have standing to challenge the apportionment scheme. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). In such a case, the question is "whether the claims of malapportionment . . . are in fact made by plaintiffs whose representation would be improved if those claims were to prevail." Ripon Society v. Nat'l Rep. Party, 173 U.S.App.D.C. 350, 355, 525 F.2d 567, 572 (1975) (en banc), cert. denied, 424 U.S. 933, 96 S. Ct. 1147, 47 L. Ed. 2d 341, 96 S. Ct. 1148 (1976). As expressed by the court in Baker v. Carr, assuming that the plaintiffs' allegations assert a legally cognizable injury, it is enough for standing purposes that the plaintiffs "are among those who have sustained it." 369 U.S. at 208, 82 S. Ct. at 705.

 In numerous cases in the Supreme Court deciding issues of standing, the same fundamental proposition is emphasized. A party who is unable to demonstrate that an interest of his or her own is at stake always lacks standing. We find that principle ...


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