Justice and the associate justices of the Supreme Court of the United States. All persons having business for the honorable Supreme Court of the United States are advised to give their attention for the court is now sitting. God save the United States and this honorable court. We will hear argument first this morning in case trump vs. New york. Mr. Chief justice and may it please the court, this case should be over. Thatistrict court held illegal aliens would be shielded from her dissipating in the enumeration. But that is now over, and whatever existed has thawed. They pivoted therefore to possible future injuries but as of this very morning, career experts at the Census Bureau confirmed with me that they still dont know even roughly how many illegal aliens they would be able to identify, let alone how their number and geographic concentration might affect the course of it. And if they dont know, certainly the other parties in this case do not. The court therefore should follow the course charted by the District Court last week. Vacate the judgment below, allow the secretary to comply with the memorandum, and allow any effect to be litigated as it normally would be. On the merits, there is no procedural problem with the memorandum. The president may direct two sets of numbers so that he may decide how to exercise whatever discretion he has. Here is fight substantive over how much discretion the president has. History and precedent are all clear about the general test whether one is an inhabitant. 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 31 scheduled to be removed on april 2 as a usual or settle resident of the United States on april 1 flies in the face of this court cases, common sense, and any sound theory and Political Representation. The president has at least some discretion to determine that at least some illegal aliens lack enduring ties to the state which means that the judgment should be reversed. I welcome the court questions. My first question goes to the very first point you raise. 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 . The situation is fairly fluid, mr. Chief justice. Because of the two weeks that we lost to the california injunction and to subsequent issues and processing of the data, we are not currently on by the send a report statutory deadline. Morning, i confirmed 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 related dated to the president in january, so we still do need relief from the court, yes. Sounds like you had a busy morning. What do you mean, pm data . President ial memorandum data. The data the president has requested in order to potentially back out illegal aliens from the Apportionment Base. Question, ifnding the court doesnt intervene now, before the secretary transmits the information to the president , i dont know when the court will be able to intervene. All that would be left after is theansmittal transmittal by the president to the house. If the injury cant be redressed at this point, when could it be . In a post apportionment lawsuit just as in franklin or wisconsin or utah v. Evans. Tothe bureau is able identify enough aliens in the president excludes those categories and that affects the apportionment. A that happens, you have postapportionment challenge just as in franklin for the secretary to revise this report and for the president to send a new report to the house, in effect to redo the apportionment. Isnt that going to be like having to unscramble the eggs . Any one state is going to have ripple effects all across the country and it does seem like it would be more manageable at an earlier stage. Dont want to resist this too much because we would prefer from the courts to reach the merits and uphold the president ial memorandum, we just think for the reasons given by the District Court last week, there are too many unknowns. That there is a bit of an omelette to unscramble, but we do unscramble that in post apportionment lawsuit. And on the flipside, 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 is effectively advisory because the numbers are not large enough to affect the apportionment and other wouldnt bepellees injured. That faces a very serious problem either as article three spending or credential rightness. Should be assumed that we are not going to be talking about all illegal aliens in the country, but some subset, some uncertain subset like the ones in ice detention . Toi think it is very fair say, mr. Chief justice, that the president has not made a determination yet because we dont know what is feasible about excluding all illegal aliens is recognized that some subset are going to be much stronger cases the exercises in discretion than other subsets. Thank you, general. Justice thomas . I would like you just to understandit as you what the respondent is arguing. Injurys the alleged redressed without including or enjoining the president . Because it is actually his decision that it seems they are ultimately concerned about. Fair pointthat is a but the court crossed that bridge in utah over a dissent by Justice Scalia because relief could not run against the president and the court held in utah and no one has asked that decision be overruled that it ,as fair that you can obviously there is no reason to believe that the president would not comply with this Court Judgment either now or any post apportionment contest. In utah, it was my understanding that was actually the census, wasnt it . Yes, it was a challenge to certain procedures being used with respect to the census. It was an ineffective sampling claim. Talking about are something separate from the census. Or am i mistaken . I think that is the other sides argument. They have seized on the fact that we have sometimes used the word census to refer to the counting and socalled look. The Census Bureau came up with a final number in the president essentially accepted that, but then sought to back out illegal aliens and i dont think that is right. The prejudicial memorandum makes clear that he was exercising his authority under franklin to determine the Apportionment Base after the counting. Positiontainly our that this is not something outside that stands apart from the census. Could you actually get the exact same information in a memo that is from the Commerce Department or the Census Bureau that says this is not the section 141 report, but here is what we think those numbers look like . The statutory scheme seems to contemplate that the president will rely on the secretarys report in sending his submission to congress. Franklin says he is entitled to reform the data that the secretary gives him, but i think it would be much more difficult question if he tried to act entirely outside of the process that the statute set out and obviously, he has 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. Well, it just seems to me why theont understand president couldnt get the exact same advice outside of the context of a formal report. Numbers, and then make his decision. Beyond that, the chief justice asked you about the subcategories or subsets of illegal aliens. Could you give us your idea of what the president means generically by illegal alien . Who areans people present in this country unlawfully. A number ofs different subsets. We have named several of them in our brief, which i think are the clearest cases for the exercise, but there are a number of other subsets. The entire category is people who are present in this country in violation of federal law. Thank you. I was also concerned with what Justice Thomas brought up, and so to clear away some weeds from my mind, when you tell me where i missed this or if i am right. We are looking at statute 141. Takeys the secretary shall b says the tabulation of the population as required for the apportionment of representatives. Tabulation that shall be reported by the secretary of the president. That is the report we are concerned about. That is the tabulation we are concerned about. That, thebased on President Shall transmit a statement showing the whole number of persons for the purpose, again, of apportionment. We are interested in this report in this tabulation under 141b. Far, theight so president s order says i will tell you why i want that. I want that because it is our policy that illegal aliens will not be included in the census. It just says illegal aliens will not be included. And he asked for the reports of the get do that. Constitution forbids to, earth the statutes for bid him to subtract from the tabulation for purposes of this statement, if it forbids them to subtract those illegal aliens, or to the extent it does, the tabulation and the reports are the tabulation required for the apportionment of the senses and therefore you cannot ask the secretary for that report to contain that information. Right or wrong . And if wrong, why . I think i agree with you up until the very end. I think you correctly understand how the statutory provisions which were passed together in 1929 work, and i think its true that if the constitution or the statutes constrain the president s ability to back them out, that would mean that his statement to congress under 2aa would be unlawful, but i dont know that any of that is a constraint on his ability to simply request the information. It is not the information if it is unlawful that is required for the apportionment of the house of representatives. Because it is illegal. Not whether it is illegal or not , that is a different question. All we have on that is about 40 briefs that show the history, the language, the consequences, the purpose, and a bunch of either things other things argue against you, but you have arguments against that. If that side wins, i dont see how the information he has requested could be the information required for the apportionment of representatives. All i would say is i dont want to run together the procedural and substantive issues. I think what youre really getting at is a substantive issue of what the president s powers are here, not any of the procedural issues with respect to the memorandum. I agree with you that what is really at issue here is that substantive question that you are focused on. Well, maybe, but we are not suing the president. They are suing the secretary. And they are saying mr. Secretary, you cannot give to the president this requested information and also say that that piece of paper that you asd him is the tabulation required for the apportionment of representatives. It may something else, but it isnt that. That is what he has asked you to do, and that is what you are trying to do. If it is illegal. You cant do it. Thats right. That doesnt have anything to do with the procedural arguments about the use of the ministrant of records and whether this is somehow part of the census. That is all just a substantive claim and the president doesnt have the power to ask. Persons in 1820, they always counted. This has never happened before that you excluded illegal aliens. You know all those arguments. And i think they are fairly strong ones. What do you want to say . They are persons, arent they . Just very briefly, there are two different things. One is the historical practice which i hope i will be able to address later because i think franklin takes care of that. None of that goes specifically to the question of illegal aliens. Justice alito . 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. Depends on what the Census Bureau and the department of commerce are able to do. Fromjust take the numbers the District Court and the opinion last week, they said were 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, its Something Like 60,000. But the first number could easily change the apportionment of representatives. The second one is much more doubtful that it would change the apportionment of representative. 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. Namese 300 million plus and determine individually from each of those people whether they are lawfully in the United States, and i would think he would be able to tell us whether that remains a realistic possibility at this point. With anyot provide us more information on what you provided in your answer to the chief justice, that basically, they are working on it . I can provide you with a little bit more. I dont 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. Anything like the 10 or 11 million numbers that are flying around. The question is where it will fall in the middle, and we dont know. The reason we dont know is because it turns a great deal on the level of detail that we got in doing the enumerations and until we actually take the census masterfile, once they are all cleaned up and ready to go, and we actually run the models and the few weeks or whatever it is, we wont actually know how many people we pick up. The simple fact is that the experts dont know. We dont know if it will be 50,000 or 100,000. Out, ire my time runs have no expertise whatsoever in this area. How many people are in detention facilities are subject to final orders of removal. If we are going for the Bigger Picture and trying to identify everybody who is in this country dont see how they can provide a partial answer to that. If they were to say, well, weve done this for 200 million theres no way and apportionment can be based on that, is there . They are trying to get the categories of illegal aliens that you could identify based on the kind of records we have. So final orders of removal for instance, or people who have been removed who have found here again and have not been given any lawful status. It is not that we can pick up everyone, there will be some undetected illegal aliens who we are not even attempting to screen for. It is the categories that be shown by some sort of record that we have, and the question is just how feasible is it going to be to capture large numbers within those categories . Unfortunately, we dont know at this point. I have to say, it is a feature of the fact that appellees brought a preapportionment challenge on the basis of this injury that was always going to cease in the past. Justice sotomayor . Yes. And read thend 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. It, he limits this to where is feasible to identify that. Is, ifht now, his policy i can identify them, no matter what the reason is for them being an illegal alien, i am going to exclude them from the census. On Justice Alitos question, arent those the very categories that you already say that weve been told there have been some of them who are in ice , and then my january 11, the Census Bureau says that it intends to provide the president with the information necessary to fully implement the president ial memorandum. Im quoting the Census Bureau. If i take that at its face, it means that the numbers are not going to be 60,000. The number is substantially large. I think that was Justice Alitos point. Which is, the Census Bureau has been collecting data about undocumented immigrants from other agencies for over a year. I dont see how you can represent to us that you dont think it is going to be a substantial number. Three quick points. First, i dont think that is actually an accurate statement of the memorandum. You are certainly right that is the policy, but there are two builtin limitations. One is whether it is feasible and the second is whether the president decides he has the legal discretion to exclude all of these subset and those might have different legal analysis depending on the kind of ties they have where the type of status they have. Im a little bit questioning of that for the following reason. The Census Bureau already defines what residency is. Where you are living. Of april 1, 2020. And whether you are a prison, in or held, the 57 of the people in detention will eventually be released to the United States. So i am not sure how you can immigrantny class of that isnt living here in a traditional sense. Thisis is where they are, is where they were on april 1, and where they intend to stay if they dont find anywhere to go. Based on my understanding from the Census Bureau, there is a real prospect that the numbers will not affect the apportionment. I amsaid earlier, perfectly happy if the Court Disagrees with us. Because we think on the merits, at least some of the illegal aliens captured by the president ial memorandum dont satisfy the test for inhabitants he. Inhabitancy. Saying, i think anyone without papers should not be counted. Now you are saying well, maybe the president will limit that subcategory. But thats not what hes asking for. Hes asking for all of those il