OCTOBER TERM, 1991
Syllabus
FRANKLIN, SECRETARY OF COMMERCE, ET AL.
v.
MASSACHUSETTS ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
No. 91-1502. Argued April 21, 1992-Decided June 26,1992
The Constitution requires that the apportionment of
Representatives be determined by an "actual Enumeration" of persons
"in each State," conducted every 10 years. Art. I, § 2, cl. 3;
Arndt. 14, § 2. After the Secretary of Commerce takes the census in
a form and content she determines, 13 U. S. C. § 141(a), she
reports the tabulation to the President, § 141(b). He, in turn,
sends Congress a statement showing the number of persons in each
State, based on data from the "decennial census," and he determines
the number of Representatives to which each State will be entitled.
2 U. S. C. § 2a(a). For only the second time since 1900, the Census
Bureau (Bureau) allocated the Department of Defense's overseas
employees to particular States for reapportionment purposes in the
1990 census, using an allocation method that it determined most
closely resembled "usual residence," its standard measure of state
affiliation. Appellees Massachusetts and two of its registered
voters filed an action against,
inter alios, the President
and the Secretary of Commerce, alleging, among other things, that
the decision to allocate federal overseas employees is inconsistent
with the Administrative Procedure Act (APA) and the Constitution.
In particular, they alleged that the allocation of overseas
military personnel resulted in the shift of a Representative from
Massachusetts to Washington State. The District Court,
inter
alia, held that the Secretary's decision to allocate such
employees to the States was arbitrary and capricious under APA
standards, directed the Secretary to eliminate them from the
apportionment count, and directed the President to recalculate the
number of Representatives and submit the new calculation to
Congress.
Held: The judgment is reversed. 785 F. Supp. 230,
reversed.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II, and IV, concluding that:
1. There was no "final agency action" reviewable under the
APA.
Pp. 796-801.
(a) An agency action is "final" when an agency completes its
decisionmaking process and the result of that process is one that
will directly affect the parties. Here, the action that creates an
entitlement
789
to a particular number of Representatives and has a direct
effect on the reapportionment is the President's statement to
Congress. He is not required to transmit the Secretary's report
directly to Congress. Rather, he uses the data from the "decennial
census" in making his statement, and, even after he receives the
Secretary's report, he is not prohibited from instructing the
Secretary to reform the census. The statutory structure here
differs from those statutes under which an agency action
automatically triggers a course of action regardless of any
discretionary action taken by the President.
Japan Whaling
Assn. v.
American Cetacean Soc., 478 U. S. 221,
distinguished. Contrary to appellees' argument, the President's
action here is not ceremonial or ministerial. Apportionment is not
foreordained by the time the Secretary gives the President the
report, and the fact that the final action is the President's is
important to the integrity of the process. Pp. 796-800.
(b) The President's actions are not reviewable under the APA. He
is not specifically included in the APA's purview, and respect for
the separation of powers and the President's unique constitutional
position makes textual silence insufficient to subject him to its
provisions. Pp.800-801.
2. The Secretary's allocation of overseas federal employees to
their home States is consistent with the constitutional language
and goal of equal representation. It is compatible with the
standard of "usual residence," which was the gloss given the
constitutional phrase "in each State" by the first enumeration Act
and which has been used by the Bureau ever since to allocate
persons to their home States. The phrase may mean more than mere
physical presence, and has been used to include some element of
allegiance or enduring tie to a place. The first enumeration Act
also used "usual place of abode," "usual resident," and
"inhabitant" to describe the required tie. And "Inhabitant," in the
related context of congressional residence qualifications, Art. I,
§ 2, has been interpreted to include persons occasionally absent
for a considerable time on public or private business. "Usual
residence" has continued to hold broad connotations up to the
present day. The Secretary's judgment does not hamper the
underlying constitutional goal of equal representation, but,
assuming that overseas employees have retained ties to their home
States, actually promotes equality. pp. 803-806.
O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and II, in which
REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined, the
opinion of the Court with respect to Part IV, in which REHNQUIST,
C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS,
JJ., joined, and an opinion with respect to Part III, in which
REHNQUIST, C. J., and WHITE
790
and THOMAS, JJ., joined. STEVENS, J., filed an opinion
concurring in part and concurring in the judgment, in which
BLACKMUN, KENNEDY, and SouTER, JJ., joined,
post, p. 807.
SCALIA, J., filed an opinion concurring in part and concurring in
the judgment,
post, p. 823.
Deputy Solicitor General Roberts argued the cause for
appellants. With him on the briefs were Solicitor General Starr,
Assistant Attorney General Gerson, Edwin S. Kneedler, Michael Jay
Singer, and Mark B. Stern.
Dwight Golann, Assistant Attorney General of
Massachusetts, argued the cause for appellees. With him on the
briefs were
Scott Harshbarger, Attorney General,
Steve
Berenson, Assistant Attorney General, and
John P. Driscoll,
Jr., Edward P. Leibensperger, and
Neil P. Motenko,
Special Assistant Attorneys General. *
JUSTICE O'CONNOR delivered the opinion of the Court, except as
to Part III.
As one season follows another, the decennial census has again
generated a number of reapportionment controversies. This decade,
as a result of the 1990 census and reapportionment, Massachusetts
lost a seat in the House of Representatives. Appellees
Massachusetts and two of its registered voters brought this action
against the President, the Secretary of Commerce (Secretary),
Census Bureau officials, and the Clerk of the House of
Representatives, challenging, among other things, the method used
for counting federal employees serving overseas. In particular, the
appellants' allocation of 922,819 overseas military personnel to
the State
* Robert Abrams, Attorney General of New York,
Jerry Boone, Solicitor General, and
Sanford M. Cohen,
Assistant Attorney General,
Daniel E. Lungren, Attorney
General of California,
Thomas D. Barr, and
Robert S.
Rifkind filed a brief for the State of New York et al. as
amici curiae urging affirmance.
Kenneth O.
Eikenberry, Attorney General of
Washington,
James M.
Johnson, Senior Assistant Attorney General, and
J.
Lawrence Conifffiled a brief for the State of Washington as
amicus curiae.
791
designated in their personnel files as their "home of record"
altered the relative state populations enough to shift a
Representative from Massachusetts to Washington. A threejudge panel
of the United States District Court for the District of
Massachusetts held that the decision to allocate military personnel
serving overseas to their "homes of record" was arbitrary and
capricious under the standards of the Administrative Procedure Act
(APA), 5 U. S. C. § 701
et seq. As a remedy, the District
Court directed the Secretary to eliminate the overseas federal
employees from the apportionment counts, directed the President to
recalculate the number of Representatives per State and transmit
the new calculation to Congress, and directed the Clerk of the
House of Representatives to inform the States of the change. The
federal officials appealed. We noted probable jurisdiction, stayed
the District Court's order, and ordered expedited briefing and
argument.
503 U. S.
442 (1992). We now reverse.
I
Article I, § 2, cl. 3, of the Constitution provides that
Representatives "shall be apportioned among the several States ...
according to their respective Numbers," which requires, by virtue
of § 2 of the Fourteenth Amendment, "counting the whole number of
persons in each State." The number of persons in each State is to
be calculated by "actual Enumeration," conducted every 10 years,
"in such Manner as [Congress] shall by Law direct." U. S. Const.,
Art. I, § 2, cl. 3.
The delegates to the Constitutional Convention included the
periodic census requirement in order to ensure that entrenched
interests in Congress did not stall or thwart needed
reapportionment. See 1 M. Farrand, Records of the Federal
Convention of 1787, pp. 571, 578-588 (rev. ed. 1966). Their effort
was only partially successful, as the congressional battles over
the method for calculating the reapportionment still caused delays.
After just such a 10-year stalemate after the 1920 census, Congress
reformed the reapportionment proc-
792
ess to make it virtually self-executing, so that the number of
Representatives per State would be determined by the Secretary of
Commerce and the President without any action by Congress. See S.
Rep. No.2, 71st Cong., 1st Sess., 2-3 (1929) ("The need for
legislation of this type is confessed by the record of the past
nine years during which Congress has refused to translate the 1920
census into a new apportionment .... As a result, great American
constituencies have been robbed of their rightful share of
representation ... ");
Department of Commerce v.
Montana, 503
U. S. 442, 451-452, and n. 25 (1992).
Under the automatic reapportionment statute, the Secretary of
Commerce takes the census "in such form and content as [s]he may
determine." 13 U. S. C. § 141(a). The Secretary is permitted to
delegate her authority for establishing census procedures to the
Bureau of the Census. See §§ 2, 4. "The tabulation of total
population by States ... as required for the apportionment of
Representatives in Congress ... shall be completed within 9 months
after the census date and reported by the Secretary to the
President of the United States." § 141(b). After receiving the
Secretary's report, the President "shall transmit to the Congress a
statement showing the whole number of persons in each State ... as
ascertained under the ... decennial census of the population, and
the number of Representatives to which each State would be entitled
under an apportionment of the then existing number of
Representatives by the method known as the method of equal
proportions .... " 2 U. S. C. § 2a(a). "Each State shall be
entitled ... to the number of Representatives shown" in the
President's statement, and the Clerk of the House of
Representatives must "send to the executive of each State a
certificate of the number of Representatives to which such State is
entitled." § 2a(b).
With the one-time exception in 1900 of counting overseas
servicemen at their family home, the Census Bureau did not allocate
federal personnel stationed overseas to particular
793
States for reapportionment purposes until 1970. App. 175, 177.
The 1970 census, taken during the Vietnam War, allocated members of
the Armed Forces stationed overseas to their "home of record,"
using Defense Department personnel records.
Id., at 179.
"Home of record" is the State declared by the person upon entry
into military service, and determines where he or she will be moved
after military service is complete.
Id., at 149. Because the
Bureau found that military personnel were likely to designate a
"home of record" with low or no income taxes instead of their true
home State-even though home of record does not determine state
taxation-the Bureau did not allocate overseas employees to
particular States in the 1980 census. App. 180.
Initially, the Bureau took the position that overseas federal
employees would not be included in the 1990 state enumerations
either. There were, however, stirrings in Congress in favor of
including overseas federal employees, especially overseas military,
in the state population counts. Several bills requiring the
Secretary to include overseas military were introduced but not
passed in the 100th and 101st Congresses. See H. R. 3814, 100th
Cong., 1st Sess. (1987); H. R. 4234, 100th Cong., 2d Sess. (1988);
H. R. 3815, 100th Cong., 1st Sess. (1987); H. R. 4720, 100th Cong.,
2d Sess. (1988); S. 2103, 100th Cong., 2d Sess. (1988); H. R. 1468,
101st Cong., 1st Sess. (1989); H. R. 2661, 101st Cong., 1st Sess.
(1989); H. R. 3016, 101st Cong., 1st Sess. (1989); S. 290, 101st
Cong., 1st Sess. (1989). In July 1989, nine months before the
census taking was to begin, then-Secretary of Commerce Robert
Mosbacher agreed to allocate overseas federal employees to their
home States for purposes of congressional apportionment. App. 182.
His decision memorandum cites both the growing congressional
support for including overseas employees and the Department of
Defense's belief that "its employees should not be excluded from
apportionment counts because of temporary and involuntary residence
overseas."
Id., at 120. Another factor explaining the
Secre-
794
tary's shift was that the Department of Defense, the largest
federal overseas employer, planned to poll its employees to
determine, among other things, which State they considered their
permanent home.
Id., at 184. In December 1989, however, the
Defense Department canceled its plans to conduct the survey due to
a lack of funds.
Ibid. As an alternative, the Defense
Department suggested that it could provide data on its employees'
last six months of residence in the United States, information that
would be more complete and up-to-date than the home of record data
already in the personnel files. This possibility also failed to
materialize when the Defense Department informed the Census Bureau
that it was not able to assemble the information after all.
Ibid.
In the meantime, two more bills were introduced in Congress, but
not passed, which would have required the Census Bureau to
apportion members of the overseas military to their home States
using the "home of record" data already in their personnel files.
See H. R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong.,
2d Sess. (1990). In July 1990, six months before the census count
was due to be reported to the President, the Census Bureau decided
to allocate the Department of Defense's overseas employees to the
States based on their "home of record." App. 185. It chose the home
of record designation over other data available, including legal
residence and last duty station, because home of record most
closely resembled the Census Bureau's standard measure of state
affiliation-"usual residence." 3 Record 925. Legal residence was
thought less accurate because the choice of legal residence may
have been affected by state taxation. Indeed, the Congressional
Research Service found that in 1990 "the nine States with either no
income taxes, or those which tax only interest and dividend income,
have approximately 9 percent more of the overseas military
personnel claiming the States for tax purposes, than those same
States receive using
home of record." Congressional
795
Research Service Report, App. 151, n. 13. For similar reasons,
last duty station was rejected because it would provide only a work
address, and the employee's last home address might have been in a
different State, as with those, for example, who worked in the
District of Columbia but lived in Virginia or Maryland. 3 Record
925. Residence at a "last duty station" may also have been of a
very short duration and may not have reflected the more enduring
tie of usual residence. App. 150. Those military personnel for whom
home of record information was not available were allocated based
on legal residence or last duty station, in that order.
Id.,
at 186.
The Census Bureau invited 40 other federal agencies with
overseas employees to submit counts of their employees as well. Of
those, only 30 actually submitted counts, and only 20 agencies
included dependents in their enumeration. Four of the agencies
could not provide a home State for all of their overseas employees.
Ibid.
Appellees challenged the decision to allocate federal overseas
employees, and the method used to do so, as inconsistent with the
AP A and with the constitutional requirement that the apportionment
of Representatives be determined by an "actual Enumeration" of
persons "in each State." U. S. Const., Art. I, § 2, cl. 3; U. S.
Const., Arndt. 14, § 2. Appellees focused their attack on the
Secretary's decision to use "home of record" data for military
personnel. The District Court, finding that it had jurisdiction to
address the merits of the claims, was "skeptical" of the merits of
appellees' constitutional claims, speculating that "[t]here would
appear to be nothing inherently unconstitutional in a properly
supported decision to include overseas federal employees in
apportionment counts."
Commonwealth v.
Mosbacher, 785
F. Supp. 230, 266 (Mass. 1992). The District Court nonetheless held
that, on the administrative record before it, the Secretary's
decision to allocate the employees and to use home
796
of record data was arbitrary and capricious under the standards
of the APA.
Id., at 264-266.
II
Appellees raise claims under both the AP A and the Constitution.
We address first the statutory basis for our jurisdiction under the
APA. See
Blum v.
Bacon, 457 U. S. 132, 137
(1982); Burton v.
United States, 196 U. S. 283, 295
(1905).
The AP A sets forth the procedures by which federal agencies are
accountable to the public and their actions subject to review by
the courts. The Secretary's report to the President is an unusual
candidate for "agency action" within the meaning of the AP A,
because it is not promulgated to the public in the Federal
Register, no official administrative record is generated, and its
effect on reapportionment is felt only after the President makes
the necessary calculations and reports the result to the Congress.
Contrast 2 U. S. C. § 441a(e) (requiring Secretary to publish each
year in the Federal Register an estimate of the voting age
population). Only after the President reports to Congress do the
States have an entitlement to a particular number of
Representatives. See § 2a(b) ("Each State shall be entitled ... to
the number of Representatives shown in the [President's]
statement").
The AP A provides for judicial review of "final agency action
for which there is no other adequate remedy in a court." 5 U. S. C.
§ 704. At issue in this case is whether the "final" action that
appellees have challenged is that of an "agency" such that the
federal courts may exercise their powers of review under the APA.
We hold that the final action complained of is that of the
President, and the President is not an agency within the meaning of
the Act. Accordingly, there is no final agency action that may be
reviewed under the AP A standards.
To determine when an agency action is final, we have looked to,
among other things, whether its impact "is suffi-
797
ciently direct and immediate" and has a "direct effect on ...
day-to-day business."
Abbott Laboratories v.
Gardner,
387 U. S. 136, 152 (1967). An agency action is not final if it
is only "the ruling of a subordinate official," or "tentative."
Id., at 151. The core question is whether the agency has
completed its decisionmaking process, and whether the result of
that process is one that will directly affect the parties. In this
case, the action that creates an entitlement to a particular number
of Representatives and has a direct effect on the reapportionment
is the President's statement to Congress, not the Secretary's
report to the President.
Unlike other statutes that expressly require the President to
transmit an agency's report directly to Congress, § 2a does not.
Compare,
e. g., 20 U. S. C. § 1017(d) ("The President
shall transmit each such report [of the National Advisory Council
on Continuing Education] to the Congress with his comments and
recommendations"); 30 U. S. C. § 1315(c) (similar language); 42 U.
S. C. § 3015(f) (similar language); 42 U. S. C. § 6633(b)(2)
(similar language). After receiving the Secretary's report, the
President is to "transmit to the Congress a statement showing the
whole number of persons in each State ... as ascertained under the
... decennial census of the population." 2 U. S. C. § 2a(a).
Section 2a does not expressly require the President to use the data
in the Secretary's report, but, rather, the data from the
"decennial census." There is no statute forbidding amendment of the
"decennial census" itself after the Secretary submits the report to
the President. For potential litigants, therefore, the "decennial
census" still presents a moving target, even after the Secretary
reports to the President. In this case, the Department of Commerce,
in its press release issued the day the Secretary submitted the
report to the President, was explicit that the data presented to
the President was still subject to correction. See United States
Department of Commerce News, Bureau of Census, 1990 Census
Population for the United States is 249,632,692: Reapportionment
Will
798
Shift 19 Seats in the U. S. House of Representatives 2 (Dec. 26,
1990) ("The population counts set forth herein are subject to
possible correction for undercount and overcount. The United States
Department of Commerce is considering whether to correct these
counts and will publish corrected counts, if any, not later than
July 15, 1991").1 Moreover, there is no statute that rules out an
instruction by the President to the Secretary to reform the census,
even after the data are submitted to him. It is not until the
President submits the information to Congress that the target stops
moving, because only then are the States entitled by § 2a to a
particular number of Representatives. Because the Secretary's
report to the President carries no direct consequences for the
reapportionment, it serves more like a tentative recommendation
than a final and binding determination. It is, like "the ruling of
a subordinate official,"
Abbott Laboratories v.
Gardner,
supra, at 151, not final and therefore not subject to review.
Cf.
Chicago &
Southern Air Lines, Inc. v.
Waterman S. S.
Corp., 333 U. S. 103, 109
(1948);
United States v.
George S.
Bush &
Co., 310 U. S.
371, 379 (1940).
The statutory structure in this case differs from that at issue
in
Japan Whaling Assn. v.
American Cetacean Soc.,
478 U. S. 221
(1986), in which we held that the Secretary of Commerce's
certification to the President that another country was endangering
fisheries was "final agency action."
Id., at 231, n. 4. In
that case, the Secretary's certification
IJUSTICE STEVENS suggests that the "decennial census" is a
single count, determined solely by the Secretary, that is used for
many purposes other than reapportionment of Representatives.
Therefore, he reasons, it cannot be within the control of the
President. However, the President may be involved in the
policymaking tasks of his Cabinet members, whether or not his
involvement is explicitly required by statute. The question here is
whether the census count is final before the President acts. It
seems clear that it is not. The tabulations used for purposes of
state redistricting, which include counts of persons in each state
district, are not required by statute to be completed until April
1, months after the President's report to Congress. 13 U. S. C. §
141(c).
799
to the President under 22 U. S. C. § 1978(a)(1) automatically
triggered sanctions by the Secretary of State under 16 U. S. C. §
1821(e)(2)(B), regardless of any discretionary action the President
himself decided to take.
Japan Whaling, supra, at 226. Under
13 U. S. C. § 141(a), by contrast, the Secretary's report to the
President has no direct effect on reapportionment until the
President takes affirmative steps to calculate and transmit the
apportionment to Congress.
Appellees claim that because the President exercises no
discretion in calculating the numbers of Representatives, his "role
in the statutory scheme was intended to have no substantive
content," and the final action is the Secretary's, not the
President's. Brief for Appellees 86. They cite the Senate Report
for the bill that became 2 U. S. C. § 2a, which states that the
President is to report "upon a problem in mathematics which is
standard, and for which rigid specifications are provided by
Congress itself, and to which there can be but one mathematical
answer." S. Rep. No.2, 71st Cong., 1st Sess., at 4-5.
The admittedly ministerial nature of the apportionment
calculation itself does not answer the question whether the
apportionment is foreordained by the time the Secretary gives her
report to the President. To reiterate, § 2a does not curtail the
President's authority to direct the Secretary in making policy
judgments that result in "the decennial census"; he is not
expressly required to adhere to the policy decisions reflected in
the Secretary's report. Because it is the President's personal
transmittal of the report to Congress that settles the
apportionment, until he acts there is no determinate agency action
to challenge. The President, not the Secretary, takes the final
action that affects the States.
Indeed, it is clear that Congress thought it was important to
involve a constitutional officer in the apportionment process.
Congress originally considered a bill requiring the Secretary to
report the apportionment calculation directly
800
to Congress. See S. Rep. No. 1446, 70th Cong., 2d Sess., 4
(1929). The bill was later amended to require the participation of
the President: "Another objection to the previous bill was that the
Secretary of Commerce should not be intrusted with the final
responsibility for making so important a report to Congress. The
new and pending bill recognizes this objection to the extent that
the President is substituted for the Secretary of Commerce so that
this function may be served by a constitutional officer. This makes
for greater permanence, which is one of the major virtues to be
desired in such a statute." S. Rep. No.2,
supra, at 5. It is
hard to imagine a purpose for involving the President if he is to
be prevented from exercising his accustomed supervisory powers over
his executive officers. Certainly no purpose to alter the
President's usual superintendent role is evident from the text of
the statute.
As enacted, 2 U. S. C. § 2a provides that the Secretary cannot
act alone; she must send her results to the President, who makes
the calculations and sends the final apportionment to Congress.
That the final act is that of the President is important to the
integrity of the process and bolsters our conclusion that his
duties are not merely ceremonial or ministerial. Thus, we can only
review the AP A claims here if the President, not the Secretary of
Commerce, is an "agency" within the meaning of the Act.
The APA defines "agency" as "each authority of the Government of
the United States, whether or not it is within or subject to review
by another agency, but does not include(A) the Congress; (B) the
courts of the United States; (C) the governments of the territories
or possessions of the United States; (D) the government of the
District of Columbia." 5 U. S. C. §§ 701(b)(1), 551(1). The
President is not explicitly excluded from the AP A's purview, but
he is not explicitly included, either. Out of respect for the
separation of powers and the unique constitutional position of the
President, we find that textual silence is not enough to subject
the Presi-
801
dent to the provisions of the APA. We would require an express
statement by Congress before assuming it intended the President's
performance of his statutory duties to be reviewed for abuse of
discretion. Cf.
Nixon v.
Fitzgerald, 457 U. S. 731, 748, n. 27
(1982) (Court would require an explicit statement by Congress
before assuming Congress had created a damages action against the
President). As the APA does not expressly allow review of the
President's actions, we must presume that his actions are not
subject to its requirements. Although the President's actions may
still be reviewed for constitutionality, see
Youngstown
Sheet &
Tube Co. v.
Sawyer, 343 U. S. 579 (1952);
Panama Refining Co. v.
Ryan, 293 U. S. 388 (1935), we
hold that they are not reviewable for abuse of discretion under the
AP A, see
Armstrong v.
Bush, 288 U. S. App. D. C. 38,
45,
924 F.2d
282, 289 (1991). The District Court erred in proceeding to
determine the merits of the AP A claims.
III
Although the reapportionment determination is not subject to
review under the standards of the AP A, that does not dispose of
appellees' constitutional claims. See
Webster v.
Doe,
486 U. S. 592,
603-605 (1988). Constitutional challenges to apportionment are
justiciable. See
Department of Commerce v.
Montana,
503 U. S. 442
(1992).
We first address standing.2 To invoke the constitutional power
of the federal courts to adjudicate a case or controversy under
Article III, appellees here must allege and prove an injury "fairly
traceable to the [appellants'] allegedly unlawful conduct and
likely to be redressed by the requested relief."
Allen v.
Wright, 468 U.
S. 737, 751 (1984).
2 While appellants asserted below that the courts have no
subjectmatter jurisdiction over this case because it involves a
"political question," we recently rejected a similar argument in
Department of Commerce v.
Montana, 503 U. S., at
456-459, and appellants now concede the issue. Brief for Appellants
21.
802
Opinion of O'CONNOR, J.
To determine whether appellees sufficiently allege and prove
causation requires separating out appellees' claims:
Appellees claim both that the Secretary erred in deciding to
allocate overseas employees to various States and that the
Secretary erred in using inaccurate data to do so. Appellees have
shown that Massachusetts would have had an additional
Representative if overseas employees had not been allocated at all.
App. 183. They have neither alleged nor shown, however, that
Massachusetts would have had an additional Representative if the
allocation had been done using some other source of "more accurate"
data. Consequently, even if appellees have standing to challenge
the Secretary's decision to allocate, they do not have standing to
challenge the accuracy of the data used in making that allocation.
We need, then, review only the decision to include overseas federal
employees in the state population counts, not the Secretary's
choice of information sources.
The thornier standing question is whether the injury is
redressable by the relief sought. Tracking the statutory progress
of the census data from the Census Bureau, through the President,
and to the States, the District Court entered an injunction against
the Secretary of Commerce, the President, and the Clerk of the
House. 785 F. Supp., at 268. While injunctive relief against
executive officials like the Secretary of Commerce is within the
courts' power, see
Youngstown Sheet &
Tube Co. v.
Sawyer, supra, the District Court's grant of injunctive
relief against the President himself is extraordinary, and should
have raised judicial eyebrows. We have left open the question
whether the President might be subject to a judicial injunction
requiring the performance of a purely "ministerial" duty,
Mississippi v.
Johnson, 4 Wall. 475, 498-499 (1867),
and we have held that the President may be subject to a subpoena to
provide information relevant to an ongoing criminal prosecution,
United States v.
Nixon, 418 U. S. 683 (1974), but
in general "this
803
court has no jurisdiction of a bill to enjoin the President in
the performance of his official duties."
Mississippi v.
Johnson, supra, at 501. At the threshold, the District Court
should have evaluated whether injunctive relief against the
President was available, and, if not, whether appellees' injuries
were nonetheless redressable.
For purposes of establishing standing, however, we need not
decide whether injunctive relief against the President was
appropriate, because we conclude that the injury alleged is likely
to be redressed by declaratory relief against the Secretary alone.
See
Duke Power Co. v.
Carolina Environmental Study Group,
Inc., 438 U. S.
59, 75, n. 20 (1978);
Allen v.
Wright, supra, at
752. The Secretary certainly has an interest in defending her
policy determinations concerning the census; even though she cannot
herself change the reapportionment, she has an interest in
litigating its accuracy. And, as the Solicitor General has not
contended to the contrary, we may assume it is substantially likely
that the President and other executive and congressional officials
would abide by an authoritative interpretation of the census
statute and constitutional provision by the District Court, even
though they would not be directly bound by such a
determination.
IV
On the merits, appellees argue that the Secretary's allocation
of overseas federal employees to the States violated the command of
Article I, § 2, cl. 3, that the number of Representatives per State
be determined by an "actual Enumeration" of "their respective
Numbers," that is, a count of the persons "in" each State.
Appellees point out that the first census conducted in 1790
required that persons be allocated to their place of "usual
residence." Brief for Appellees 77. See Act of Mar. 1, 1790, § 5, 1
Stat. 103. Because the interpretations of the Constitution by the
First Congress are per-
804
suasive,
Bowsher v.
Synar, 478 U. S. 714, 723-724
(1986), appellees argue that the Secretary should have allocated
the overseas employees to their overseas stations, because those
were their usual residences.
The appellants respond, on the other hand, that the allocation
of employees temporarily stationed overseas to their home States is
fully compatible with the standard of "usual residence" used in the
early censuses. We review the dispute to the extent of determining
whether the Secretary's interpretation is consistent with the
constitutional language and the constitutional goal of equal
representation. See
Department of Commerce v.
Montana, 503 U. S., at 459.
"U sual residence" was the gloss given the constitutional phrase
"in each State" by the first enumeration Act and has been used by
the Census Bureau ever since to allocate persons to their home
States. App. 173-174. The term can mean more than mere physical
presence, and has been used broadly enough to include some element
of allegiance or enduring tie to a place. The first enumeration Act
itself provided that "every person occasionally absent at the time
of the enumeration [shall be counted] as belonging to that place in
which he usually resides in the United States." Act of Mar. 1,
1790, § 5, 1 Stat. 103. The Act placed no limit on the duration of
the absence, which, considering the modes of transportation
available at the time, may have been quite lengthy. For example,
during the 36-week enumeration period of the 1790 census, President
George Washington spent 16 weeks traveling through the States, 15
weeks at the seat of Government, and only 10 weeks at his home in
Mount Vernon. He was, however, counted as a resident of
Virginia.
The first enumeration Act uses other words as well to describe
the required tie to the State: "usual place of abode,"
"inhabitant," "usual reside[nt]." Act of Mar. 1, 1790, § 5, 1 Stat.
103. The first draft of Article I, § 2, also used the word
"inhabitant," which was omitted by the Committee of Style
805
in the final provision. 2 Farrand, Records of the Federal
Convention of 1787, at 566, 590.3
In the related context of congressional residence
qualifications, U. S. Const., Art. I, § 2, James Madison
interpreted the constitutional term "inhabitant" to include
"persons absent occasionally for a considerable time on public or
private business." 2 Farrand, Records of the Federal Convention of
1787, at 217. This understanding was applied in 1824, when a
question was raised about the residency qualifications of would-be
Representative John Forsyth, of Georgia. Mr. Forsyth had been
living in Spain during his election, serving as minister
plenipotentiary from the United States. His qualification for
office was challenged on the ground that he was not "an inhabitant
of the State in which he [was] chosen." U. S. Const., Art. I, § 2,
cl. 2. The House Committee of Elections disagreed, reporting:
"There is nothing in Mr. Forsyth's case which disqualifies him from
holding a seat in this House. The capacity in which he acted,
excludes the idea that, by the performance of his duty abroad, he
ceased to be an inhabitant of the United States; and, if so,
inasmuch as he had no inhabitancy in any other part of the Union
than Georgia, he must be considered as in the same situation as
before the acceptance of the appointment." M. Clarke & D. Hall,
Cases of Contested Elections in Congress 497-498 (1834).
Representative Bailey, supporting the qualification of Mr. Forsyth,
pointed out that if "the mere living in a place constituted
inhabitancy," it would "exclude sitting members of this House."
Id., at 497 (emphasis deleted).
Up to the present day, "usual residence" has continued to hold
broad connotations. For example, up until 1950, college
3 As submitted to the Committee of Style, the provision read:
"[T]he Legislature shall ... regulate the number of representatives
by the number of inhabitants." 2 M. Farrand, Records of the Federal
Convention of 1787, p. 566 (rev. ed. 1966). After its return by the
Committee, it had a more familiar ring: "Representatives ... shall
be apportioned among the several states ... according to their
respective numbers."
Id., at 590.
806
students were counted as belonging to the State where their
parents resided, not to the State where they attended school. App.
219. Even today, high school students away at boarding school are
allocated to their parents' home State, not the location of the
school.
Id., at 220. Members of Congress may choose whether
to be counted in the Washington, D. C., area or in their home
States.
Id., at 218. Those persons who are institutionalized
in out-of-state hospitals or jails for short terms are also counted
in their home States.
Id., at 225.
In this case, the Secretary of Commerce made a judgment,
consonant with, though not dictated by, the text and history of the
Constitution, that many federal employees temporarily stationed
overseas had retained their ties to the States and could and should
be counted toward their States' representation in Congress: "Many,
if not most, of these military overseas consider themselves to be
usual residents of the United States, even though they are
temporarily assigned overseas."
Id., at 120. The Secretary's
judgment does not hamper the underlying constitutional goal of
equal representation, but, assuming that employees temporarily
stationed abroad have indeed retained their ties to their home
States, actually promotes equality. If some persons sharing in
Washington's fate had not been properly counted, the votes of all
those who reside in Washington State would not have been weighted
equally to votes of those who reside in other States. Certainly,
appellees have not demonstrated that eliminating overseas employees
entirely from the state counts will make representation in Congress
more equal. Cf.
Karcher v.
Daggett, 462 U. S. 725, 730-731
(1983) (parties challenging state apportionment legislation bear
burden of proving disparate representation). We conclude that
appellees' constitutional challenge fails on the merits.
The District Court's judgment is
Reversed.
807
JUSTICE STEVENS, with whom JUSTICE BLACKMUN, JusTICE KENNEDY,
and JUSTICE SOUTER join, concurring in part and concurring in the
judgment.
In my opinion the census report prepared by the Secretary of
Commerce is "final agency action" subject to judicial review under
the Administrative Procedure Act (APA), 5 U. S. C. § 701
et
seq. I am persuaded, however, that the Secretary complied with
the Census Act and with the Constitution in the preparation of the
1990 census and that, under the standard of deference appropriate
here, the Secretary's actions were not arbitrary or capricious. I
therefore agree that the judgment of the District Court must be
reversed.
I
During the decade after 1980 the population of Massachusetts
increased less rapidly than the population of the entire Nation. In
the apportionment following the 1990 census, it received only 10 of
the 435 seats in the House of Representatives whereas formerly it
had 11.
In the District Court, appellees, who are the Commonwealth of
Massachusetts and two of its registered voters, made two separate
attacks on the process that reduced the size of Massachusetts'
congressional delegation. They challenged the Secretary's conduct
of the census, and they challenged the method of apportioning
congressional seats based on the census report. The District Court
rejected the challenge to the constitutionality of the method of
apportionment prescribed in the Apportionment Act of 1941, 55 Stat.
761-762.
Commonwealth v.
Mosbacher, 785 F. Supp.
230,256 (Mass. 1992). That decision was consistent with the
analysis subsequently set forth in our opinion in
Department of
Commerce v.
Montana, 503 U. S. 442 (1992), and
is no longer in dispute. Pursuant to the judicial review provisions
of the AP A, 5 U. S. C. § 706(2), the District Court also examined
the decision of the Secretary of Commerce to include overseas
federal employees in the census count. The
808
Opinion of STEVENS, J.
court concluded that the Secretary's decision was "arbitrary and
capricious, and an abuse of discretion." 785 F. Supp., at 267.
In a rather surprising development, this Court reverses because
it concludes that the census report is not "final agency action," 5
U. S. C. § 704. The reason the Court gives for this conclusion is
that the President-who is not himself a part of the agency that
prepared the census and who has no statutory responsibilities under
the Census Act-might revise that report in some way when he is
performing his responsibilities under an entirely separate statute,
the Apportionment Act. The logic of the Court's opinion escapes me,
and apparently was not obvious to the Solicitor General, for he
advanced no such novel claim in his argument seeking reversal. The
Court's conclusion is erroneous for several reasons.
II
Article I, § 2, cl. 3, of the Constitution, as modified by the
Fourteenth Amendment, provides that Members of the House of
Representatives "shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State .... " To ensure that the apportionment
remains representative of the current population, the Constitution
further requires that a census be taken at least every 10
years.1
Beginning in 1790, Congress fulfilled the constitutional command
by passing a Census Act every 10 years. Under the early census
statutes, marshals would transmit the collected information to the
Secretary of State. The census functions of the Secretary of State
were transferred to the Secretary of the Interior after that
Department was estab-
1 "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." U. S. Const., Art. I, § 2, cl. 3.
809
lished in 1849.2 A Census Office in the Department of the
Interior was established in 1899 and made permanent in 1902.3 A
year later, the Census Office was moved to the newly formed
Department of Commerce and Labor.4
Following each census, Congress enacted a statute to reapportion
the House of Representatives. After the 1920 census, however,
Congress failed to pass a reapportionment Act. This congressional
deadlock provided the impetus for the 1929 Act that established a
self-executing apportionment in the case of congressional inaction.
See S. Rep. No.2, 71st Cong., 1st Sess., 2-4 (1929). The bill
produced an automatic reapportionment through the application of a
mathematical formula to the census. The automatic connection
between the census and the reapportionment was the key innovation
of the Act.5
In its original version, the bill directed the Secretary of
Commerce to apply a mathematical formula to the census figures and
to transmit the resulting apportionment calculations to Congress. A
later version made the President responsible for performing the
mathematical computations and reporting the result. From the
legislative history, it is clear that this change in the designated
official was intended to have no substantive significance.6 There
is no indication
2 See C. Wright, The History and Growth of the United States
Census,
432 Stat. 826-827.
5 See 71 Congo Rec. 1609-1610 (1929) (remarks of Sen.
Vandenberg).
The automatic reapportionment on the basis of the decennial
census was retained when the reapportionment features of the bill
were modified somewhat in 1941. Act of Nov. 15, 1941, 55 Stat. 761.
See
Department of Commerce V.
Montana, 503 U. S. 442, 451-452,
and n. 25 (1992).
6 The sponsor of the bill, Senator Vandenberg, explained the
change: "[T]he President of the United States is substituted in the
bill as the person who shall make the computation and report
instead of the Secretary of Commerce, who was identified in the
bill last February simply and solely because it was my own personal
notion that if we were to accomplish a permanent end through the
passage of permanent legislation it were
810
Opinion of STEVENS, J.
whatsoever of an intention to introduce a layer of Executive
discretion between the taking of the census and the application of
the reapportionment formula. The intention was exactly the
contrary: to make the apportionment proceed automatically based on
the census.
The statutory scheme creates an interlocking set of
responsibilities for the Secretary and the President. The Secretary
of Commerce is required to take a "decennial census of population
as of the first day of April of [every tenth] year, which date
shall be known as the 'decennial census date.'" 13 U. S. C. §
141(a). The Secretary reports the collected information to the
President, see § 141(b), who is directed to "transmit to the
Congress" a statement showing the population of each State "as
ascertained under the seventeenth and each subsequent decennial
census .... " 2 U. S. C. § 2a(a). The plain language of the statute
demonstrates that the President has no substantive role in the
computation of the census. The Secretary takes the "decennial
census," and the President performs the apportionment calculations
and transmits the census figures and apportionment results to
Congress.
In the face of this clear statutory mandate, the Court must fall
back on an argument based on statutory silence. The Court insists
that there is no law
prohibiting the President from changing
the census figures after he receives them from the Secretary. The
Court asserts: "Section 2a does not expressly require the President
to use the data in the
Secretary's report, but, rather, the
data from the
'decennial census.'" Ante, at 797 (emphasis
added). This statement is difficult to comprehend, for it purports
to contrast two terms that the statute equates. The "decennial
census" is the name the statute gives to the information collected
by the
better to name a constitutional officer rather than a statutory
officer. I have quite no pride of opinion at that point and I think
it makes quite no difference, because everybody will get the same
answer when we undertake to do that problem in arithmetic." 71
Congo Rec. 1613 (1929).
811
Secretary and reported to the President. The Court's argument
cannot be harmonized with a statutory scheme that directs the
Secretary to take the "decennial census" and the President to
report to Congress figures "as ascertained under the ... decennial
census." This language cannot support the Court's view that the
statute endows the President with discretion to modify the census
results reported by the Secretary.
The legislative record, moreover, establishes that the Executive
involvement in the process is to be wholly ministeriaP The question
of the discretion allowed to the President was discussed on the
floor of the Senate, and the sponsor of the bill, Senator
Vandenberg of Michigan, stated unequivocally that the President
exercised no discretion whatsoever: "I believe as a matter of
indisputable fact, that function served by the President is as
purely and completely a ministerial function as any function on
earth could be." 71 Congo Rec. 1858 (1929).8 In a colloquy with
other legisla-
7 The Senate Report, for example, states:
"The objection that this is an improper 'delegation of power' to
the Department of Commerce (which takes the census) and to the
President (who reports the arithmetic) is answered by an
examination of the facts. No power whatever is delegated. The
Department of Commerce counts the people (as it always has done)
and the President reports upon a problem in mathematics which is
standard, and for which rigid specifications are provided by
Congress itself, and to which there can be but one mathematical
answer." S. Rep. No.2, 71st Cong., 1st Sess., 4-5 (1929).
8 At another point, Senator Vandenberg explained:
"The bill calls upon the President to report the result of a
census to the Congress. We have always depended upon somebody to
report the result of a census to us. The bill calls upon the
President, when he reports the result of the census, also to report
the result of a problem in arithmetic. If the President did not
present the answer to that problem in arithmetic, somebody else
would have to do the problem in arithmetic, because no matter what
method is embraced for purposes of apportionment, there is
inevitably needed a formula which, like a chemical formula, may in
itself be somewhat inscrutable, and yet which always reaches the
same conclusion." 71 Congo Rec. 1613 (1929). The accuracy of
Senator Vandenberg's
812
Opinion of STEVENS, J.
tors, Senator Vandenberg made clear that the bill did not allow
the President to change the census figures he received:
"Mr. SWANSON: As I understand, the Senator from Montana says,
after reading the bill carefully, that the President is bound and
has no discretion under its terms; so that if there should be
glaring frauds all over the country he would be compelled to make
the apportionment according to the census.
"Mr. WALSH of Montana: I should say so, because as I understand,
he is not authorized to disregard any numbers upon any ground.
"Mr. SWANSON: I should like to ask the Senator from Michigan if
that is his view? I understand the Senator from Montana to say that
if the census returns shall be shown to be reeking with frauds the
President will have no power to correct them; that he must follow
the census returns as certified, regardless of the fraud that may
be involved. Is that the view of the Senator from Michigan?
"Mr. VANDENBERG: My answer is that the Senator from Montana is
entirely correct. There is absolutely no discretion in name or
nature reposed in the President in connection with the
administration of this proposed act." Id., at
1845-1846.9
No President-indeed, no member of the Executive Branch-has ever
suggested that the statute authorizes the President to modify the
census figures when he performs the
statements is confirmed by the analysis set forth in our opinion
in
Department of Commerce v.
Montana, 503 U. S., at
448-456.
9 An opponent of the bill, Senator Black, questioned whether the
Act might allow the President more than a ministerial role in the
apportionment process. He considered such a possibility a recipe
for tyranny. See 71 Congo Rec. 1612 (1929).
813
apportionment calculations. Nor did the Solicitor General
advance that argument in this litigation.10 As a matter of
practice, the President has consistently and faithfully performed
the ministerial duty described by Senator Vandenberg. The Court's
suggestion today that the statute gives him discretion to do
otherwise is plainly incorrect.ll
10 While asserting that the President has authority to direct
the Secretary's performance of the census, the Solicitor General
acknowledged that the statute does not authorize the President to
deviate from the Secretary's report:
"MR. ROBERTS: The law directs [the President] to apply, of
course, a particular mathematical formula to the population figures
he receives, but I don't think there is a limit on his exercise of
authority to direct the Secretary of Commerce to conduct the census
in a particular manner. It would be unlawful, maybe not subject to
judicial review, but unlawful just to say, these are the figures,
they are right, but I am going to submit a different statement. But
he can certainly direct the Secretary in the conduct of the
census.
"QUESTION: But would he have to remand it in effect to the
Secretary or could he say, well, I have had somebody over at the
FBI making some checks for me and they tell me there are really
more people in Massachusetts, so I am going to give them extra
seats.
"MR. ROBERTS: I think under the law he is supposed to base his
calculation on the figures submitted by the Secretary." Tr. of Oral
Arg. 12-13.
11 The Court confuses two duties of the President: (1) the
general duty to supervise the actions of the Secretary of Commerce,
and (2) the statutory duty to transmit the census report and the
apportionment calculations to Congress. This confusion is evident
from the Court's statement, "It is hard to imagine a purpose for
involving the President if he is to be prevented from exercising
his accustomed supervisory powers over his executive officers."
Ante, at 800. It may be true that the statute does not
purport to limit the President's "accustomed supervisory powers"
over the Secretary of Commerce. The President would enjoy these
"accustomed powers," however, whether or not he was responsible for
transmitting the census and apportionment calculations to Congress.
These "accustomed powers," therefore, cannot be relevant in
deciding whether agency action is final for the purposes of the
APA, or else no action of an Executive department would ever be
final. The Court's argument then depends on construing the statute
to grant discretion to the President that
814
Opinion of STEVENS, J.
Because the Census Act directs that the tabulation of the total
population by States shall be "reported by the Secretary to the
President," the Court suggests that it is "like a tentative
recommendation" to the President,
ante, at 798. This
suggestion is misleading because, unlike the typical "tentative
recommendation," the census report is a public document. It is
released to the public at the same time that it is transmitted to
the President.12 By law, the census report is distributed to
federal and state agencies because it provides the basis for the
allocation of various benefits and burdens among the States under a
variety of federal programs. The Secretary also transmits the
census figures directly to the States to assist them in
redistricting. See 13 U. S. C. § 141(c).
This wide distribution provides further evidence that the
statute does not contemplate the President's changing the
Secretary's report. If the President modified the census figures
after he received them from the Secretary, the Federal Government
and the States would rely on different census results. The
Secretary has made clear that the existence of varying "official"
population figures is not acceptable.
he would not otherwise enjoy. Such additional grants of
authority were implicated in the cases on which the Court relies.
See
Chicago &
Southern Air Lines, Inc. v.
Waterman S. S.
Corp., 333 U. S. 103 (1948);
United States v.
George S.
Bush &
Co., 310 U. S.
371 (1940). The statutory language here will not bear this
interpretation. Moreover, whatever purpose the Court wishes to
"imagine" for the statute's designating the President as the
official responsible for performing the apportionment calculations,
the legislative record makes it absolutely clear that the purpose
was
not to give the President any new discretionary
authority over the census. See
supra, at 810-812, and n.
6.
12 See United States Department of Commerce News, Bureau of
Census, 1990 Census Population for the United States is
249,632,692: Reapportionment Will Shift 19 Seats in the U. S. House
of Representatives (Dec. 26, 1990); see also N. Y. Times, Dec. 27,
1990, p. AI, col. 3.
815
In setting forth guidelines for possible adjustment of the
census results,13 the Secretary stated:
"The resulting counts must be of sufficient quality and level of
detail to be usable for Congressional reapportionment and
legislative redistricting, and for all other purposes and at all
levels for which census counts are published ....
"[T]here can be, for the population at all geographic levels at
anyone point in time, only one set of official government
population figures." 55 Fed. Reg. 98409841 (1990).
To ensure uniformity, the Secretary's count must establish the
final census figures. 14
13 The Court asserts that the possibility of census adjustments
prior to the President's report to Congress supports its
interpretation of the statute. See
ante, at 797-798. On the
contrary, the evidence the Court cites undermines its argument. The
President's statement accompanying the transmittal of the 1990
census and apportionment figures to Congress explains, "The
Department of Commerce is considering whether to correct these
counts and will publish corrected counts, if any, not later than
July 15,1991." H. R. Doc. No. 102-18, p. 1 (1991). The statement
underscores that it is the
Secretary, not the President who
determines the final census figures. That the Secretary will
"publish" the corrected results also demonstrates that the Court is
mistaken in likening the Secretary's report to a "tentative
recommendation."
Ante, at 798.
The possibility that the Secretary may modify the census
figures, of course, cannot support the Court's view that the
President's intervention deprives the Secretary's action of
finality. The possibility of correction would mean, at most, that
appellees' challenge was not ripe until the Secretary's eventual
announcement that he would not adjust the census. See 56 Fed. Reg.
33582 (1991). Similarly, even if it were the President's report to
Congress that signaled the end of a census-adjustment process, that
would be relevant only in determining when a challenge is ripe, not
whether the Secretary's report is "final agency action."
14 Even in the Court's view, the Secretary's report of census
information to recipients other than the President would certainly
constitute "final agency action." The Court's decision thus appears
to amount to a pleading requirement. To avoid the bar to APA review
that the Court imposes
816
Opinion of STEVENS, J.
In light of the statutory language, the legislative history, and
the consistent Executive practice, the Court's conclusion that the
census report is not "final agency action" is as insupportable as
it is surprising.15
III
In view of my conclusion that the census report prepared by the
Secretary constitutes final agency action, I must consider the
Secretary's contention that judicial review is not available
because the conduct of the census is "committed to agency
discretion by law." 5 U. S. C. § 701(a)(2).
As we have frequently recognized, the "strong presumption that
Congress intends judicial review of administrative action," see,
e. g., Bowen v.
Michigan Academy of Family
Physicians, 476
U. S. 667, 670 (1986), cannot be overcome without" 'clear and
convincing evidence'" of a contrary legislative intent,
Abbott
Laboratories v.
Gardner, 387 U. S. 136, 141 (1967)
(quoting
Rusk v.
Cort, 369 U. S. 367, 380
(1962)). No such evidence appears here.
The current version of the statute provides that "[t]he
Secretary shall ... take a decennial census of population as of the
first day of April ... in such form and content as [s]he may
determine .... " 13 U. S. C. § 141(a).16 The Secretary
today, litigants need only join their apportionment challenges
to other census-related claims. Notwithstanding the Court's novel
reading of the statute, in view of the Secretary's insistence on
unitary census data, relief on any census claim would yield relief
on all other claims.
15 My conclusion that the Secretary's action was reviewable
makes it unnecessary for me to consider whether the President is an
"agency" within the meaning of the APA.
16 Moreover, this language appeared only recently in the
statute. The Act passed in 1929 stated: "That a census of
population ... shall be taken by the Director of the Census in the
year 1930 and every ten years thereafter." 46 Stat. 21. Before the
1976 amendment, the Act provided: "The Secretary shall, in the year
1960 and every ten years thereafter, take a census of population
.... " 71 Stat. 483. It was not until 1976 that Congress added the
language, "in such form and content as [s]he may determine." To the
extent that the argument for unreviewability depends on
817
asserts that the discretion afforded by the statute is at least
as broad as that allowed the Director of Central Intelligence in
the statute we considered in
Webster v.
Doe, 486 U. S. 592 (1988).
That assertion cannot withstand scrutiny. The statute at issue in
Doe provided that "the Director of Central Intelligence may,
in his discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such termination
necessary or advisable in the interests of the United States .... "
50 U. S. C. §403(c). In concluding that employment discharge
decisions were committed to agency discretion, we emphasized the
language of "deem ... advisable," which we found to provide no
meaningful standard of review. We also relied on the overall
statutory structure of the National Security Act.
No language equivalent to "deem ... advisable" exists in the
census statute. There is no indication that Congress intended the
Secretary's own mental processes, rather than other more objective
factors, to provide the standard for gauging the Secretary's
exercise of discretion. Moreover, it
this phrase, it requires the conclusion that when Congress
amended the statute in 1976, it intended to effect a new,
unreviewable commitment to agency discretion. There is no support
for this position whatsoever. The main purpose of the 1976
amendment was to provide for a mid-decade census to be used for
various purposes (not including apportionment). See S. Rep. No.
94-1256, pp. 2-3 (1976). The legislative history evidences no
intention to expand the scope of the Secretary's discretion.
The Senate Report on the new language in 13 U. S. C. § 141(a)
reads in its entirety:
"Subsection (a) of section 141 essentially rewords the existing
subsection, adding the term 'decennial census of population' so as
to distinguish this census, to be taken in 1980 and every ten years
thereafter, from the mid-decade census, which is to be taken in
1985 and every ten years thereafter. New language is added at the
end of the subsection to encourage the use of sampling and surveys
in the taking of the decennial census."
Indeed, other portions of the Act limited the Secretary's
authority by requiring, if feasible, the use of sampling in the
nonapportionment census. 90 Stat. 2464, 13 U. S. C. § 195.
818
Opinion of STEVENS, J.
is difficult to imagine two statutory schemes more dissimilar
than the National Security Act and the Census Act. Though they both
relate to the gathering of information, the similarity ends there.
Doe raises the possibility that, except for constitutional
claims, the Director of Central Intelligence may enjoy unreviewable
discretion to discharge employees. This conclusion accords with the
principle of judicial deference that pervades the area of national
security. See,
e. g., Department of Navy v.
Egan, 484 U.
S. 518, 530 (1988);
CIA v.
Sims, 471 U. S. 159, 180-181
(1985). While the operations of a secret intelligence agency may
provide an exception to the norm ofreviewability,17 the taking of
the census does not. The open nature of the census enterprise and
the public dissemination of the information collected are closely
connected with our commitment to a democratic form of government.18
The reviewability of decisions relating to the conduct of the
census bolsters public confidence in the integrity of the process
and helps strengthen this mainstay of our democracy.
More generally, the Court has limited the exception to judicial
review provided by 5 U. S. C. § 701(a)(2) to cases involving
national security, such as
Webster v.
Doe and
Department of Navy v.
Egan, or those seeking review
of refusal to pursue enforcement actions, see
Heckler v.
Chaney, 470 U. S.
17 Indeed, it was asserted in
Webster v.
Doe,
486 U. S. 592
(1988), that the statute should be construed to preclude review
even of constitutional claims. See
id., at 605-606
(O'CONNOR, J., concurring in part and dissenting in part);
id., at 621 (SCALIA, J., dissenting) (describing Court's
refusal to preclude constitutional review as creating "the world's
only secret intelligence agency that must litigate the dismissal of
its agents").
18 See 3 Encyclopedia of the Social Sciences 296 (reprinted in
Subcommittee on Energy, Nuclear Proliferation and Federal Services
of the Senate Committee on Governmental Mfairs, The Decennial
Census: An Analysis and Review, 96th Cong., 2d Sess., 461 (Comm.
Print 1980)). The tradition of publicity, of course, relates to the
tabulated information. The confidentiality of individual responses
has long been assured by statute. See 13 U. S. C. §§ 8(b), 9(a);
see also
Baldrige v.
Shapiro, 455 U. S. 345, 356-358
(1982).
819
821 (1985);
Southern R. Co. v.
Seaboard Allied Milling
Corp., 442 U. S.
444 (1979);
Morris v.
Gressette, 432 U. S. 491 (1977).
These are areas in which courts have long been hesitant to intrude.
The taking of the census is not such an area of traditional
deference.19
Nor is this an instance in which the statute is so broadly drawn
that "'there is no law to apply.'''
Citizens to Preserve Overton
Park, Inc. v.
Volpe, 401 U. S. 402, 410 (1971)
(quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). The
District Court found that the overall statutory scheme and the
Census Bureau's consistently followed policy provided "law to
apply" in reviewing the Secretary's exercise of discretion. 785 F.
Supp., at 262. As the District Court explained, the relationship of
the census provision contained in 13 U. S. C. § 141 and the
apportionment provision contained in 2 U. S. C. § 2a demonstrates
that the Secretary's discretion is constrained by the requirement
that she produce a tabulation of the "whole number of persons in
each State." 2 u. S. C. § 2a(a).20 This statutory command also
19 The great weight of authority supports the view that the
conduct of the census is not "committed to agency discretion by
law." See,
e. g., Carey v.
Klutznick,
637 F.2d
834 (CA2 1980);
New York v.
United States
Dept. of Commerce, 739 F. Supp. 761 (EDNY 1990);
New
York v.
United States Dept. of Commerce, 713 F. Supp. 48
(EDNY 1989);
Cuomo v.
Baldrige, 674 F. Supp. 1089
(SDNY 1987);
Willacoochee v.
Baldrige, 556 F. Supp.
551 (SD Ga. 1983);
Carey v.
Klutznick, 508 F. Supp.
404 (SDNY
1980); Philadelphia v.
Klutznick, 503 F.
Supp. 663 (ED Pa. 1980);
Young v.
Klutznick, 497 F.
Supp. 1318 (ED Mich. 1980), rev'd on other grounds,
652 F.2d
617 (CA6 1981), cert. denied
sub nom. Young v.
Baldrige, 455
20 The Census Act provides various other rules, as well, that
limit the Secretary's discretion. For example, the statute requires
the Secretary to take a decennial census of population "as of the
first day of April" in every 10th year. 13 U. S. C. § 141(a). Thus,
persons who die in February or March, or who are not born until
Mayor June, are not to be counted. The fact that the statute gives
the Secretary broad discretion with respect to the "form and
content" of the census surely does not mean that she could lawfully
count persons who predeceased the census date or who were
820
Opinion of STEVENS, J.
embodies a duty to conduct a census that is accurate and that
fairly accounts for the crucial representational rights that depend
on the census and the apportionment. The "usual residence" policy
that has guided the census since 1790 provides a further standard
by which to evaluate the Secretary's exercise of discretion. See
generally
Heckler v.
Chaney, 470 U. S., at 836;
Motor Vehicle Mfrs. Assn. of United States, Inc. v.
State
Farm Mut. Automobile Ins. Co., 463 U. S. 29, 41-43
(1983);
Padula v.
Webster, 822
F.2d 97, 100, 261 U. S. App. D. C. 365, 368 (1987). The
District Court was clearly correct in concluding that the statutory
framework and the long-held administrative tradition provide a
judicially administrable standard of review.21
IV
For the reasons stated in Part IV of the Court's opinion, I
agree that the inclusion of overseas employees in state census
totals does not violate the Constitution.22 I turn now to
born thereafter. Similarly, it would be plain error to count as
Massachusetts residents a family that moved from New York to Boston
on June 1.
21 Nothing in the language of the statute or in the overall
statutory scheme supports the Secretary's alternative argument that
this is an instance in which the relevant "statutes preclude
judicial review." 5 U. S. C. § 701(a)(I). In the absence of express
statutory language, we have generally reserved that exception for
cases in which the existence of an alternative review procedure
provided "clear and convincing evidence,"
Bowen v.
Michigan Academy of Family Physicians, 476 U. S. 667, 671 (1986)
(citations and internal quotation marks omitted), of a legislative
intent to preclude judicial review. See,
e. g., Department of
Navy v.
Egan, 484 U. S. 518, 530-533
(1988);
NLRB v.
Food &
Commercial Workers,
484 U. S. 112,
130-133 (1987);
Block v.
Community Nutrition
Institute, 467 U.
S. 340, 346-348 (1984). No such alternative scheme appears
here. The ability of Congress, itself, to resolve apportionment
issues by enacting new laws does not provide any evidence of an
intent to preclude judicial review.
22 I believe that appellees' challenge to the use of "home of
record" data also merits brief consideration.
The contention that overseas personnel may have little
connection with their "home of record" clearly has some force. A
person designates a
821
appellees' contention that the Secretary's decision to include
overseas federal employees was arbitrary and capricious and should
have been set aside under the APA.
With the exception of the census conducted in 1900, overseas
federal employees were not included in state census totals before
1970.23 In the census conducted in 1970, during the Vietnam War,
overseas military personnel were assigned to States for
apportionment purposes based on the "home of record" appearing in
their personnel files.24 The Bureau reverted to its previous policy
of excluding overseas employees from apportionment totals in the
1980 census. In explaining this decision, one of the reasons cited
by Bureau officials was the "unknown reliability" of the data
relied on to determine the "home State" of overseas personnel. App.
55. In discussions with the Bureau and in testimony before
Congress, officials of the Defense Department agreed that "home of
record" data had a high "error rate" and might have little
correlation with an employee's true feelings of affiliation. See
id., at 124, 183.
In July 1989, then-Secretary Mosbacher decided to include
overseas employees in state population figures in the 1990
"home of record" when entering the service and is not permitted
to change it thereafter. See App. 147, n. 5. This information may
therefore be quite stale, implicating the constitutional
requirements of accuracy and decenniality.
The special problems of including overseas personnel in the
census, though, necessitate difficult judgments about the best data
to use. In view of the discretion available to the Secretary in
formulating residence rules, the adoption of the "home of record"
principle cannot be said to transgress any constitutional command.
Accuracy in this context is clearly a comparative concept, and
appellees have not demonstrated that the constitutional requirement
of accuracy dictates a different method of determining
residence.
Like the District Court, I also conclude that the Secretary's
decision did not violate any specific provision of the Census Act.
See 785 F. Supp., at 266, n. 31.
23 See App. 175-177. 24 See
id., at 57.
822
Opinion of STEVENS, J.
census.25 The decision memorandum approved by the Secretary
described several reasons for this conclusion, including "growing
bipartisan concern of the Congress" and the belief of the Defense
Department that its employees should be included in apportionment
calculations because they considered themselves to be "usual
residents" of the United States.
Id., at 120. The prospect
of more accurate data than previously available also contributed to
the decision. The memorandum stated that the Defense Department's
plans to conduct an enumeration of its employees provided a
"significant reason" for the decision.
Id., at 121; see also
id., at 184. In December 1989, however, a lack of funds led
the Defense Department to cancel the survey.
Ibid. The
Secretary nevertheless adhered to the decision to include overseas
personnel.
In reaching the ultimate decision to allocate overseas federal
employees to States, the Secretary had an obligation to "examine
the relevant data and articulate a satisfactory explanation for
[the] action including a 'rational connection between the facts
found and the choice made.'"
State Farm, 463 U. S., at 43
(quoting
Burlington Truck Lines, Inc. v.
United
States, 371 U. S.
156, 168 (1962)). The District Court was properly concerned by
the scant evidence that the Secretary reconsidered the
apportionment policy following the cancellation of the Defense
Department survey. If the justification for the decision no longer
obtained, the refusal to reconsider would be quite capricious. The
District Court was certainly correct in concluding that "[i]nertia
cannot supply the necessary rationality" for the Secretary's
decision. 785 F. Supp., at 265.
While the question is a close one, two factors in particular
lead me to conclude that the decision to include overseas employees
ultimately rested on more than inertia. First, the Secretary
received assurances from the Defense Department
25Id., at 182.
823
that, even without the survey, information on overseas personnel
would be "supplemented and improved," App. 161, and would thus be
more accurate than the data available in the past. Moreover, while
the anticipated Defense Department survey played an important role
in the Secretary's initial decision, other factors cited in the
memorandum continued to support the Secretary's choice to include
overseas personnel.
The record could be more robust. However, the basis for the
agency's decision need not appear with "ideal clarity,"
Bowman
Transportation, Inc. v.
Arkansas-Best Freight System,
Inc., 419 U. S.
281, 286 (1974), as long as it is reasonably discernible. As
the Court explains, see
ante, Part IV; the Secretary had
discretion to include overseas personnel in the census count.
Although the hopes for more accurate data were not fully realized,
the record discloses that the decision to include overseas
personnel continued to be supported by valid considerations. I
therefore conclude that the decision of the Secretary was not
arbitrary or capricious.26
For these reasons, I concur in the Court's judgment, but only in
Part IV of its opinion.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I agree with the Court that appellees had no cause of action
under the judicial-review provisions of the Administrative
Procedure Act (APA), 5 U. S. C. § 701
et seq., and I
therefore join Parts I and II of its opinion.
Appellees have also challenged the constitutionality of the
allocation methods used by the Secretary of Commerce in conducting
the census. The Court concludes that they have
26 The record indicates that the Secretary considered the
alternative methods of allocating overseas employees to States and
that the choice of "home of record" data was certainly not
arbitrary or capricious. See,
e. g., App.162.
824
Opinion of SCALIA, J.
standing to assert these claims, but that the claims are
meritless.1 I disagree with the Court's conclusion on the standing
question, and therefore do not reach the merits. Our cases have
established that there are three elements to the "irreducible
constitutional minimum of standing" required by Article III: (1)
the plaintiffs must establish that they have suffered "injury in
fact"; (2) they must show causation between the challenged action
and the injury; and (3) they must establish that it is likely that
the injury will be redressed by a decision in their favor.
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560
(1992). Appellees have clearly satisfied the first two
requirements, but I think they founder on the third.
The plurality concludes that declaratory relief directed at the
Secretary alone would be sufficient to redress appellees' injury.
Ante, at 803. I do not agree. Ordering the Secretary to
recalculate the final census totals will not redress appellees'
injury unless the President accepts the new numbers, changes his
calculations accordingly, and issues a new reapportionment
statement to Congress, and the Clerk of the House then submits new
certificates to the States. 13 U. S. C. § 141(b); 2 u. S. C. § 2a.
I agree that, in light of the Clerk's purely ministerial role, we
can properly assume that insofar as
his participation is
concerned the sequence of events will occur. But as the Court
correctly notes,
ante, at 797-800, the President's role in
the reapportionment process is
not purely ministerial; he is
not "required to adhere to the policy decisions reflected in the
Secretary's report,"
ante, at 799. I do not think that for
purposes of the Article III redressability requirement we are
ever entitled to assume, no matter how objectively
reasonable the assumption may be, that the President (or, for that
matter, any official of the Ex-
1 Although only a plurality of the Court joins that portion of
JUSTICE O'CONNOR'S opinion which finds standing (Part III), I must
conclude that the
Court finds standing since eight Justices
join Part IV of the Court's opinion discussing the merits of
appellees' constitutional claims.
825
ecutive or Legislative Branches), in performing a function that
is not wholly ministerial, will follow the advice of a subordinate
official. The decision is by Constitution or law conferred upon
him, and I think we are precluded from saying that it is, in
practical effect, the decision of someone else. Indeed, judicial
inquiry into or speculation about the probability of such
"practical" subservience-never mind acting upon the outcome of such
inquiry or speculation-seems to me disrespectful of a coordinate
branch. On such a theory of redressability, suit would lie
(assuming injury-in-fact could be shown) against the members of the
President's Cabinet, or even the members of his personal staff, for
the almostsure-to-be-followed advice they give him in their
respective areas of expertise.
The plurality, however, has a different theory of
redressability. In its view, it suffices that the "authoritative
interpretation of the census statute and constitutional provision"
rendered by the District Court will induce the President to submit
a new reapportionment that is consistent with what the District
Court judgment orders the Secretary to submit.
Ante, at 803.
It seems to me this bootstrap argument eliminates, rather than
resolves, the redressability question. If courts may simply assume
that everyone (including those who are not proper parties to an
action) will honor the legal rationales that underlie their
decrees, then redressability will
always exist.
Redressability requires that the court be able to afford relief
through the exercise of its power, not through the
persuasive or even awe-inspiring effect of the opinion
explaining the exercise of its power. It is the Court's
judgment, in other words, its injunction to the Secretary of
Commerce, that must provide appellees relief-not its accompanying
excursus on the meaning of the Constitution.
Though the Court does not rely upon it, the judgment sought here
did run against the President of the United States. The
District Court's order expressly required, not
826
Opinion of SCALIA, J.
only that a new census tabulation be prepared, but also that the
President issue a new certification and that the Clerk of the House
forward the new apportionment to the 50 Governors. It is a
commentary upon the level to which judicial understanding-indeed,
even judicial awareness-of the doctrine of separation of powers has
fallen, that the District Court entered this order against the
President without blinking an eye. I think it clear that no court
has authority to direct the President to take an official act.
We have long recognized that the scope of Presidential immunity
from judicial process differs significantly from that of Cabinet or
inferior officers. Compare
Nixon v.
Fitzgerald,
457 U. S. 731,
750 (1982) ("The President's unique status under the Constitution
distinguishes him from other executive officials"), with
Harlow v.
Fitzgerald, 457 U. S. 800, 811, n. 17
(1982) ("Suits against other officials-including Presidential
aides-generally do not invoke separation-of-powers considerations
to the same extent as suits against the President himself").
Although we held in
United States v.
Nixon, 418 U. S. 683 (1974),
that the President is not
absolutely immune from judicial
process, see also
United States v.
Burr, 25 F. Cas.
30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.) (upholding
subpoena directed to President Jefferson), the order upheld there
merely required the President to provide information relevant to an
ongoing criminal prosecution, which is what any citizen might do;
it did not require him to exercise the "executive Power" in a
judicially prescribed fashion. We have similarly held that Members
of Congress can be subpoenaed as witnesses, see
Gravel v.
United States, 408 U. S. 606, 615
(1972), citing
United States v.
Cooper, 4 Dall. 341
(CC Pa. 1800) (Chase, J., sitting on Circuit), though there is no
doubt that we cannot direct
them in the performance of their
constitutionally prescribed duties, see
Eastland v.
United States Servicemen's Fund, 421 U. S. 491 (1975)
(refusing to enjoin the issuance of a congressional subpoena).
827
I am aware of only one instance in which we were specifically
asked to issue an injunction requiring the President to take
specified executive acts: to enjoin President Andrew Johnson from
enforcing the Reconstruction Acts. As the plurality notes,
ante, at 802-803, we emphatically disclaimed the authority
to do so, stating that" 'this court has no jurisdiction of a bill
to enjoin the President in the performance of his official
duties.'"
Mississippi v.
Johnson, 4 Wall. 475, 501
(1867). See also C. Burdick, The Law of the American Constitution
§50, pp. 126-127 (1922); C. Pyle & R. Pious, The President,
Congress, and the Constitution 170 (1984) ("No court has ever
issued an injunction against the president himself or held him in
contempt of court"). The apparently unbroken historical tradition
supports the view, which I think implicit in the separation of
powers established by the Constitution, that the principals in whom
the executive and legislative powers are ultimately vested-viz.,
the President and the Congress (as opposed to their agents)-may not
be ordered to perform particular executive or legislative acts at
the behest of the Judiciary.2
For similar reasons, I think we cannot issue a declaratory
judgment against the President. It is incompatible with his
constitutional position that he be compelled personally to defend
his executive actions before a court. Many of the reasons we gave
in
Nixon v.
Fitzgerald, supra, for acknowledging an
absolute Presidential immunity from civil damages for official acts
apply with equal, if not greater, force to requests for declaratory
or injunctive relief in official-capacity suits that challenge the
President's performance of executive functions: The President's
immunity from such judicial relief is
2 In
Mississippi v.
Johnson, 4 Wall. 475 (1867),
we left open the question whether the President might be subject to
a judicial injunction requiring the performance of a purely
"ministerial" duty, see
id., at 498-499; cf.
Kendall
v.
United States ex rel. Stokes, 12 Pet. 524 (1838)
(Postmaster General);
Marbury v.
Madison, 1 Cranch
137 (1803) (Secretary of State). As discussed earlier, the
President's duty here was not that.
828
Opinion of SCALIA, J.
"a functionally mandated incident of the President's unique
office, rooted in the constitutional tradition of the separation of
powers and supported by our history."
Id., at 749; see also
id., at 749-757;
id., at 760-764 (Burger, C. J.,
concurring).3 Permitting declaratory or injunctive relief against
the President personally would not only distract him from his
constitutional responsibility to "take Care that the Laws be
faithfully executed," U. S. Const., Art. II, § 3, but, as more and
more disgruntled plaintiffs add his name to their complaints, would
produce needless head-on confrontations between district judges and
the Chief Executive. (If officialaction suits against the President
had been contemplated, surely they would have been placed within
this Court's original jurisdiction.) It is noteworthy that in the
last substantive section of
Nixon v.
Fitzgerald where
we explain why "[a] rule of absolute immunity for the President
will not leave the Nation without sufficient protection against
misconduct on the part of the Chief Executive," 457 U. S., at 757,
because of "[t]he existence of alternative remedies and
deterrents,"
id., at 758, injunctive or declaratory relief
against the President is not mentioned.
None of these conclusions, of course, in any way suggests that
Presidential action is
unreviewable. Review of the legality
of Presidential action can ordinarily be obtained in a suit seeking
to enjoin the officers who attempt to enforce the President's
directive, see,
e. g., Youngstown Sheet &
Tube
Co. v.
Sawyer, 343 U. S. 579 (1952);
Panama Refining Co. v.
Ryan, 293 U. S. 388
(1935)-just as unlawful legislative ac-
3 Although the relief granted in
Powell v.
McCormack, 395
U. S. 486 (1969), was only declaratory, and although we
reserved the question whether
coercive relief could properly
be granted against the congressional officers, we discussed the
issue of the form of relief only
after having concluded that
the actions of these officers were not protected by legislative
immunity,
id., at 517-518. Accordingly, nothing in the case
suggests that declaratory relief may be awarded for actions
protected by congressional (or Presidential) immunity.
829
tion can be reviewed, not by suing Members of Congress for the
performance of their legislative duties, see,
e. g., Powell
v.
McCormack, 395 U. S. 486, 503-506
(1969);
Dombrowski v.
Eastland, 387 U. S. 82 (1967);
Kilbourn v.
Thompson, 103 U. S. 168 (1881), but by
enjoining those congressional (or executive) agents who carry out
Congress's directive. Unless the other branches are to be entirely
subordinated to the Judiciary, we cannot direct the President to
take a specified executive act or the Congress to perform
particular legislative duties.
In sum, we cannot remedy appellees' asserted injury without
ordering declaratory or injunctive relief against appellant
President Bush, and since we have no power to do that, I believe
appellees' constitutional claims should be dismissed.4 Since I
agree with the Court's conclusion that appellees' constitutional
claims do not provide an alternative ground that would support the
judgment below, I concur in its judgment reversing the District
Court.
4 A contrary conclusion is not required by the fact that in
Department of Commerce v.
Montana, 503 U. S. 442 (1992), we
reached the merits of a challenge to the President's use of the
method of equal proportions in calculating the reapportionment.
"'[W]hen questions of jurisdiction have been passed on in prior
decisions
sub silentio, this Court has never considered
itself bound when a subsequent case finally brings the
jurisdictional issue before us.'''
Pennhurst State School and
Hospital v.
Halderman, 465 U. S. 89, 119 (1984)
(quoting
Hagans v.
Lavine, 415 U. S. 528, 533, n. 5
(1974)).
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