Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Appellants v. New York, et al.

Supreme Court briefNov 16, 2020

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No. 20-366

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DONALD J. TRUMP, PRESIDENT

OF THE UNITED STATES, ET AL.,

Appellants,

STATE OF NEW YORK, ET AL.,

Appellees.

---------------------------------♦--------------------------------On Appeal From The United States District Court

For The Southern District Of New York

---------------------------------♦--------------------------------BRIEF OF LOCAL GOVERNMENTS AS

AMICI CURIAE IN SUPPORT OF APPELLEES

---------------------------------♦--------------------------------JAMES R. WILLIAMS

County Counsel

GRETA S. HANSEN

RAPHAEL N. RAJENDRA

Counsel of Record

MARCELO QUIÑONES

KARUN TILAK

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding St.

East Wing, 9th Floor

San José, CA 95110

(408) 299-5900

raphael.rajendra@cco.sccgov.org

Attorneys for the County of

Santa Clara

Counsel for Amici Curiae

[Additional Counsel Listed On Signature Pages]

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICI CURIAE .........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

II.

Since the Founding, All Persons Whose

Usual Abode is in a State Have Been

Counted for Purposes of Apportionment .....

Undocumented Immigrants Are Usual Residents With Substantial, Often Enduring

Ties to Amici’s Communities....................... 12

A. Undocumented Immigrants Are Inhabitants of the Communities Where They

Live ...................................................... 13

B. Undocumented Immigrants Have Substantial Ties And Make Important Contributions to Amici’s Communities ....... 17

III.

Excluding Undocumented Immigrants

From the Apportionment Base Harms All

Members of Amici’s Communities ............... 24

CONCLUSION..................................................... 30

TABLE OF AUTHORITIES

Page

CASES

City of San Jose v. Trump,

___ F. Supp. 3d ___, 2020 WL 6253433

(N.D. Cal. Oct. 22, 2020) ................................. 9, 10, 11

Dep’t of Commerce v. New York,

___ U.S. ___, 139 S. Ct. 255 (2019) ..........................12

Evenwel v. Abbott,

___ U.S. ___, 136 S. Ct. 1120 (2016) ... 8, 24, 26, 28, 29

Federation for American Immigration

Reform (“FAIR”) v. Klutznick,

486 F. Supp. 564 (D.D.C. 1980) ............................. 8, 9

Franklin v. Massachusetts,

505 U.S. 788 (1992) ...................................................8

Kirkpatrick v. Preisler,

394 U.S. 526 (1969) .................................................28

McCormick v. United States,

500 U.S. 257 (1991)............................................... 26, 29

New York v. Trump,

___ F. Supp. 3d ___, 2020 WL 5422959

(S.D.N.Y. Sept. 10, 2020) ..................................... 3, 26

Reynolds v. Sims,

377 U.S. 533 (1964) .................................................27

Wesberry v. Sanders,

376 U.S. 1 (1964) .......................................................8

Wisconsin v. City of New York,

517 U.S. 1 (1996) .....................................................12

iii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTION AND STATUTES

U.S. Const. art. I, § 2, cl. 3.............................................7

U.S. Const. amend. XIV, § 2 ............................ 10, 11, 12

2 U.S.C. § 2a(a) ............................................................11

OTHER AUTHORITIES

American Immigration Council, Immigrants in

Texas (Aug. 6, 2020) .......................................... 18, 20

Amicus Br. of Tim Cook, Deirdre O’Brien and

Apple, Dep’t of Homeland Security v. Regents

of the Univ. of California, Case Nos. 18-587,

18-588, 18-589 (2020) ..............................................20

Bardis Vakili et al., Discharged, then Discarded:

How U.S. veterans are banished by the country

they swore to protect, ACLU of California (July

2016) ........................................................................23

Brittny Mejia, It’s not just people in the U.S. illegally – ICE is nabbing lawful permanent residents too, L.A. Times (June 28, 2018) .....................15

Cong. Globe 39th Cong., 1st Sess. (1866) ............... 9, 10

Craig A. Bond et al., Tour Lengths, Permanent

Changes of Station, and Alternatives for Savings and Improved Stability, 68 Rand Corporation (2016) ............................................................16

Dan Kosten, Immigrants as Economic Contributors: Immigrant Tax Contributions and

Spending Power, National Immigration Forum (Sept. 6, 2018) ..................................................21

TABLE OF AUTHORITIES—Continued

Page

Don Kerwin, et al., U.S. Foreign-Born Essential

Workers by Status and State, and the Global

Pandemic, Center for Migration Studies (May

2020) .................................................................. 22, 23

Enhancing Public Safety in the Interior of the

United States, 82 Fed. Reg. 8799 (Jan. 25,

2017) ........................................................................17

Enrico A. Marcelli and Manuel Pastor, Unauthorized and Uninsured: East Oakland and

Alameda County, San Diego State University

and the University of Southern California

(2015) ................................................................. 14, 18

Expanding the Electorate to Raise the Voices of

All Parents in the Los Angeles Uniﬁed School

District, Res. 001-19/20 (Gonez), Board of Education of the City of Los Angeles, Regular

Meeting Order of Business (Nov. 5, 2019) ........ 19, 25

Immigrants as Essential Workers During

COVID-19, Testimony of Tom Jawetz, Vice

President for Immigration Policy at Center for

American Progress, before the U.S. House Judiciary Subcommittee on Immigration and

Citizenship (Sept. 28, 2020) .............................. 22, 23

Jesse H. Choper, Consequences of Supreme

Court Decisions Upholding Individual Constitutional Rights, 83 Mich. L. Rev. 1 (1984) ..............27

John Ash, The New and Complete Dictionary of

the English Language, Vol. 1, 1775 ..........................8

TABLE OF AUTHORITIES—Continued

Page

Joseph Hayes and Laura Hill, Undocumented

Immigrants in California, Public Policy Institute of California (Mar. 2017) ............... 14, 15, 19, 20

Manya Brachear Pashman, Green card veteran

facing deportation starts hunger strike, Chicago Tribune (Feb. 1, 2018) .....................................15

Memorandum from Christopher C. Krebs, Director, Cybersecurity and Infrastructure Security Agency (CISA), Advisory Memorandum

on Identiﬁcation of Essential Critical Infrastructure Workers During Covid-19 Response

(Mar. 28, 2020) .........................................................22

Memorandum on Excluding Illegal Aliens from

the Apportionment Base Following the 2020

Census, 85 Fed. Reg. 44,679 (July 23, 2020) .... passim

Migration Policy Institute, Proﬁle of the Unauthorized Population: Alameda County, CA .............14

Migration Policy Institute, Proﬁle of the Unauthorized Population: Cook County, IL .....................14

Migration Policy Institute, Proﬁle of the Unauthorized Population: Dallas County, TX ........... 19, 20

Migration Policy Institute, Proﬁle of the Unauthorized Population: Santa Clara County,

CA ................................................................ 14, 18, 20

Migration Policy Institute, Proﬁle of the Unauthorized Population: Travis County, TX............ 19, 20

Migration Policy Institute, Unauthorized Immigrant Population Proﬁles ...................................... 3, 4

TABLE OF AUTHORITIES—Continued

Page

New American Economy, Undocumented Immigrants .......................................................................21

Pew Research Center, U.S. unauthorized immigrant population estimates by state, 2016 (Feb.

5, 2019) ....................................................................14

1 Records of the Federal Convention of 1787 (M.

Farrand ed. 1911) ......................................................8

Sara Kimberlin and Aureo Mesquita, No Safety

Net or Federal COVID-19 Relief: California’s

Undocumented Workers and Mixed Status

Families Are Locked Out of Support, California Budget & Policy Center (Apr. 2020) .................18

Stephen Ansolabehere & James M. Snyder Jr.,

The End of Inequality, One Person, One Vote

and the Transformation of American Politics

(2008) ................................................................. 27, 28

Sylia Mathema, State-by-State Estimates of the

Family Members of Unauthorized Immigrants,

Center for American Progress (Mar. 16, 2017) ........18

U.S. Advisory Comm’n on Intergovernmental

Relations, Apportionment of State Legislatures (1962) .............................................................27

U.S. Citizenship & Immigration Services, Number of Form I-821D, Consideration of Deferred

Action for Childhood Arrivals 2012-2017 (last

visited Nov. 1, 2020) ................................................15

INTEREST OF AMICI CURIAE

Amici are diverse local jurisdictions that collectively represent several million residents.1 For at least

a decade, amici’s communities will be profoundly affected if the President’s Memorandum directing the

categorical exclusion of all undocumented immigrants2

from the apportionment base is implemented. Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census, 85 Fed. Reg.

44,679 (July 23, 2020) (hereinafter the “Memorandum”).

The Memorandum is purportedly premised on the

President’s determination that undocumented immigrants are not “inhabitants” of a state entitled to be

counted for purposes of determining representation.

See, e.g., Appellants’ Br. at 12. Not only is this inconsistent with constitutional and statutory language

and history, but as amici’s experience demonstrates,

undocumented immigrants are inhabitants of amici’s

jurisdictions under any deﬁnition of the word.

The parties have consented to the ﬁling of this brief; their

written consents are on ﬁle with the Clerk. No counsel for a party

authored this brief in whole or in part, and no party or counsel for

a party made a monetary contribution intended to fund its preparation or submission. No person other than the amici or their

counsel made a monetary contribution to the preparation or submission of this brief.

Throughout the brief, amici use the term “undocumented

immigrants” or “undocumented individuals” to refer to immigrants who are not in a lawful immigration status. This includes

individuals who entered the United States without authorization

as well as those who legally immigrated to the United States but

have since lost their lawful immigration status.

Undocumented immigrants are longstanding residents of amici’s communities, with enduring familial,

economic, and cultural ties. And just like other residents of amici’s jurisdictions, undocumented residents

participate fully in many aspects of community life:

they attend locally run public schools, use government

healthcare facilities, are an indispensable part of local

labor forces, and pay taxes to local, state, and federal

governments.

The Memorandum’s claim that undocumented residents may be excluded from the apportionment base

is therefore fundamentally divorced from the undeniable lived reality in amici’s jurisdictions that undocumented individuals meaningfully and substantially

inhabit amici’s communities. The Memorandum would

deprive all of amici’s residents—not just undocumented individuals—of full and equitable representation. Many amici are localities in states that are home

to signiﬁcant numbers of undocumented residents, and

thus may be deprived of congressional seats to which

they would otherwise be entitled under the Memorandum. As the Memorandum itself appears to

acknowledge, California—where amici the Counties of

Santa Clara and Alameda and the Cities of Alameda,

Santa Cruz, and Santa Monica are located—is home to

approximately 2.2 million undocumented residents

and stands to lose one or more congressional seats if

these residents are excluded. Similarly, Texas, which

is where amici Travis County, Dallas County, and

Cameron County are located, is home to an estimated

1.6 million undocumented immigrants and “will almost certainly . . . lose a seat in Congress” under the

Memorandum. New York v. Trump, ___ F. Supp. 3d ___,

2020 WL 5422959, at *11 (S.D.N.Y. Sept. 10, 2020).3 Illinois, home to nearly 500,000 undocumented immigrants, could also lose a seat. Id.4

Moreover, amici’s communities represent a significant population of undocumented residents within

these states. For example, approximately seven percent of the 1.9 million people living in Santa Clara

County are undocumented, and the greater Sacramento metro area is home to an estimated 60,000 undocumented immigrants.5 Alameda County, which

includes the City of Alameda, is home to roughly

109,000 undocumented immigrants.6 Cook County is

home to more than 300,000 undocumented immigrants,

and Dallas County has an undocumented population

See also Migration Policy Institute, Unauthorized Immigrant Population Proﬁles (last visited Nov. 9, 2020), https://

perma.cc/K457-P823.

Id.

Id.; Pew Research Center, Estimates of U.S. unauthorized

immigrant population, by metro area, 2016 and 2007 (Mar. 11,

2019), https://perma.cc/9MX4-3BBA.

Migration Policy Institute, Unauthorized Immigrant Population Proﬁles, supra.

of about 247,000.7 With high concentrations of community members who will be omitted from the apportionment base under the Memorandum, amici have a

particular interest in the legality of the Memorandum

and would suffer particular harm if it is allowed to go

into effect.

Amici are: the County of Santa Clara, Calif., the

County of Alameda, Calif., the City of Sacramento, Calif., the City of Alameda, Calif., the City of Santa Cruz,

Calif., the City of Santa Monica, Calif., Cook County,

Ill., the County of Dallas, Tex., the County of Cameron,

Tex., and the County of Travis, Tex.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Since its founding, the United States has counted

all persons residing in a state when allocating congressional representation among the states. This reﬂects

the policy decision made by the Framers of the United

States Constitution—and revisited and reafﬁrmed by

the drafters of the Fourteenth Amendment—that all

members of a community, regardless of immigration

status, are entitled to representation and have a stake

in legislation that affects their daily lives.

Id.

The Memorandum’s attempt to remove undocumented immigrants from the population count—based

on the premise that they are not “inhabitants”—is a

radical deviation from two centuries of settled law and

policy. And it is blind to the reality, reﬂected in amici’s

jurisdictions and communities across the country, that

undocumented individuals, like all residents, are integral members of the community. Many have spent

much of their lives in this country and have U.S. citizen

or legal permanent resident family members. They

make invaluable economic contributions to communities nationwide and perform critical jobs that help

keep everyone safe and healthy—including as essential workers on the front lines of the COVID-19 pandemic and as members of the U.S. military. Just like

other community members, they attend local schools,

are treated in local hospitals, are part of the local labor

force, and pay taxes in the communities in which they

live.

The Memorandum claims that undocumented individuals can be erased from the population upon

which this country’s representative democracy is

formed. Yet the fact remains that these people have always been, and will continue to be, important parts of

amici’s communities. And while they cannot vote, they

are no less constituents of the congressmembers

elected to represent these communities. Voters and

non-voters alike—including people who are undocumented—have an important stake in critical policy debates that affect daily life in amici’s communities,

including on public health and healthcare policy,

education, and workers’ rights. In this respect, the

Memorandum’s attempt to artiﬁcially deﬂate the

population for purposes of allocation of congressional

representatives will harm everyone in amici’s communities and states. Because the Memorandum would allocate representatives based on a calculation that does

not reﬂect the true constituency of these states, federal

representatives in states like amici’s will have to be responsive to a signiﬁcantly larger number of people

than representatives in other parts of the country. This

will result in inequitable and ineffective representation, as representatives in amici’s states will have less

time and resources to devote to addressing the needs

of each of their constituents—native born and immigrant alike—compared to representatives in other

states.

---------------------------------♦---------------------------------

ARGUMENT

By purporting to exclude undocumented individuals from the apportionment base, the Memorandum violates the fundamental policy of representation based

on total population articulated by the Framers and by

subsequent Congresses; is untethered from the reality

that undocumented immigrants are “inhabitants” in

every sense of the word, often with enduring ties to

amici’s communities; and undermines representational equality nationwide.

Since the Founding, All Persons Whose Usual

Abode is in a State Have Been Counted for

Purposes of Apportionment.

The constitutional and statutory underpinnings of

congressional apportionment uniformly reﬂect a policy

decision, originally made by the Framers of the Constitution and consistently reafﬁrmed since, that representation should include all persons whose usual

abode or usual residence is in a state, regardless of

their immigration status, age, or eligibility to vote.

The Enumeration Clause of the United States

Constitution, drafted in 1787, requires that representation in Congress be apportioned among the states

based on the number of “persons” in each state, including those bound to terms of service and three ﬁfths of

all enslaved people, but excluding Indians not taxed.

U.S. Const. art. I, § 2, cl. 3. Appellants do not appear to

dispute that undocumented individuals are “persons,”

but instead rely on the term “inhabitants”—which was

used in an earlier draft of the clause but does not appear anywhere in the ratiﬁed text—to justify the Memorandum’s policy of excluding individuals without

lawful immigration status.

Appellants’ linguistic gymnastics are irrelevant.

Even if one were to rely on the use of “inhabitants” in

the draft language rather than the ratiﬁed text of the

Enumeration Clause, the Framers’ intent is clear: the

only prerequisite for being counted for purposes of apportionment is usual residence in a community. For example, a contemporary dictionary deﬁned “inhabitant”

simply as “[a] dweller; one that resides in a place.” John

Ash, The New and Complete Dictionary of the English

Language, Vol. 1, 1775. And in the debates of the Constitutional Convention, the Framers endorsed the

principle that “every individual of the community at

large” is entitled to be counted for purposes of representation, regardless of their ability to vote. 1 Records

of the Federal Convention of 1787 at 473 (M. Farrand

ed. 1911) (hereinafter “Farrand”) (notes of Rep. Robert

Yates describing speech by Alexander Hamilton); see

also Wesberry v. Sanders, 376 U.S. 1, 14 (1964) (noting

that the Framers settled on the principle of “equal representation for equal numbers of people”); Federation

for American Immigration Reform (“FAIR”) v. Klutznick, 486 F. Supp. 564, 576 (D.D.C. 1980) (“The Framers must have been aware that this choice of words

would include women, children, bound servants, convicts, the insane and aliens. . . .”). Indeed, the Census

Act of 1790—passed by the ﬁrst Congress, which included several Framers—required the enumeration of

everyone whose “usual place of abode” is, or who “usually resides,” in the United States. See Franklin v. Massachusetts, 505 U.S. 788, 804 (1992) (describing “usual

residence” in the ﬁrst Census Act as the “gloss” given

to the Enumeration Clause).

The Framers’ concept of representation—i.e., that

everyone usually residing in a community must be

counted—was revisited less than a century later, after

the Civil War. In the debates over the Fourteenth

Amendment, Congress considered proposals to limit

the apportionment base to voters. See Evenwel v.

Abbott, ___ U.S. ___, 136 S. Ct. 1120, 1128 (2016). In

rejecting these proposals, both houses of Congress extensively debated the issue of whether to count foreigners not naturalized, and speciﬁcally considered the

prospect that some states would gain additional representation based on their proportionately larger populations of immigrants. See City of San Jose v. Trump,

___ F. Supp. 3d __, 2020 WL 6253433, at *3-4 (N.D. Cal.

Oct. 22, 2020) (reviewing the debates over the Fourteenth Amendment); FAIR, 386 F. Supp. at 576 (noting

that proposals to limit the apportionment base to voters were rejected in part because they would dilute

representation in Congress for certain states with

large populations of immigrants).8

See also, e.g., Cong. Globe 39th Cong., 1st Sess. 359 (Jan.

22, 1866) (statement of Rep. Conkling) (“Many of the large States

now hold their representation in part by reason of their aliens,

and the Legislatures and people of these States are to pass upon

the amendment. It must be acceptable to them.”); id. at 432 (Jan.

25, 1866) (statement of Rep. Bingham) (opposing a provision that

would base representation on male citizens over 21 because it

would “strike from the basis of representation the entire immigrant population not naturalized,” which was disproportionately

present in the northern states); id. at 705 (Feb. 7, 1866) (statement of Sen. Fessenden) (discussing concern of western states

with “a large number of foreigners” that limiting the basis of apportionment to citizens would result in those states having “no

beneﬁt of political power in the legislation of the country arising

from the number of those foreigners who make a portion of their

population”); id. at 2986 (June 6, 1866) (statement of Sen. Sherman) (providing as example of why representation should be

based on voters: “There is no reason why, because in the city of

New York there is a very large element of unnaturalized foreigners, a voter in the city of New York should have more political

power than a voter anywhere else.”).

Ultimately, the drafters of the Fourteenth Amendment reafﬁrmed that representation would be based

on the number of “persons” in each State, not voters.

U.S. Const. amend. XIV, § 2. This reﬂected a recognition

that “women, children, and other non-voting classes”—

including immigrants and foreigners not naturalized—all “have as vital an interest in the legislation of

the country as those who actually deposit the ballot.”

Cong. Globe, 39th Cong., 1st Sess. 141 (1866) (statement of Rep. James G. Blaine); id. at 1256 (statement

of Sen. Henry Wilson) (noting that the Fourteenth

Amendment “cannot throw[ ] out of the basis at least

two and a half millions of unnaturalized foreign-born

men and women.”); see also FAIR, 486 F. Supp. at 567

(concluding that “Congress was aware of the allinclusive scope of the language it was adopting” in

the Fourteenth Amendment). The simple fact that an

individual resided in the community—not his or her

immigration status—was the relevant inquiry for purposes of enumeration and apportionment.

Even after Congress began regulating immigration in 1875, it reafﬁrmed that immigrants—regardless of lawful status—were entitled to be counted for

purposes of representation. Of greatest relevance here,

in enacting the Reapportionment Act of 1929, Congress

debated multiple proposals to speciﬁcally exclude unlawfully present immigrants from the apportionment

base, a population that may have numbered between

3-4 million people. See City of San Jose, 2020 WL

6253433, at *5-6 (discussing the debates over the Reapportionment Act, including on whether to count

those “ ‘who enjoy no legal status [and] are subject to

deportation if the Government could ﬁnd them’ ” (citation omitted)). But the Senate Legislative Counsel and

several members of Congress understood that the

Fourteenth Amendment required counting all persons,

and that excluding undocumented immigrants from

apportionment would therefore be unconstitutional.

Id. at *5. As such, the Reapportionment Act, as enacted, hewed to the language of the Fourteenth

Amendment: it requires that the President transmit to

the Congress “a statement showing the whole number

of persons in each State, excluding Indians not taxed.”

2 U.S.C. § 2a(a).9

In the years since the Reapportionment Act, Congress has on numerous occasions debated the exclusion

of undocumented immigrants from the apportionment

base. Each such proposal has been rejected. City of San

Jose, 2020 WL 62534333, at *7. Further, in more than

two centuries of administering the decennial census,

the Executive Branch has never attempted to exclude

immigrants residing in a community from the apportionment count, and indeed, has repeatedly taken the

view that the constitution requires that undocumented

immigrants usually residing in a state be included in

the apportionment base. Id. at *7-8. This settled historical practice further conﬁrms that the Enumeration

Regardless of whether the congressional debate over the

Reapportionment Act provides persuasive authority on the meaning of the Fourteenth Amendment, these debates clearly establish

that the Reapportionment Act itself was intended to include undocumented immigrants in the population count.

Clause and Fourteenth Amendment have never been

understood to permit the exclusion of residents in a

community purely based on their immigration status.

See Dep’t of Commerce v. New York, ___ U.S. ___, 139

S. Ct. 2551, 2567 (2019) (“[A]s in other areas, [judicial]

interpretation of the Constitution is guided by a Government practice that has been open, widespread, and

unchallenged since the early days of the Republic.”);

Wisconsin v. City of New York, 517 U.S. 1, 21 (1996)

(emphasizing “the importance of historical practice in”

understanding the Enumeration Clause speciﬁcally).

Thus, while Appellants attempt to manufacture

ambiguities in the term “inhabitants,” the through-line

of constitutional and statutory language and history is

pellucid: since the Founding, the population count for

purposes of representation has always been construed

to include all persons who usually reside in a community, regardless of their immigration status. The Memorandum, therefore, represents an unlawful and

unprecedented rejection of the concept of representational democracy articulated by the Framers and repeatedly and without exception reafﬁrmed over the

last two centuries.

II.

Undocumented Immigrants Are Usual Residents With Substantial, Often Enduring

Ties to Amici’s Communities.

Not only is the Memorandum’s exclusion of undocumented immigrants anathema to the plain language

and intent of the relevant constitutional and statutory

provisions, but it is also squarely at odds with the reality in amici’s jurisdictions and communities across

this country. Contrary to Appellants’ portrayal, undocumented immigrants are neither a monolith nor a

transient population without meaningful links to their

communities. Appellants’ Br. at 38, 43. Rather, these

individuals are often longstanding members of amici’s

communities with deep familial, economic, and cultural ties.

A. Undocumented Immigrants Are Inhabitants of the Communities Where They

Live.

As discussed in Part I, supra, since the founding,

usual residence in a community has been the only prerequisite for individuals—other than Indians not

taxed—to be counted in the apportionment base. Appellants contend that “residence within a jurisdiction”

is not sufﬁcient, but that there must also be “an intent

to remain there indeﬁnitely” in order to establish inhabitancy for purposes of the apportionment count.

Appellants’ Br. at 34. But whether the Court accepts

Appellants’ heightened standard for residency or not,

undocumented immigrants clearly qualify as usual

residents entitled to be counted.

Almost two-thirds of undocumented immigrants

in the United States have lived here for 10 or more

years.10 Reliable estimates indicate that ninety percent

of undocumented immigrants in California, 89 percent

of those in Illinois, and 84 percent in Texas, have been

in the country for more than ﬁve years.11 The same is

true in amici’s jurisdictions. For example, 80 percent of

undocumented residents in Santa Clara County and

81 percent of the undocumented residents of Alameda

County have resided in the country for ﬁve or more

years.12 In fact, in neighborhoods in East Oakland,

which is part of Alameda County, the median length of

residency for the undocumented community is almost

a decade.13 Similarly, 85 percent of undocumented residents in Cook County, Illinois, have lived in the United

States for ﬁve or more years.14

Indeed, many of the individuals the Memorandum

would exclude have spent much of their lives in the

Joseph Hayes and Laura Hill, Undocumented Immigrants

in California, Public Policy Institute of California (Mar. 2017),

https://perma.cc/6JYB-8AP7.

Pew Research Center, U.S. unauthorized immigrant population estimates by state, 2016 (Feb. 5, 2019), https://perma.cc/

E7NW-W9DE.

Migration Policy Institute, Proﬁle of the Unauthorized

Population: Santa Clara County, CA (last visited Nov. 1, 2020),

https://perma.cc/7RCK-NEZ8; Migration Policy Institute, Proﬁle

of the Unauthorized Population: Alameda County, CA (last visited

Nov. 1, 2020), https://perma.cc/S9B2-N4Y6.

Enrico A. Marcelli and Manuel Pastor, Unauthorized and

Uninsured: East Oakland and Alameda County, San Diego State

University and the University of Southern California at 3 (2015),

https://perma.cc/F9AT-33A8.

Migration Policy Institute, Proﬁle of the Unauthorized Population: Cook County, IL (last visited Nov. 10, 2020), https://perma.

cc/XQ4N-74BM.

United States. This includes individuals brought to the

United States without lawful authorization as young

children, who know no country but this one. The federal government has recognized that these individuals

have an interest in remaining in the United States and

has protected 800,000 of these individuals from deportation through the Deferred Action for Childhood

Arrivals (“DACA”) program.15 Over 200,000 DACA recipients live in California, and over 106,000 live in Texas.16

Further, the Memorandum not only seeks to exclude those who entered without authorization, but

also individuals who originally immigrated legally to

the United States. This includes numerous green card

holders who have resided in the country for many decades, but no longer have lawful status, often due to minor offenses committed years ago.17 Nor does the

Memorandum acknowledge or account for the fact that

immigration status is often ﬂuid, not static: A person

who has entered the country without authorization or

lost lawful status may well obtain or regain lawful status, for example, if she is granted asylum, obtains

U.S. Citizenship & Immigration Services, Number of Form

I-821D, Consideration of Deferred Action for Childhood Arrivals

2012-2017 (last visited Nov. 1, 2020), https://perma.cc/QK42-3S2N.

Hayes and Hill, supra; American Immigration Council, Immigrants in Texas (Aug. 6, 2020), https://perma.cc/D945-NVTF.

See, e.g., Brittny Mejia, It’s not just people in the U.S. illegally – ICE is nabbing lawful permanent residents too, L.A. Times

(June 28, 2018), https://perma.cc/8NM4-PD3Z; Manya Brachear

Pashman, Green card veteran facing deportation starts hunger

strike, Chicago Tribune (Feb. 1, 2018), https://perma.cc/FP2L-K8QC.

temporary protected status, qualiﬁes for cancellation

of removal, gains citizenship through military service,

or marries a citizen or lawful permanent resident.

Appellants argue that even though undocumented

individuals may reside in the community for years or

decades, they are not usual residents and have no intent to remain in the country because they are subject

to removal by the government. See, e.g., Appellants’ Br.

at 38. Yet even aside from the fact that the 1929 Congress considered and rejected this view, the mere possibility that the federal government may at some

future date initiate removal proceedings does not justify excluding undocumented immigrants from the current apportionment base. Military personnel in the

United States, for example, are enumerated in the location of the military bases to which they are assigned,

despite the fact that the government often relocates

them to bases in other states, or to duty stations overseas, depending on the needs of the military. See, e.g.,

83 Fed. Reg. 5525, 5535 (Feb. 8, 2018) (conclusion of the

Census Bureau that military personnel in the United

States are enumerated at their residences on or off the

base to which they are assigned); see also Craig A.

Bond, et al., Tour Lengths, Permanent Changes of Station, and Alternatives for Savings and Improved Stability, at 1, 68 Rand Corporation (2016), https://perma.

cc/7RQX-72NR (noting that the Department of Defense “moves about one-third of its military servicemembers each year” and calculating that the average

time spent stationed in a particular location is 2.5

years for ofﬁcers and 3.1 years for enlisted personnel).

Moreover, as a factual matter, the prospect of removal is slim for many undocumented immigrants.

First, as discussed above, many hundreds of thousands

of undocumented immigrants are currently protected

by the DACA program. Second, numerous undocumented immigrants are not currently subject to removal proceedings, and, indeed, do not fall within the

enforcement priorities identiﬁed by the Administration. See Enhancing Public Safety in the Interior of the

United States § 5, 82 Fed. Reg. 8799, 8800 (Jan. 25,

2017) (identifying enforcement priorities). The Administration has not taken any action or indicated its intent to remove these individuals from the communities

where they reside and often have deep and abiding

ties, and it is unclear when, if at all, they might be subject to removal.

B. Undocumented Immigrants Have Substantial Ties And Make Important Contributions to Amici’s Communities.

Beyond their longstanding presence, undocumented immigrants are an inextricable part of community and economic life in amici’s jurisdictions.

Undocumented immigrants have deep familial

bonds to the United States and amici’s communities. A

signiﬁcant portion of undocumented immigrants live

in mixed-status households with U.S. citizen spouses

or children. Nationally, 16.7 million people live in a

mixed-status family with at least one undocumented

member.18 In California, 2 million U.S. born citizens—

including 1.6 million children—live in a household

with an undocumented family member, and nine in ten

undocumented parents have a U.S. citizen child.19 Similarly, 1.4 million Texans who are citizens live with at

least one undocumented family member, and one in

seven children in the state is a U.S. citizen with at least

one undocumented family member.20

The numbers of mixed-status households are also

signiﬁcant in amici’s jurisdictions. For example, in

Santa Clara County, one of every three undocumented

persons lives in a household with a U.S. citizen child.21

In East Oakland, which is within Alameda County,

about 35 percent of children reside with at least one

undocumented immigrant parent, and, of those children, 79 percent are U.S. citizens.22 Large numbers of

Sylia Mathema, State-by-State Estimates of the Family

Members of Unauthorized Immigrants, Center for American Progress (Mar. 16, 2017), https://perma.cc/4D34-3TFU; see also id.

(noting that nearly 400,000 U.S. born and naturalized citizens in

Illinois have at least one undocumented family member).

Id.; Sara Kimberlin and Aureo Mesquita, No Safety Net or

Federal COVID-19 Relief: California’s Undocumented Workers

and Mixed Status Families Are Locked Out of Support, California

Budget & Policy Center (Apr. 2020), https://perma.cc/QZ6V-VQDD.

American Immigration Council, supra.

Migration Policy Institute, Proﬁle of the Unauthorized

Population: Santa Clara County, supra.

Marcelli and Pastor, supra.

mixed-status households with U.S. citizen children

similarly reside in Dallas County and Travis County.23

The children of undocumented residents attend local schools alongside the children of other residents.

More than 13 percent of school-age children in Texas,

and more than 12 percent in California and roughly 8

percent in Illinois, have undocumented parents.24 Likewise, the Los Angeles Unified School District (“LAUSD”)

has recognized that “all parents in Los Angeles have

an equal stake in the important decisions made by” the

LAUSD Board—regardless of parents’ or students’ immigration status.25 As such, the LAUSD Board has

voted to explore possible ballot measures to extend the

right to vote in Board elections to all caregivers of children residing in LAUSD boundaries, regardless of immigration status.26

Undocumented immigrants are also a vital part of

the labor force in amici’s communities. Undocumented

residents make up 9 percent of the workforce in

Migration Policy Institute, Proﬁle of the Unauthorized

Population: Dallas County, TX (last visited Nov. 10, 2020),

https://perma.cc/9V4D-9M2T; Migration Policy Institute, Proﬁle

of the Unauthorized Population: Travis County, TX (last visited

Nov. 6, 2020), https://perma.cc/P463-S7DW.

Hayes and Hill, supra; Pew Research Center, U.S. unauthorized immigrant population estimates by state, 2016, supra.

Expanding the Electorate to Raise the Voices of All Parents

in the Los Angeles Uniﬁed School District, Res. 001-19/20 (Gonez),

Board of Education of the City of Los Angeles, Regular Meeting

Order of Business at pp. 5-6 (Nov. 5, 2019), https://perma.cc/

5TN4-PBQA.

Id.

California and 8 percent of workforce in Texas—and an

even higher share in several industries, like agriculture, food services, and construction.27 In Santa Clara

County, 74 percent of undocumented residents are part

of the labor force, and 69 percent are employed.28 For

example, the County employs undocumented immigrants who are DACA recipients in critical roles, including as in-home care aides to provide assistance

with activities of daily living to eligible aged, blind, and

disabled individuals who would otherwise be unable to

remain safely in their own homes. The County is also

home to numerous Silicon Valley tech companies,

many of which have similarly beneﬁted from employing undocumented DACA recipients. See, e.g., Amicus

Br. of Tim Cook, Deirdre O’Brien and Apple, Dep’t of

Homeland Security v. Regents of the Univ. of California, Case Nos. 18-587, 18-588, 18-589 (2020) (noting

that Apple has employed 443 DACA recipients). Labor

force participation and employment numbers for undocumented immigrants are similarly high in other

amici’s jurisdictions.29

Hayes and Hill, supra; Kimberlin and Mesquita, supra;

American Immigration Council, supra.

Migration Policy Institute, Proﬁle of the Unauthorized

Population: Santa Clara County, supra.

See, e.g., Migration Policy Institute, Proﬁle of the Unauthorized Population: Alameda County, supra; Migration Policy Institute, Proﬁle of the Unauthorized Population: Cook County,

supra; Migration Policy Institute, Proﬁle of the Unauthorized

Population: Dallas County, supra; Migration Policy Institute,

Proﬁle of the Unauthorized Population: Travis County, supra.

These individuals, therefore, are an integral and

irreplaceable part of the economy in amici’s jurisdictions. Nationwide, undocumented residents contributed $20 billion in federal taxes and $11.8 billion in

state and local taxes in 2018.30 They account for $3 billion in taxes in California and $1.6 billion in taxes in

Texas.31 As an illustration, if undocumented residents

were removed from the labor force—as the Memorandum seeks to remove them from the apportionment

base—the resulting labor shortage would reduce private sector output by between $381.5 billion and

$623.2 billion.32 Similarly, removing undocumented

residents as consumers would likely eliminate more

than $217 billion in spending.33

Not only do undocumented workers contribute signiﬁcantly to local economies, but they also work in areas critical to the safety, security, and health of our

communities—including during the present COVID-19

pandemic. For example, DACA recipients who participate in Santa Clara County’s New American Fellows

Program were assigned to assist with the County’s

emergency response effort. Undocumented workers

also play a vital role in industries that the federal

New American Economy, Undocumented Immigrants (last

visited Nov. 8, 2020), https://perma.cc/V9DA-A3XD.

Dan Kosten, Immigrants as Economic Contributors: Immigrant Tax Contributions and Spending Power, National Immigration Forum (Sept. 6, 2018), https://perma.cc/KU4C-D3HZ;

Kimberlin and Mesquita, supra; American Immigration Council,

supra.

Kosten, supra.

New American Economy, supra.

government has deemed to be part of the “critical infrastructure,” the operation of which is “imperative

during the response to the COVID-19 emergency for

both public health and safety as well as community

well-being.”34 Studies estimate that approximately

three out of four undocumented immigrants work in

these critical infrastructure sectors.35

For example, undocumented immigrants account

for 12 percent of employees in essential healthcare operations that are vital to treating those affected by the

virus.36 They make up more than 45 percent of workers

in the agriculture and food processing industries necessary to secure the nation’s food supply, at times risking exposure in work environments that have seen

some of the highest concentrations of COVID-19.37

Countless more undocumented employees ensure that

grocery store shelves are stocked and provide disinfecting, cleaning, and other essential sanitation services

Memorandum from Christopher C. Krebs, Director, Cybersecurity and Infrastructure Security Agency (CISA), Advisory

Memorandum on Identiﬁcation of Essential Critical Infrastructure Workers During Covid-19 Response (Mar. 28, 2020), https://

perma.cc/4ZFS-LYSM.

Immigrants as Essential Workers During COVID-19, Testimony of Tom Jawetz, Vice President for Immigration Policy at

Center for American Progress, before the U.S. House Judiciary

Subcommittee on Immigration and Citizenship (Sept. 28, 2020)

(hereinafter “Jawetz”), https://perma.cc/3W3N-7UBQ; Don Kerwin, et al., U.S. Foreign-Born Essential Workers by Status and

State, and the Global Pandemic, Center for Migration Studies

(May 2020), https://perma.cc/GSH9-TQB4.

Kerwin, et al., supra.

Jawetz, supra; Kerwin, supra.

that are necessary for businesses to operate safely during the pandemic.38

And beyond their vital role in addressing the

COVID-19 pandemic, many of those who would be excluded under the Memorandum are immigrants who

have demonstrated their allegiance to this country by

serving in the military, including in wartime deployments in Vietnam, the Gulf War, Iraq, and Afghanistan.39

Thus, the Memorandum’s unsupported conclusion

that the undocumented population are not inhabitants

with “an intent to remain here indeﬁnitely,” Appellants’ Br. at 34, simply does not correspond to lived reality. In amici’s experience, undocumented residents’

allegiance and enduring ties to this country and

amici’s communities is plainly evident: they have built

families in amici’s jurisdictions, have U.S. citizen

spouses and children, attend or send their children to

local schools, make valuable economic contributions to

the community, and play a vital role in critical professions that keep us safe and healthy.

Jawetz, supra; Kerwin, supra.

Bardis Vakili, et al., Discharged, then Discarded: How U.S.

veterans are banished by the country they swore to protect, ACLU

of California (July 2016), https://perma.cc/WS8G-ZEVC; see also

Pashman, supra.

III. Excluding Undocumented Immigrants From

the Apportionment Base Harms All Members

of Amici’s Communities.

While the Memorandum purports to erase undocumented immigrants from the population count used

to allocate congressional seats, these individuals will

nevertheless continue to be residents of amici’s communities and constituents of the congressmembers

elected to these seats. As this Court has recognized,

“the Framers of the Constitution and the Fourteenth

Amendment comprehended [that] representatives

serve all residents, not just those eligible or registered

to vote.” Evenwel, 136 S. Ct. at 1132. This is because

“[n]onvoters have an important stake in many policy

debates . . . and in receiving constituent services.” Id.

Just like any other resident, undocumented individuals are impacted by issues that affect the community and have a stake in legislative proposals to

address these issues.

The COVID-19 pandemic, for example, has had

grave public health and economic effects on all of

amici’s residents, undocumented or otherwise. Undocumented residents, just like other residents, seek

COVID-19 testing at public test sites and treatment at

public hospitals. Many are on the front lines as essential workers in critical infrastructure industries, including in hospitals, food processors, and disinfecting

service providers. See Part II.B, supra. And as with so

many other residents, the livelihoods of many undocumented workers have been severely disrupted. Indeed,

because undocumented immigrants are ineligible for

most currently available federal relief, they are even

more vulnerable to the economic hardships caused by

the pandemic. Thus, undocumented residents have at

least as much of an interest in solutions to this nationwide crisis as do other members of the community. And

because COVID-19 lays bare that everyone in the community affects everyone else, the whole community

beneﬁts when the particular needs and concerns of undocumented residents are addressed and they are involved in policy discussions about the pandemic.

Likewise, undocumented workers often work side

by side with native-born and other foreign-born workers and share a similar stake in federal legislation on

safe working conditions and protections against employment discrimination. And children who are undocumented and the children of undocumented parents

attend the same public schools as other residents.

These families have an interest in federal education

policy and legislation, including funding for schools

and programs under Title I, Title II, and the Individuals with Disabilities Education Act.40

By ignoring the reality that undocumented immigrants are constituents of their elected representatives, the Memorandum threatens to undermine

Indeed, at the local level, LAUSD has recognized that all

parents have an equal stake in decisions made by the LAUSD

Board, and has voted to explore granting all parents—regardless

of immigration status—a voice in the election of Board representatives. See Expanding the Electorate to Raise the Voices of All Parents in the Los Angeles Uniﬁed School District, supra.

representational equality in a way that will harm all

residents—including citizens and immigrants with

lawful status. As this Court has recognized, “[s]erving

constituents and supporting legislation that will beneﬁt the district and individuals and groups therein is

the business of a legislator.” McCormick v. United

States, 500 U.S. 257, 272 (1991). Similarly, representatives play an important role in drawing attention to,

and securing resources to address, local problems. But

“equitable and effective representation” can only be

achieved when “each representative is subject to requests and suggestions from the same number of constituents.” Evenwel, 136 S. Ct. at 1132.

The Memorandum, however, will artiﬁcially deﬂate the apportionment base by excluding undocumented constituents. This will skew the allocation of

congressional seats such that representatives in states

with signiﬁcant undocumented populations—like California, Texas, Florida, Arizona, New Jersey, New York,

and Illinois, New York v. Trump, 2020 WL 5422959, at

*11—will have more people in their districts than

representatives in other states. The ability of these

representatives to provide effective and equitable representation to all constituents will suffer as a result.

Representatives with more residents in their districts

will be disproportionately overburdened in terms of

the community needs they must address, and disproportionately underpowered in the amount of government inﬂuence they can bring to bear on these

problems, compared to representatives in less populated districts.

The history of intrastate legislative redistricting

provides a stark example of the inequity that results

from unequal representation. Before this Court’s ruling in Reynolds v. Sims, 377 U.S. 533 (1964), that legislative districts must have equal populations, districts

in each state had wildly different populations. In particular, densely populated urban areas had signiﬁcantly less proportional representation than sparsely

populated rural areas. As a result, state policy was

driven by rural districts; urban populations faced underfunding and local issues affecting urban areas went

unaddressed. See U.S. Advisory Comm’n on Intergovernmental Relations, Apportionment of State Legislatures 28 (1962), https://perma.cc/BY9N-VQEJ (ﬁnding

that the most pronounced effect of malapportionment

of legislative districts was on allocation of funding, labor, and welfare matters, and that the functions most

affected “involve problems closely tied to urban areas”);

Stephen Ansolabehere & James M. Snyder Jr., The

End of Inequality, One Person, One Vote and the Transformation of American Politics 68-74 (2008); (describing how representatives serving urban and suburban

communities struggled to address community needs

pre-Reynolds); Jesse H. Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 Mich. L. Rev. 1, 90-95 (1984) (noting

that states reapportioned after Reynolds “became more

responsive” to the needs of more populated areas).

A similar problem is likely to arise if the Memorandum is implemented, creating a disparity whereby

states with large undocumented populations will have

a larger population per congressional district than districts in other parts of the country. With more residents

in their districts, representatives in these states will

likely face a larger list of community issues and concerns requiring government attention as compared to

less-populated districts. For example, the need for

services like schools, police and ﬁre protection, transportation and infrastructure, and healthcare is proportional to the population—regardless of whether that

population is undocumented or not. But because these

representatives can only advocate for a limited number of issues, and because each representative is entitled to the same voting power regardless of the

population of his or her district, representatives in

more-populated districts will likely be unable to address a large swath of their community’s needs. See

generally Ansolabehere and Snyder, supra (ﬁnding

that transfers of public funds to a district increase proportionally with the district’s representation, and that

malapportionment leads to underfunding of more populous districts); Choper, supra (reviewing studies ﬁnding that reversing malapportionment of districts

produced more aid to previously under-represented

districts).

Likewise, elected representatives in these morepopulated districts will have less time to devote to each

constituent needing assistance—including for example

helping eligible residents “navigat[e] public beneﬁts

bureaucracies.” Evenwel, 136 S. Ct. at 1132; see also

Kirkpatrick v. Preisler, 394 U.S. 526, 531 (1969) (equalizing districts by total population avoids “diminution

of access to elected representatives” by all constituents,

including voters). Similarly, when it comes to debating

whether proposed legislation “will beneﬁt the district

and individuals and groups therein,” McCormick, 500

U.S. at 272, constituents in more-populated districts

will have less ability to voice their concerns and interests because their elected representatives will have to

divide their time between more affected individuals

and groups than representatives in less-populated districts.

Thus, contrary to Appellants’ arguments, there is

no basis to exclude undocumented individuals from

“the method by which ‘the people’ have chosen to distribute their power among themselves.” Appellants’ Br.

at 39. In fact, it is the Memorandum that will create “a

distortion of the people’s allocation of their sovereign

power.” Id. The text and history of the Enumeration

Clause and the Fourteenth Amendment make clear

that representation—and thus power—in this country

is distributed by counting all persons residing in the

community, regardless of immigration status, because

all community members are affected by, and have an

interest in, governmental decisions. See Evenwel, 136

S. Ct. at 1132; see also Part I, supra. By violating this

fundamental principle, the Memorandum undermines

the fair allocation of representation and disempowers

all residents—citizens and lawful immigrants included—in several states. As a result, communities

like amici’s will be underserved and underfunded.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, amici respectfully request that this Court afﬁrm the ruling below, permanently enjoining the Memorandum.

Respectfully submitted,

JAMES R. WILLIAMS

County Counsel

GRETA S. HANSEN

RAPHAEL N. RAJENDRA

Counsel of Record

MARCELO QUIÑONES

KARUN TILAK

OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA

70 West Hedding St.

East Wing, 9th Floor

San José, CA 95110

(408) 299-5900

raphael.rajendra@cco.sccgov.org

Counsel for Amici Curiae

November 16, 2020

ADDITIONAL COUNSEL

DONNA R. ZIEGLER

County Counsel

COUNTY OF ALAMEDA

1221 Oak Street

Oakland, CA 94612

(510) 272-6700

Attorney for the County of

Alameda, California

JESSICA M. SCHELLER

Chief, Advice, Business &

Complex Litigation

Division

COOK COUNTY STATE’S

ATTORNEY’S OFFICE

500 Richard J. Daley Center

Chicago, IL 60602

(312) 603-6934

Attorney for Cook County,

Illinois

JUAN A. GONZALEZ

DANIEL N. LOPEZ

CAMERON COUNTY

COMMISSIONERS COURT

1100 E. Monroe Street

Brownsville, TX 78520

(956) 550-1345

Attorneys for the County of

Cameron, Texas

RUSSELL H. RODEN

Assistant District Attorney

Dallas County District

Attorney’s Ofﬁce

133 N. Riverfront Blvd. LB 19

Dallas, TX 75207

(214) 653-5774

Attorney for County of

Dallas, Texas

DAVIS A. ESCAMILLA

Travis County Attorney

P.O. Box 1748

Austin, TX 78767

(512) 854-9415

Attorney for the County of

Travis, Texas

YIBIN SHEN

City Attorney

OFFICE OF THE CITY ATTORNEY

CITY OF ALAMEDA

2263 Santa Clara Ave.,

Room 280

Alameda, CA 94501

(510) 747-4750

Attorney for the City of

Alameda, California

SUSANA ALCALA WOOD

City Attorney

CITY OF SACRAMENTO

915 I Street, Fourth Floor

Sacramento, CA 95814

Attorney for City of

Sacramento, California

ANTHONY P. CONDOTTI

City Attorney

ATCHINSON, BARISONE &

CONDOTTI

P.O. Box 481

Santa Cruz, CA 95061

(831) 423-8383

Attorney for City of

Santa Cruz, California

GEORGE S. CARDONA

Interim City Attorney

CITY OF SANTA MONICA

1685 Main Street

Santa Monica, CA 90401

(310) 458-8336

Attorney for the City of

Santa Monica, California

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.