UTAH v. EVANS


Syllabus

UTAH v. EVANS ( No. 01-714 )
182 F. Supp. 2d 1165, affirmed.

UTAH et al. <font i="1">v. EVANS, SECRETARY OF COMMERCE, et al.

appeal from the united states district court for the district of utah


No. 01–714. Argued March 27, 2002—Decided June 20, 2002

The Census Bureau derives most census information from forms it mails to a nationwide list of addresses. If no one replies to a particular form or the information supplied is confusing, contradictory, or incomplete, the Bureau follows up with visits by its field personnel. Occasionally, despite the visits, the Bureau may still have conflicting indications about, e.g ., whether a listed address is a housing unit, office building, or vacant lot, whether a residence is vacant or occupied, or the number of persons in a unit. The Bureau may then use a methodology called “imputation,” by which it infers that the address or unit about which it is uncertain has the same population characteristics as those of its geographically closest neighbor of the same type ( i.e ., apartment or single-family dwelling) that did not return a form. In the year 2000 census, the Bureau used “hot-deck imputation” to increase the total population count by about 0.4%. But because this small percentage was spread unevenly across the country, it made a difference in the apportionment of congressional Representatives. In particular, imputation increased North Carolina’s population by 0.4% while increasing Utah’s by only 0.2%, so that North Carolina will receive one more Representative and Utah one less than if the Bureau had simply filled relevant informational gaps by counting the related number of individuals as zero. Utah brought this suit against respondents, the officials charged with conducting the census, claiming that the Bureau’s use of “hot-deck imputation” violates 13 U. S. C. §195, which prohibits use of “the statistical method known as ‘sampling,’ ” and is inconsistent with the Constitution’s statement that an “actual Enumeration be made,” U. S. Const., Art. I, §2, cl. 3. Utah sought an injunction compelling respondents to change the official census results. North Carolina intervened. The District Court found for the Bureau.

Held:

1. The Court rejects North Carolina’s argument that Utah lacks standing because this action is not a “Case” or “Controversy,” Art. III, §2, in that the federal courts do not have the power to “redress” the “injury” that respondents allegedly “caused” Utah, e.g., Lujan v. Defenders of Wildlife , 504 U. S. 555. Because there is no significant difference between Utah and the plaintiff in Franklin v. Massachusetts , 505 U. S. 788, in which the Court rejected a similar standing argument, North Carolina must convince the Court that it should reconsider Franklin. It has not done so. It argues that ordering respondents to recalculate the census numbers and recertify the official result cannot help Utah because North Carolina is “entitled” to the number of Representatives already certified to it under the statutes that require a decennial census, 13 U. S. C. §141(a); mandate that the results be reported to the President, 141(b); obligate the President to send Congress a statement showing the number of Representatives to which each State is “entitled” by the census data, 2 U. S. C. §2a(a); and specify that the House must then send each State a certificate of the number of Representatives to which it is “entitled.” The statutes also say that once all that is done, each State “shall be entitled” to the number of Representatives the “certificate” specifies. §2a(b). Unlike North Carolina, the Court does not read these statutes as absolutely barring a certificate’s revision in all cases. The statutes do not expressly address what is to occur in the case of a serious mistake—say, a clerical, mathematical, or calculation error in census data or in its transposition. Guided by Franklin, which found standing despite §2a’s presence, the Court reads the statute as permitting certificate revision in such cases of error, including cases of court-determined legal error leading to a court-required revision of the underlying census report. So read, the statute poses no legal bar to “redress.” Nor does Pub. L. 105–119, Title II, §209(b), 111Stat. 2481, which entitles “[a]ny person aggrieved by the use of any [unlawful] statistical method” to bring “a civil action” for declaratory or injunctive “relief against the use of such method.” Despite North Carolina’s argument that this statue implicitly forbids a suit after the census’ conclusion, the statute does not say that and does not explain why Congress would wish to deprive of its day in court a State that did not learn of a counting method’s representational consequences until after the census’ completion—and hence had little, if any, incentive to bring a precensus action. The Court reads limitations on its jurisdiction narrowly, see, e.g., Webster v. Doe, 486 U. S. 592, and will not read into a statute an unexpressed congressional intent to bar jurisdiction the Court has previously exercised, e.g., Franklin , supra. Because neither statute poses an absolute legal barrier to relief, it is likely that Utah’s victory here would bring about the ultimate relief it seeks. See id., at 803. Thus, Utah has standing. Pp. 4–9.

2. The Bureau’s use of “hot-deck imputation” does not violate 13 U. S. C. §195, which “authorize[s] the use of the statistical method known as ‘sampling,’ ” “[e]xcept for the determination of population for purposes of apportionment of Representatives.” Bureau imputation in the year 2000 census differs from sampling in several critical respects: (1) As to the nature of the enterprise, sampling seeks to extrapolate the features of a large population from a small one, but the Bureau’s imputation process sought simply to fill in missing data as part of an effort to count individuals one by one. (2) As to methodology, sampling seeks to find a subset that will resemble a whole through the use of artificial, random selection processes, whereas the Bureau’s methodology was not that typically used by statisticians, but that used to assure that an individual unit (not a “subset”), chosen nonrandomly, will resemble other individuals (not a “whole”) selected by the fortuitous unavailability of data. (3) As to the immediate objective, sampling seeks to extrapolate the sample’s relevant population characteristics to the whole population, while the Bureau seeks simply to determine the characteristics of missing individual data. These differences, whether of degree or of kind, are important enough to place imputation outside the scope of §195’s phrase “the statistical method known as ‘sampling.’ ” That phrase—using the words “known as” and the quotation marks around “sampling”—suggests a term of art with a technical meaning. And the technical literature, which the Court has examined, see Corning Glass Works v. Brennan, 417 U. S. 188, contains definitions that focus upon the sorts of differences discussed above. Also, insofar as the parties rely on statisticians’ expert opinion, that opinion uniformly favors the Government. Further, §195’s legislative history suggests that the “sampling” to which the statute refers is the practice that the Secretary called “sampling” in 1958 when Congress wrote that law, and that the statutory word does not apply to imputation, which Congress did not consider. Finally, Utah provides no satisfactory alternative account of the meaning of the phrase “the statistical method known as ‘sampling.’ ” Its several arguments—that “sampling” occurs whenever information on a portion of the population is used to infer information about the whole population; that the Court found that two methods, allegedly virtually identical to imputation, constituted “sampling” in Department of Commerce v. United States House of Representatives, 525 U. S. 316; that the Bureau, if authorized to engage in imputation, might engage in wide-scale substitution of imputation for person-by-person counting; and that two of the Bureau’s imputation methods are inaccurate—are not convincing. Utah has failed to overcome the fact that the Bureau has long and consistently interpreted §195 as permitting imputation, while Congress, aware of this interpretation, has enacted related legislation without changing the statute. Pp. 9–18.

3. The Bureau’s use of “hot-deck imputation” does not violate the Census Clause, which requires the “actual Enumeration” of each State’s population “within three Years after the first Meeting of the Congress … , in such Manner as they shall by Law direct.” Utah argues that the words “actual Enumeration” require the Census Bureau to seek out each individual and prohibit it from relying on imputation, but the Constitution’s text does not make the distinction that Utah seeks to draw. Rather, it uses a general word, “enumeration,” that refers to a counting process without describing the count’s methodological details. The textual word “actual” refers in context to the enumeration that would be used for apportioning the Third Congress, succinctly clarifying the fact that the constitutionally described basis for apportionment would not apply to the First and Second Congresses. The final part of the sentence says that the “actual Enumeration” shall take place “in such Manner as” Congress itself “shall by Law direct,” thereby suggesting the breadth of congressional methodological authority, rather than its limitation. See, e.g ., Wisconsin v. City of New York, 517 U. S. 1. This understanding of the text is supported by the history of the Constitutional Convention of 1787, which demonstrates that “actual Enumeration” does not limit census methodology as Utah proposes, but was intended to distinguish the census from the apportionment process for the First Congress, which was based on conjecture rather than a deliberately taken count. Further support is added by contemporaneous general usage, as exemplified by late-18th-century dictionaries defining “enumeration” simply as an act of numbering or counting over, without reference to counting methodology, and by contemporaneous legal documents, in which “enumeration” does not require contact between a census taker and each enumerated individual, but is used almost interchangeably with the phrase “cause the number of the inhabitants … to be taken.” Indeed, the Bureau’s imputation method is similar in principle to other efforts used since 1800 to determine the number of missing persons, including asking heads of households, neighbors, landlords, postal workers, or other proxies about the number of inhabitants in a particular place. Nor can Utah draw support from the Census Clause’s basic purposes: to use population rather than wealth to determine representation, to tie taxes and representation together, to insist upon periodic recounts of the population, and to take from the States the power to determine the manner of conducting the census. Those matters of general principle do not directly help determine the issue of detailed methodology before the Court. Nonetheless, certain basic constitutional choices may prove relevant. The decisions, for example, to use population rather than wealth, to tie taxes and representation together, to insist upon periodic recounts, and to take from the States the power to determine methodology all suggest a strong constitutional interest in accuracy. And an interest in accuracy here favors the Bureau, which uses imputation as a last resort after other methods have failed. The Court need not decide here the precise methodological limits foreseen by the Census Clause. It need say only that in this instance, where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely, those limits are not exceeded. Pp. 18–24.

182 F. Supp. 2d 1165, affirmed.

Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J. and Stevens, Souter, and Ginsburg, JJ., joined, and in which O’Connor, J., joined as to Parts I and II. O’Connor, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Kennedy, J., joined. Scalia, J., filed a dissenting opinion.


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).


TOP

Dissent

UTAH, et al. , APPELLANTS v. DONALD L. EVANS,
SECRETARY OF COMMERCE, et al.

on appeal from the united states district court for the district of utah


[June 20, 2002]

Justice Scalia , dissenting.

For the reasons I set forth in my opinion in Franklin v. Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in part and concurring in judgment)—and for an additional one brought forth in the briefing and argument of the present case—I disagree with the Court’s holding that appellants have standing under Article III of the Constitution to bring this suit.

As the Court acknowledges, in order to establish standing, appellants must show that the federal courts “have the power to redress the injury that the [federal appellees] allegedly caused [them].” Ante , at 4 (internal quotation marks omitted). Yet the Court does not dispute that, even if appellants were to succeed in their challenge and a court were to order the Secretary of Commerce to recalculate the final census, their injury would not be redressed “unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress … .” Franklin , supra , at 824. That fact is fatal to appellants’ standing because appellants have not sued the President to force him to take these steps—and could not successfully do so even if they tried, since “no court has authority to direct the President to take an official act,” 505 U. S., at 826. As the Court acknowledged in Franklin , the President enjoys the discretion to refuse to issue a new reapportionment statement to Congress: “[H]e is not … required to adhere to the policy decisions reflected in the Secretary’s report.” Id., at 799; see also id ., at 800. It displays gross disrespect to the President to assume that he will obediently follow the advice of his subordinates—in this case, a new report by his Secretary, recommending that he alter his prior determination. Id ., at 824–825 ( Scalia , J., concurring in part and concurring in judgment). Thus, because appellants’ “standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal quotation marks omitted), standing in this case does not exist.

The case for appellants’ standing is even weaker than I described it in Franklin . Redress of their alleged injuries depends not only on a particular exercise of the President’s discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.

Section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46Stat. 26, 2 U. S. C. §2a(a), “[e]ach State shall be entitled, … until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement,” §2a(b). Thus, the law provides only two means by which Utah’s entitlement can be altered: “the taking effect of a reapportionment under this section or subsequent statute.” Ibid. The first means refers to the next decennial census 1 ; the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.

The Court no doubt realizes that it is not even conceivable that appellants could have standing if redress of their injuries hinged on action by Congress; accordingly, it is driven to assert that the law does not mean what it says. The statute, the Court argues, “do[es] not expressly say” what is to occur when the numbers the Secretary reported to the President are flawed; accordingly, because it “makes good sense” to do so, the Court reads into the statute a third means by which the reapportionment can be altered: judicially decreed “mechanical revision” of “a clerical, a mathematical, or a calculation error” in the Secretary’s report. Ante , at 6, 7. This is an astonishing exercise of raw judicial power. The statute says very clearly what is to occur when anything (including a clerical, mathematical, or calculation error in the Secretary’s report) renders the completed apportionment worthy of revision: nothing at all, unless Congress deems it worthy of revision and enacts a new law making or authorizing the revision that Congress thinks appropriate. There was no reason for the statute to list “expressly” the infinite number of circumstances in which the reapportionment could not be altered by other means, because it expressly said that the States’ “entitle[ment]” to the number of Representatives shown in the presidential statement could be altered only by the two prescribed means . There is simply no other way to read the governing text: that the States “shall be entitled” to the reapportionment set forth in the President’s statement “until” one of two events occurs, undeniably means that unless one of those two events occurs, the States remain “entitled” to the reapportionment. What a wild principle of interpretation the Court today embraces: When a statute says that an act can be done only by means x or y , it can also be done by other means that “make good sense” under the circumstances, unless all the circumstances in which it cannot be done have been listed.

I would not subscribe to application of this deformed new canon of construction even if there were something about “clerical error” that made it uniquely insusceptible of correction by the means set forth in the statute. But there is not. Indeed, what more plausible and predictable occasion for congressional revision could there be than the demonstration of an error in the reported census count? By taking the responsibility for determining and remedying that error away from Congress, where the statute has placed it, and grasping it with its own hands, the Court commits a flagrant violation of the separation of powers.

The Court can find no excuse in our precedents for today’s holding. It relies on three of our cases in which it says we “found standing in similar circumstances,” ante , at 8–9. They are similar as day and night are similar. Two of them, Federal Election Comm’n v. Akins, 524 U. S. 11 (1998) , and Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991) , are inapposite because redress of the plaintiffs’ injuries did not require action by an independent third party that was not (and could not be) brought to answer before a federal court, much less by a third party for whom (as for the President) it would be disrespectful for us to presume a course of action, and much, much less in violation of the explicit text of a statute. 2 Although in the third case, Bennett v. Spear, 520 U. S. 154 (1997) , we found standing to challenge the action of one agency (Fish and Wildlife Service) despite the fact that redress ultimately depended upon action by another agency (Bureau of Reclamation) not before the Court, we made it quite clear that we came to this conclusion only because in the matter at issue the one agency had the power to coerce action by the other: “[I]t does not suffice,” we said, “if the injury complained of is the result of the independent action of some third party not before the court.” Id., at 169 (internal quotation marks omitted). We found that, “while the [Service] theoretically serves an advisory function, in reality it has a powerful coercive effect on the action agency.” Ibid. (internal quotation marks and citation omitted). In this case, by contrast, we simply cannot say—both because it is not true and because it displays gross disrespect to do so—that the action of the President is “coerced” by the Secretary. Not to mention, once again, the statute that explicitly leaves this question to Congress.

For these reasons, I would vacate the judgment of the District Court and remand with instructions to dismiss for want of jurisdiction.


Notes

1 It cannot be deemed to refer to reapportionment under the new presidential statement that appellants seek, because “reapportionment under this section” pursuant to the 2000 census has already occurred. The presidential statement effecting “reapportionment under this section” must be transmitted “[o]n the first day, or within one week thereafter, of the first regular session” of the first Congress after the census, §2a(a)—a deadline met by the President’s statement under challenge here, but now long since passed.

2 Moreover, in Metropolitan Washington there was no doubt that, if a court enjoined the challenged action, the injuries it allegedly caused would be redressed automatically by operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App. §2456(h)).