505 U.S. 788, 112 S. Ct. 2767 (1992)
Following the 1990 decennial census, Massachusetts lost one seat in the House of Representatives.1 The Commonwealth of Massachusetts and two of its registered voters sued the Secretary of Commerce, the President, Census Bureau officials, and the Clerk of the House of Representatives in the United States District Court for the District of Massachusetts.2 They challenged the allocation of 922,819 overseas military personnel to the states listed as their home of record in Defense Department files, an allocation that shifted one representative from Massachusetts to Washington.3
The Census Bureau first allocated overseas military personnel to home of record states during the 1970 census taken amid the Vietnam War.4 It excluded such personnel from the 1980 census after determining that home of record designations often reflected tax considerations rather than true state affiliation.5 In July 1989, Secretary Mosbacher decided to include overseas federal employees in the 1990 state counts, citing congressional interest and Defense Department views.6
In December 1989, however, the Defense Department canceled its plans to conduct the survey due to a lack of funds.7 As an alternative, the Defense Department suggested that it could provide data on its employees' last six months of residence in the United States, information that would be more complete and up-to-date than the home of record data already in the personnel files.8 This possibility also failed to materialize when the Defense Department informed the Census Bureau that it was not able to assemble the information after all.9
In July 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense's overseas employees to the States based on their "home of record."10 It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau's standard measure of state affiliation—"usual residence."11 Those military personnel for whom home of record information was not available were allocated based on legal residence or last duty station, in that order.12 Forty other federal agencies were invited to submit counts; thirty did so, twenty included dependents, and four could not provide home state information for all employees.13 Several bills requiring use of home of record data had been introduced in Congress but none passed.14
A three-judge district court panel found jurisdiction over the claims.15 It expressed skepticism about the constitutional challenges but held that the Secretary's decision to allocate overseas employees and to rely on home of record data was arbitrary and capricious under the Administrative Procedure Act.16 The court ordered the Secretary to remove overseas employees from the apportionment counts, directed the President to recalculate the number of representatives, and directed the Clerk of the House to notify the states of the change.17 The federal officials appealed.18 The Supreme Court noted probable jurisdiction, stayed the district court's order, and ordered expedited briefing and argument.19
Whether the Secretary of Commerce's report to the President constitutes final agency action subject to judicial review under the Administrative Procedure Act?20
No. The Secretary's report to the President does not constitute final agency action.23 The President must transmit to Congress a statement showing the whole number of persons in each State and the resulting apportionment of Representatives.24 Only that transmission creates an entitlement for the States under 2 U.S.C. § 2a(b).25 The statutory scheme leaves the decennial census data subject to possible correction after the Secretary submits the report.26
The President retains authority to direct the Secretary to reform the census before transmitting the statement.27 In this case the Department of Commerce press release issued the day the Secretary submitted the report explicitly stated that the population counts remained subject to possible correction for undercount and overcount.28
The Secretary of Commerce's report to the President does not constitute final agency action subject to judicial review under the Administrative Procedure Act.29
Related opinions on this issue
Joined by Blackmun, Kennedy, And Souter, Jj.
Justice Stevens concluded that the census report prepared by the Secretary constitutes final agency action subject to judicial review under the APA.30 The statute directs the Secretary to take the decennial census and report the collected information to the President.31 The President performs only the ministerial mathematical computations and lacks authority to modify the figures reported by the Secretary.32
The report is released to the public at the same time it is transmitted to the President.33 It is distributed to federal and state agencies for allocation of benefits and burdens among the States.34 This wide distribution demonstrates that the statute does not contemplate the President changing the Secretary's report.35
The legislative history confirms that the President's role was intended to be wholly ministerial with no substantive discretion to alter the census results.36
Whether the President is an agency within the meaning of the Administrative Procedure Act?37
The Administrative Procedure Act defines agency as each authority of the Government of the United States but expressly excludes Congress, the courts, the governments of the territories, and the government of the District of Columbia.38 Out of respect for separation of powers the President is not considered an agency absent an express statement by Congress.39
No. The President is not an agency within the meaning of the Administrative Procedure Act.4041 The statute's textual silence on the President, combined with the unique constitutional position of the office, requires an express statement by Congress before subjecting presidential performance of statutory duties to APA review for abuse of discretion.42 The Act's definition of agency does not explicitly include the President.43 The Court requires such an explicit statement before assuming Congress created a damages action or review mechanism against the President.44
The President is not an agency within the meaning of the Administrative Procedure Act.
Whether appellees have standing to challenge the Secretary's decision to allocate overseas federal employees to the states for apportionment purposes?45
To establish Article III standing a plaintiff must allege an injury fairly traceable to the defendant's unlawful conduct and likely to be redressed by the requested relief.46
Yes. Appellees have standing to challenge the Secretary's decision to allocate overseas federal employees.47 They demonstrated that Massachusetts would have received an additional Representative if overseas employees had not been allocated at all.48 The injury is traceable to the Secretary's allocation decision.49 The injury is redressable by declaratory relief against the Secretary alone.50 It is substantially likely that the President and other officials would abide by an authoritative judicial interpretation of the census statute and constitutional provision.51
Appellees have standing to challenge the Secretary's decision to allocate overseas federal employees to the states for apportionment purposes.52
Related opinions on this issue
Justice Scalia concluded that appellees lack standing on redressability grounds.53 Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive effect of its opinion.54 Ordering the Secretary to recalculate totals would not redress the injury unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress.55
The Court cannot assume the President will take that action when performing a non-ministerial function.56 Judicial inquiry into the probability of presidential subservience to a subordinate official is disrespectful of a coordinate branch.57 The District Court's order directing the President to issue a new certification was improper because no court has authority to direct the President to take an official act.58
Whether appellees have standing to challenge the accuracy of the data used in allocating overseas federal employees?59
To establish Article III standing a plaintiff must allege an injury fairly traceable to the defendant's unlawful conduct and likely to be redressed by the requested relief.
No. Appellees lack standing to challenge the accuracy of the data used in allocating overseas federal employees.60 They neither alleged nor showed that Massachusetts would have received an additional Representative if the allocation had been performed using some other source of more accurate data.61 They demonstrated injury from the decision to allocate at all, but that does not establish standing to challenge the particular data sources chosen.62
Appellees do not have standing to challenge the accuracy of the data used in allocating overseas federal employees.63
Whether the allocation of overseas federal employees to their home states using home of record data violates the constitutional requirement of an actual enumeration of persons in each state?64
Article I, Section 2, Clause 3 requires that Representatives be apportioned among the States according to their respective numbers determined by an actual enumeration of persons in each State.65 The first enumeration Act interpreted this requirement by allocating persons to their place of usual residence, a standard that has been applied broadly to include persons with an enduring tie to the State even when temporarily absent.66
No. The allocation of overseas federal employees to their home states using home of record data does not violate the constitutional requirement of an actual enumeration.67 Usual residence has long been understood to encompass more than mere physical presence and to include an element of allegiance or enduring tie.68 The first enumeration Act counted persons occasionally absent as belonging to their usual place of residence.69 Historical practice counted college students at their parents' home State and members of Congress at their chosen home State.70
The Secretary's judgment that many federal employees temporarily stationed overseas had retained their ties to the States is consonant with the text and history of the Constitution and promotes rather than hampers the goal of equal representation.71
The allocation of overseas federal employees to their home states using home of record data does not violate the constitutional requirement of an actual enumeration of persons in each state.72
Related opinions on this issue
Joined by Blackmun, Kennedy, And Souter, Jj.
Justice Stevens agreed that the inclusion of overseas employees in state census totals does not violate the Constitution.73 The special problems of including overseas personnel in the census necessitate difficult judgments about the best data to use.74 In view of the discretion available to the Secretary in formulating residence rules, the adoption of the home of record principle cannot be said to transgress any constitutional command.75
Accuracy in this context is a comparative concept.76 Appellees have not demonstrated that the constitutional requirement of accuracy dictates a different method of determining residence.77 The Secretary's decision rested on valid considerations even after the planned Defense Department survey was canceled.78