Justice O'Connor delivered the opinion of the Court, except as to Part III.
As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants' allocation of 922,819 overseas military personnel to the State
Article I, § 2, cl. 3, of the Constitution provides that Representatives "shall be apportioned among the several States. . . according to their respective Numbers," which requires, by virtue of § 2 of the Fourteenth Amendment, "counting the whole number of persons in each State." The number of persons in each State is to be calculated by "actual Enumeration," conducted every 10 years, "in such Manner as [Congress] shall by Law direct." U. S. Const., Art. I, § 2, cl. 3.
The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 571, 578-588 (rev. ed. 1966). Their effort was only partially successful, as the congressional battles over the method for calculating the reapportionment still caused delays. After just such a 10-year stalemate after the 1920 census, Congress reformed the reapportionment process
Under the automatic reapportionment statute, the Secretary of Commerce takes the census "in such form and content as [s]he may determine." 13 U. S. C. § 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See §§ 2, 4. "The tabulation of total population by States . . . as required for the apportionment of Representatives in Congress . . . shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States." § 141(b). After receiving the Secretary's report, the President "shall transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions . . . ." 2 U. S. C. § 2a(a). "Each State shall be entitled . . . to the number of Representatives shown" in the President's statement, and the Clerk of the House of Representatives must "send to the executive of each State a certificate of the number of Representatives to which such State is entitled." § 2a(b).
With the one-time exception in 1900 of counting overseas servicemen at their family home, the Census Bureau did not allocate federal personnel stationed overseas to particular
Initially, the Bureau took the position that overseas federal employees would not be included in the 1990 state enumerations either. There were, however, stirrings in Congress in favor of including overseas federal employees, especially overseas military, in the state population counts. Several bills requiring the Secretary to include overseas military were introduced but not passed in the 100th and 101st Congresses. See H. R. 3814, 100th Cong., 1st Sess. (1987); H. R. 4234, 100th Cong., 2d Sess. (1988); H. R. 3815, 100th Cong., 1st Sess. (1987); H. R. 4720, 100th Cong., 2d Sess. (1988); S. 2103, 100th Cong., 2d Sess. (1988); H. R. 1468, 101st Cong., 1st Sess. (1989); H. R. 2661, 101st Cong., 1st Sess. (1989); H. R. 3016, 101st Cong., 1st Sess. (1989); S. 290, 101st Cong., 1st Sess. (1989). In July 1989, nine months before the census taking was to begin, then-Secretary of Commerce Robert Mosbacher agreed to allocate overseas federal employees to their home States for purposes of congressional apportionment. App. 182. His decision memorandum cites both the growing congressional support for including overseas employees and the Department of Defense's belief that "its employees should not be excluded from apportionment counts because of temporary and involuntary residence overseas." Id., at 120. Another factor explaining the Secretary's
In the meantime, two more bills were introduced in Congress, but not passed, which would have required the Census Bureau to apportion members of the overseas military to their home States using the "home of record" data already in their personnel files. See H. R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong., 2d Sess. (1990). In July 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense's overseas employees to the States based on their "home of record." App. 185. It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau's standard measure of state affiliation—"usual residence." 3 Record 925. Legal residence was thought less accurate because the choice of legal residence may have been affected by state taxation. Indeed, the Congressional Research Service found that in 1990 "the nine States with either no income taxes, or those which tax only interest and dividend income, have approximately 9 percent more of the overseas military personnel claiming the States for tax purposes, than those same States receive using home of record. " Congressional
The Census Bureau invited 40 other federal agencies with overseas employees to submit counts of their employees as well. Of those, only 30 actually submitted counts, and only 20 agencies included dependents in their enumeration. Four of the agencies could not provide a home State for all of their overseas employees. Ibid.
Appellees challenged the decision to allocate federal overseas employees, and the method used to do so, as inconsistent with the APA and with the constitutional requirement that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State." U. S. Const., Art. I,§ 2, cl. 3; U. S. Const., Amdt. 14, § 2. Appellees focused their attack on the Secretary's decision to use "home of record" data for military personnel. The District Court, finding that it had jurisdiction to address the merits of the claims, was "skeptical" of the merits of appellees' constitutional claims, speculating that "[t]here would appear to be nothing inherently unconstitutional in a properly supported decision to include overseas federal employees in apportionment counts." Commonwealth v. Mosbacher, 785 F.Supp. 230, 266 (Mass. 1992). The District Court nonetheless held that, on the administrative record before it, the Secretary's decision to allocate the employees and to use home
Appellees raise claims under both the APA and the Constitution. We address first the statutory basis for our jurisdiction under the APA. See Blum v. Bacon, 457 U.S. 132, 137 (1982); Burton v. United States, 196 U.S. 283, 295 (1905).
The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. The Secretary's report to the President is an unusual candidate for "agency action" within the meaning of the APA, because it is not promulgated to the public in the Federal Register, no official administrative record is generated, and its effect on reapportionment is felt only after the President makes the necessary calculations and reports the result to the Congress. Contrast 2 U. S. C. § 441a(e) (requiring Secretary to publish each year in the Federal Register an estimate of the voting age population). Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives. See § 2a(b) ("Each State shall be entitled . . . to the number of Representatives shown in the [President's] statement").
The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U. S. C. § 704. At issue in this case is whether the "final" action that appellees have challenged is that of an "agency" such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.
To determine when an agency action is final, we have looked to, among other things, whether its impact "is sufficiently
Unlike other statutes that expressly require the President to transmit an agency's report directly to Congress, § 2a does not. Compare, e. g., 20 U. S. C. § 1017(d) ("The President shall transmit each such report [of the National Advisory Council on Continuing Education] to the Congress with his comments and recommendations"); 30 U. S. C. § 1315(c) (similar language); 42 U. S. C. § 3015(f) (similar language); 42 U. S. C. § 6633(b)(2) (similar language). After receiving the Secretary's report, the President is to "transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population." 2 U. S. C. § 2a(a). Section 2a does not expressly require the President to use the data in the Secretary's report, but, rather, the data from the "decennial census." There is no statute forbidding amendment of the "decennial census" itself after the Secretary submits the report to the President. For potential litigants, therefore, the "decennial census" still presents a moving target, even after the Secretary reports to the President. In this case, the Department of Commerce, in its press release issued the day the Secretary submitted the report to the President, was explicit that the data presented to the President was still subject to correction. See United States Department of Commerce News, Bureau of Census, 1990 Census Population for the United States is 249,632,692: Reapportionment Will
The statutory structure in this case differs from that at issue in Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221 (1986), in which we held that the Secretary of Commerce's certification to the President that another country was endangering fisheries was "final agency action." Id., at 231, n.4. In that case, the Secretary's certification
Appellees claim that because the President exercises no discretion in calculating the numbers of Representatives, his "role in the statutory scheme was intended to have no substantive content," and the final action is the Secretary's, not the President's. Brief for Appellees 86. They cite the Senate Report for the bill that became 2 U. S. C. § 2a, which states that the President is to report "upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer." S. Rep. No. 2, 71st Cong., 1st Sess., at 4-5.
The admittedly ministerial nature of the apportionment calculation itself does not answer the question whether the apportionment is foreordained by the time the Secretary gives her report to the President. To reiterate, § 2a does not curtail the President's authority to direct the Secretary in making policy judgments that result in "the decennial census"; he is not expressly required to adhere to the policy decisions reflected in the Secretary's report. Because it is the President's personal transmittal of the report to Congress that settles the apportionment, until he acts there is no determinate agency action to challenge. The President, not the Secretary, takes the final action that affects the States.
Indeed, it is clear that Congress thought it was important to involve a constitutional officer in the apportionment process. Congress originally considered a bill requiring the Secretary to report the apportionment calculation directly
As enacted, 2 U. S. C. § 2a provides that the Secretary cannot act alone; she must send her results to the President, who makes the calculations and sends the final apportionment to Congress. That the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial. Thus, we can only review the APA claims here if the President, not the Secretary of Commerce, is an "agency" within the meaning of the Act.
The APA defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia." 5 U. S. C. §§ 701(b)(1), 551(1). The President is not explicitly excluded from the APA's purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President
Although the reapportionment determination is not subject to review under the standards of the APA, that does not dispose of appellees' constitutional claims. See Webster v. Doe, 486 U.S. 592, 603-605 (1988). Constitutional challenges to apportionment are justiciable. See Department of Commerce v. Montana, 503 U.S. 442 (1992).
We first address standing.
The thornier standing question is whether the injury is redressable by the relief sought. Tracking the statutory progress of the census data from the Census Bureau, through the President, and to the States, the District Court entered an injunction against the Secretary of Commerce, the President, and the Clerk of the House. 785 F. Supp., at 268. While injunctive relief against executive officials like the Secretary of Commerce is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, supra, the District Court's grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, Mississippi v. Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon, 418 U.S. 683 (1974), but in general "this
For purposes of establishing standing, however, we need not decide whether injunctive relief against the President was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75, n. 20 (1978); Allen v. Wright, supra, at 752. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.
On the merits, appellees argue that the Secretary's allocation of overseas federal employees to the States violated the command of Article I, § 2, cl. 3, that the number of Representatives per State be determined by an "actual Enumeration" of "their respective Numbers," that is, a count of the persons "in" each State. Appellees point out that the first census conducted in 1790 required that persons be allocated to their place of "usual residence." Brief for Appellees 77. See Act of Mar. 1, 1790, § 5, 1 Stat. 103. Because the interpretations of the Constitution by the First Congress are persuasive,
The appellants respond, on the other hand, that the allocation of employees temporarily stationed overseas to their home States is fully compatible with the standard of "usual residence" used in the early censuses. We review the dispute to the extent of determining whether the Secretary's interpretation is consistent with the constitutional language and the constitutional goal of equal representation. See Department of Commerce v. Montana, 503 U. S., at 459.
"Usual residence" was the gloss given the constitutional phrase "in each State" by the first enumeration Act and has been used by the Census Bureau ever since to allocate persons to their home States. App. 173-174. The term can mean more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place. The first enumeration Act itself provided that "every person occasionally absent at the time of the enumeration [shall be counted] as belonging to that place in which he usually resides in the United States." Act of Mar. 1, 1790, § 5, 1 Stat. 103. The Act placed no limit on the duration of the absence, which, considering the modes of transportation available at the time, may have been quite lengthy. For example, during the 36-week enumeration period of the 1790 census, President George Washington spent 16 weeks traveling through the States, 15 weeks at the seat of Government, and only 10 weeks at his home in Mount Vernon. He was, however, counted as a resident of Virginia. T. Clemence, Place of Abode, reproduced in App. 83.
The first enumeration Act uses other words as well to describe the required tie to the State: "usual place of abode," "inhabitant," "usual reside[nt]." Act of Mar. 1, 1790, § 5, 1 Stat. 103. The first draft of Article I, § 2, also used the word "inhabitant," which was omitted by the Committee of Style
In the related context of congressional residence qualifications, U. S. Const., Art. I, § 2, James Madison interpreted the constitutional term "inhabitant" to include "persons absent occasionally for a considerable time on public or private business." 2 Farrand, Records of the Federal Convention of 1787, at 217. This understanding was applied in 1824, when a question was raised about the residency qualifications of would-be Representative John Forsyth, of Georgia. Mr. Forsyth had been living in Spain during his election, serving as minister plenipotentiary from the United States. His qualification for office was challenged on the ground that he was not "an inhabitant of the State in which he [was] chosen." U. S. Const., Art. I, § 2, cl. 2. The House Committee of Elections disagreed, reporting: "There is nothing in Mr. Forsyth's case which disqualifies him from holding a seat in this House. The capacity in which he acted, excludes the idea that, by the performance of his duty abroad, he ceased to be an inhabitant of the United States; and, if so, inasmuch as he had no inhabitancy in any other part of the Union than Georgia, he must be considered as in the same situation as before the acceptance of the appointment." M. Clarke & D. Hall, Cases of Contested Elections in Congress 497-498 (1834). Representative Bailey, supporting the qualification of Mr. Forsyth, pointed out that if "the mere living in a place constituted inhabitancy," it would "exclude sitting members of this House." Id., at 497 (emphasis deleted).
Up to the present day, "usual residence" has continued to hold broad connotations. For example, up until 1950, college
In this case, the Secretary of Commerce made a judgment, consonant with, though not dictated by, the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States' representation in Congress: "Many, if not most, of these military overseas consider themselves to be usual residents of the United States, even though they are temporarily assigned overseas." Id., at 120. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually promotes equality. If some persons sharing in Washington's fate had not been properly counted, the votes of all those who reside in Washington State would not have been weighted equally to votes of those who reside in other States. Certainly, appellees have not demonstrated that eliminating overseas employees entirely from the state counts will make representation in Congress more equal. Cf. Karcher v. Daggett, 462 U.S. 725, 730-731 (1983) (parties challenging state apportionment legislation bear burden of proving disparate representation). We conclude that appellees' constitutional challenge fails on the merits.
The District Court's judgment is
In my opinion the census report prepared by the Secretary of Commerce is "final agency action" subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. I am persuaded, however, that the Secretary complied with the Census Act and with the Constitution in the preparation of the 1990 census and that, under the standard of deference appropriate here, the Secretary's actions were not arbitrary or capricious. I therefore agree that the judgment of the District Court must be reversed.
During the decade after 1980 the population of Massachusetts increased less rapidly than the population of the entire Nation. In the apportionment following the 1990 census, it received only 10 of the 435 seats in the House of Representatives whereas formerly it had 11.
In the District Court, appellees, who are the Commonwealth of Massachusetts and two of its registered voters, made two separate attacks on the process that reduced the size of Massachusetts' congressional delegation. They challenged the Secretary's conduct of the census, and they challenged the method of apportioning congressional seats based on the census report. The District Court rejected the challenge to the constitutionality of the method of apportionment prescribed in the Apportionment Act of 1941, 55 Stat. 761-762. Commonwealth v. Mosbacher, 785 F.Supp. 230, 256 (Mass. 1992). That decision was consistent with the analysis subsequently set forth in our opinion in Department of Commerce v. Montana, 503 U.S. 442 (1992), and is no longer in dispute. Pursuant to the judicial review provisions of the APA, 5 U. S. C. § 706(2), the District Court also examined the decision of the Secretary of Commerce to include overseas federal employees in the census count. The
In a rather surprising development, this Court reverses because it concludes that the census report is not "final agency action," 5 U. S. C. § 704. The reason the Court gives for this conclusion is that the President—who is not himself a part of the agency that prepared the census and who has no statutory responsibilities under the Census Act—might revise that report in some way when he is performing his responsibilities under an entirely separate statute, the Apportionment Act. The logic of the Court's opinion escapes me, and apparently was not obvious to the Solicitor General, for he advanced no such novel claim in his argument seeking reversal. The Court's conclusion is erroneous for several reasons.
Article I, § 2, cl. 3, of the Constitution, as modified by the Fourteenth Amendment, provides that Members of the House of Representatives "shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . ." To ensure that the apportionment remains representative of the current population, the Constitution further requires that a census be taken at least every 10 years.
Beginning in 1790, Congress fulfilled the constitutional command by passing a Census Act every 10 years. Under the early census statutes, marshals would transmit the collected information to the Secretary of State. The census functions of the Secretary of State were transferred to the Secretary of the Interior after that Department was established
Following each census, Congress enacted a statute to reapportion the House of Representatives. After the 1920 census, however, Congress failed to pass a reapportionment Act. This congressional deadlock provided the impetus for the 1929 Act that established a self-executing apportionment in the case of congressional inaction. See S. Rep. No. 2, 71st Cong., 1st Sess., 2-4 (1929). The bill produced an automatic reapportionment through the application of a mathematical formula to the census. The automatic connection between the census and the reapportionment was the key innovation of the Act.
In its original version, the bill directed the Secretary of Commerce to apply a mathematical formula to the census figures and to transmit the resulting apportionment calculations to Congress. A later version made the President responsible for performing the mathematical computations and reporting the result. From the legislative history, it is clear that this change in the designated official was intended to have no substantive significance.
The statutory scheme creates an interlocking set of responsibilities for the Secretary and the President. The Secretary of Commerce is required to take a "decennial census of population as of the first day of April of [every tenth] year, which date shall be known as the `decennial census date.'" 13 U. S. C. § 141(a). The Secretary reports the collected information to the President, see § 141(b), who is directed to "transmit to the Congress" a statement showing the population of each State "as ascertained under the seventeenth and each subsequent decennial census . . .." 2 U. S. C. § 2a(a). The plain language of the statute demonstrates that the President has no substantive role in the computation of the census. The Secretary takes the "decennial census," and the President performs the apportionment calculations and transmits the census figures and apportionment results to Congress.
In the face of this clear statutory mandate, the Court must fall back on an argument based on statutory silence. The Court insists that there is no law prohibiting the President from changing the census figures after he receives them from the Secretary. The Court asserts: "Section 2a does not expressly require the President to use the data in the Secretary's report, but, rather, the data from the `decennial census. ` " Ante, at 797 (emphasis added). This statement is difficult to comprehend, for it purports to contrast two terms that the statute equates. The "decennial census" is the name the statute gives to the information collected by the
The legislative record, moreover, establishes that the Executive involvement in the process is to be wholly ministerial.
. . . . .
No President—indeed, no member of the Executive Branch—has ever suggested that the statute authorizes the President to modify the census figures when he performs the
This wide distribution provides further evidence that the statute does not contemplate the President's changing the Secretary's report. If the President modified the census figures after he received them from the Secretary, the Federal Government and the States would rely on different census results. The Secretary has made clear that the existence of varying "official" population figures is not acceptable.
To ensure uniformity, the Secretary's count must establish the final census figures.
In view of my conclusion that the census report prepared by the Secretary constitutes final agency action, I must consider the Secretary's contention that judicial review is not available because the conduct of the census is "committed to agency discretion by law." 5 U. S. C. § 701(a)(2).
As we have frequently recognized, the "strong presumption that Congress intends judicial review of administrative action," see, e. g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), cannot be overcome without "`clear and convincing evidence'" of a contrary legislative intent, Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967) (quoting Rusk v. Cort, 369 U.S. 367, 380 (1962)). No such evidence appears here.
The current version of the statute provides that "[t]he Secretary shall . . . take a decennial census of population as of the first day of April . . . in such form and content as [s]he may determine . . . ." 13 U. S. C. § 141(a).
No language equivalent to "deem . . . advisable" exists in the census statute. There is no indication that Congress intended the Secretary's own mental processes, rather than other more objective factors, to provide the standard for gauging the Secretary's exercise of discretion. Moreover, it
More generally, the Court has limited the exception to judicial review provided by 5 U. S. C. § 701(a)(2) to cases involving national security, such as Webster v. Doe and Department of Navy v. Egan, or those seeking review of refusal to pursue enforcement actions, see Heckler v. Chaney, 470 U.S. 821
Nor is this an instance in which the statute is so broadly drawn that "`there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). The District Court found that the overall statutory scheme and the Census Bureau's consistently followed policy provided "law to apply" in reviewing the Secretary's exercise of discretion. 785 F. Supp., at 262. As the District Court explained, the relationship of the census provision contained in 13 U. S. C. § 141 and the apportionment provision contained in 2 U. S. C. § 2a demonstrates that the Secretary's discretion is constrained by the requirement that she produce a tabulation of the "whole number of persons in each State." 2 U. S. C. § 2a(a).
For the reasons stated in Part IV of the Court's opinion, I agree that the inclusion of overseas employees in state census totals does not violate the Constitution.
With the exception of the census conducted in 1900, overseas federal employees were not included in state census totals before 1970.
In July 1989, then-Secretary Mosbacher decided to include overseas employees in state population figures in the 1990
In reaching the ultimate decision to allocate overseas federal employees to States, the Secretary had an obligation to "examine the relevant data and articulate a satisfactory explanation for [the] action including a `rational connection between the facts found and the choice made.'" State Farm, 463 U. S., at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The District Court was properly concerned by the scant evidence that the Secretary reconsidered the apportionment policy following the cancellation of the Defense Department survey. If the justification for the decision no longer obtained, the refusal to reconsider would be quite capricious. The District Court was certainly correct in concluding that "[i]nertia cannot supply the necessary rationality" for the Secretary's decision. 785 F. Supp., at 265.
While the question is a close one, two factors in particular lead me to conclude that the decision to include overseas employees ultimately rested on more than inertia. First, the Secretary received assurances from the Defense Department
The record could be more robust. However, the basis for the agency's decision need not appear with "ideal clarity," Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286 (1974), as long as it is reasonably discernible. As the Court explains, see ante, Part IV, the Secretary had discretion to include overseas personnel in the census count. Although the hopes for more accurate data were not fully realized, the record discloses that the decision to include overseas personnel continued to be supported by valid considerations. I therefore conclude that the decision of the Secretary was not arbitrary or capricious.
For these reasons, I concur in the Court's judgment, but only in Part IV of its opinion.
Justice Scalia, concurring in part and concurring in the judgment.
I agree with the Court that appellees had no cause of action under the judicial-review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and I therefore join Parts I and II of its opinion.
Appellees have also challenged the constitutionality of the allocation methods used by the Secretary of Commerce in conducting the census. The Court concludes that they have
The plurality concludes that declaratory relief directed at the Secretary alone would be sufficient to redress appellees' injury. Ante, at 803. I do not agree. Ordering the Secretary to recalculate the final census totals will not redress appellees' injury unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress, and the Clerk of the House then submits new certificates to the States. 13 U. S. C. § 141(b); 2 U. S. C. § 2a. I agree that, in light of the Clerk's purely ministerial role, we can properly assume that insofar as his participation is concerned the sequence of events will occur. But as the Court correctly notes, ante, at 797-800, the President's role in the reapportionment process is not purely ministerial; he is not "required to adhere to the policy decisions reflected in the Secretary's report," ante, at 799. I do not think that for purposes of the Article III redressability requirement we are ever entitled to assume, no matter how objectively reasonable the assumption may be, that the President (or, for that matter, any official of the Executive
The plurality, however, has a different theory of redressability. In its view, it suffices that the "authoritative interpretation of the census statute and constitutional provision" rendered by the District Court will induce the President to submit a new reapportionment that is consistent with what the District Court judgment orders the Secretary to submit. Ante, at 803. It seems to me this bootstrap argument eliminates, rather than resolves, the redressability question. If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. It is the Court's judgment, in other words, its injunction to the Secretary of Commerce, that must provide appellees relief—not its accompanying excursus on the meaning of the Constitution.
Though the Court does not rely upon it,the judgment sought here did run against the President of the United States. The District Court's order expressly required, not
We have long recognized that the scope of Presidential immunity from judicial process differs significantly from that of Cabinet or inferior officers. Compare Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) ("The President's unique status under the Constitution distinguishes him from other executive officials"), with Harlow v. Fitzgerald, 457 U.S. 800, 811, n. 17 (1982) ("Suits against other officials—including Presidential aides—generally do not invoke separation-of-powers considerations to the same extent as suits against the President himself"). Although we held in United States v. Nixon, 418 U.S. 683 (1974), that the President is not absolutely immune from judicial process, see also United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.) (upholding subpoena directed to President Jefferson), the order upheld there merely required the President to provide information relevant to an ongoing criminal prosecution, which is what any citizen might do; it did not require him to exercise the "executive Power" in a judicially prescribed fashion. We have similarly held that Members of Congress can be subpoenaed as witnesses, see Gravel v. United States, 408 U.S. 606, 615 (1972), citing United States v. Cooper, 4 Dall. 341 (CC Pa. 1800) (Chase, J., sitting on Circuit), though there is no doubt that we cannot direct them in the performance of their constitutionally prescribed duties, see Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) (refusing to enjoin the issuance of a congressional subpoena).
For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. Many of the reasons we gave in Nixon v. Fitzgerald, supra, for acknowledging an absolute Presidential immunity from civil damages for official acts apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity suits that challenge the President's performance of executive functions: The President's immunity from such judicial relief is
None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive, see, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)—just as unlawful legislative action
In sum, we cannot remedy appellees' asserted injury without ordering declaratory or injunctive relief against appellant President Bush, and since we have no power to do that, I believe appellees' constitutional claims should be dismissed.
Kenneth O. Eikenberry, Attorney General of Washington, James M. Johnson, Senior Assistant Attorney General, and J. Lawrence Coniff filed a brief for the State of Washington as amicus curiae.
"The objection that this is an improper `delegation of power' to the Department of Commerce (which takes the census) and to the President (who reports the arithmetic) is answered by an examination of the facts. No power whatever is delegated. The Department of Commerce counts the people (as it always has done) and the President reports upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer." S. Rep. No. 2, 71st Cong., 1st Sess., 4-5 (1929).
"The bill calls upon the President to report the result of a census to the Congress. We have always depended upon somebody to report the result of a census to us. The bill calls upon the President, when he reports the result of the census, also to report the result of a problem in arithmetic. If the President did not present the answer to that problem in arithmetic, somebody else would have to do the problem in arithmetic, because no matter what method is embraced for purposes of apportionment, there is inevitably needed a formula which, like a chemical formula, may in itself be somewhat inscrutable, and yet which always reaches the same conclusion." 71 Cong. Rec. 1613 (1929). The accuracy of Senator Vandenberg's statements is confirmed by the analysis set forth in our opinion in Department of Commerce v. Montana, 503 U. S., at 448-456.
"MR. ROBERTS: The law directs [the President] to apply, of course, a particular mathematical formula to the population figures he receives, but I don't think there is a limit on his exercise of authority to direct the Secretary of Commerce to conduct the census in a particular manner. It would be unlawful, maybe not subject to judicial review, but unlawful just to say, these are the figures, they are right, but I am going to submit a different statement. But he can certainly direct the Secretary in the conduct of the census.
"QUESTION: But would he have to remand it in effect to the Secretary or could he say, well, I have had somebody over at the FBI making some checks for me and they tell me there are really more people in Massachusetts, so I am going to give them extra seats.
"MR. ROBERTS: I think under the law he is supposed to base his calculation on the figures submitted by the Secretary." Tr. of Oral Arg. 12-13.
The possibility that the Secretary may modify the census figures, of course, cannot support the Court's view that the President's intervention deprives the Secretary's action of finality. The possibility of correction would mean, at most, that appellees' challenge was not ripe until the Secretary's eventual announcement that he would not adjust the census. See 56 Fed. Reg. 33582 (1991). Similarly, even if it were the President's report to Congress that signaled the end of a census-adjustment process, that would be relevant only in determining when a challenge is ripe, not whether the Secretary's report is "final agency action."
The Senate Report on the new language in 13 U. S. C. § 141(a) reads in its entirety:
"Subsection (a) of section 141 essentially rewords the existing subsection, adding the term `decennial census of population' so as to distinguish this census, to be taken in 1980 and every ten years thereafter, from the mid-decade census, which is to be taken in 1985 and every ten years thereafter. New language is added at the end of the subsection to encourage the use of sampling and surveys in the taking of the decennial census." S. Rep. No. 94-1256, at 4.
Indeed, other portions of the Act limited the Secretary's authority by requiring, if feasible, the use of sampling in the nonapportionment census. 90 Stat. 2464, 13 U. S. C. § 195.
The contention that overseas personnel may have little connection with their "home of record" clearly has some force. A person designates a "home of record" when entering the service and is not permitted to change it thereafter. See App. 147, n. 5. This information may therefore be quite stale, implicating the constitutional requirements of accuracy and decenniality.
The special problems of including overseas personnel in the census, though, necessitate difficult judgments about the best data to use. In view of the discretion available to the Secretary in formulating residence rules, the adoption of the "home of record" principle cannot be said to transgress any constitutional command. Accuracy in this context is clearly a comparative concept, and appellees have not demonstrated that the constitutional requirement of accuracy dictates a different method of determining residence.
Like the District Court, I also conclude that the Secretary's decision did not violate any specific provision of the Census Act. See 785 F. Supp., at 266, n. 31.