viewed from plaintiffs' perspective provides, factually, support for plaintiffs' claim of redressability.
The residual method set forth by Dr. Passel would require a modification of the census questionnaire to include a question on citizenship. In addition, this method would require that the INS conduct a special alien registration in late 1989 or early 1990. The number of legal aliens determined by the INS alien registration would then be subtracted from the number of residents in order to enumerate the number of illegal aliens. (Siegel Declaration at 13-14; Bouvier Declaration at 4; Passel Declaration at 8).
Dr. Passel, regarding all of the methods described by him, opined that "none of [the] methods can produce sufficiently accurate census counts for congressional apportionment." (Passel Declaration at 7-8). Specifically, with regard to the residual method, the method upon which plaintiffs rely, Dr. Passel concluded that such a method would be inappropriate for use in identifying illegal aliens so as to exclude them from the census figures used for apportionment. (Passel Declaration at 9).
Dr. Passel explained that the residual method would require the application of various assumptions in order to produce residual estimates for large geographic areas, such as the United States. However, because no information is available on smaller geographic areas, such as states, a proportion estimated at the national level must be assumed to apply to the states (synthetic assumption). Dr. Passel noted that "since the congressional apportionment process can be sensitive to quite small differences in the numbers, the errors introduced by use of synthetic assumptions, which are known to occur frequently, could make a difference in the distribution of one or more congressional seats". (Passel Declaration at 9).
Dr. Passel's opinions and conclusions are based on the Census Bureau's application of the residual method to obtain estimates of illegal aliens following the 1980 census. That application demonstrated various problems including both errors in the citizenship data
and inaccuracies with the INS data on alien registration.
In addition, since that time, the INS has discontinued its Alien Registration Program, following the 1981 registration and thus the INS does not have records of legal aliens alive and living in the United States or their addresses. Dr. Passel indicated that these records would be essential to an application of the residual method. Dr. Passel noted that the application of the residual method after the 1980 census "illustrates some of the problems presented by this method and its inappropriateness for use in excluding [illegal aliens] from apportionment counts . . . These estimates have proven useful for various research applications, but they are not sufficiently accurate for apportionment purposes." (Passel Declaration at 9).
While Dr. Passel did note that the lack of INS data on legal aliens does not totally rule out the application of the residual method at the national level, he did, however, conclude that the estimates of legal aliens developed at the national level cannot be disaggregated to the state level. (Passel Declaration at 14). More critically, Dr. Passel determined that, in any event, use of the residual method could not provide the necessary estimates within the required time frame. He stated:
. . . use of this method could not provide estimates by December 31, 1990, even if all the necessary data were available. It took several years of very careful research and analysis to produce the estimates regarding the 1980 census. The national estimates were first produced and presented in 1983; the state estimates in 1984. The same type of thorough analysis would be required following the 1990 census.
(Passel Declaration at 14. Emphasis in original).
Susan M. Miskura, Chief of the Decennial Planning Division of the Bureau of the Census, concurred with Dr. Passel regarding the residual method. Ms. Miskura stated that such an approach would create operational problems. Citizenship questions would result in untruthful answers or the avoidance of enumeration which, in turn, would result in inaccuracies in the count of the total resident population, to the detriment of other programs which are based on census figures. Moreover, the only potential source of data on legal residents would be registration data collected by the INS. She likewise opined that even if the INS registration program were reinstituted, the data would not be collected by the Census Bureau while conducting the 1990 census. (Miskura Declaration at 10-11).
Plaintiffs have failed to show that the remedy they seek will redress their alleged injuries. Plaintiffs seek an order from this court directing defendants to take all necessary action to avoid including illegal aliens as part of the enumeration used to apportion members of the House of Representatives. Plaintiffs contend that the residual method set forth by defendants' expert, Dr. Passel, could be successfully implemented by the Census Bureau in order to determine the number of illegal aliens counted in the 1990 census so as to exclude them for apportionment purposes, but plaintiffs have failed to show that residual method can be successfully implemented by the Census Bureau to accomplish such a result.
As in FAIR, the potential success of the Census Bureau in identifying illegal aliens for purposes of excluding them from the figures used for apportionment is speculative. Jurisdiction of the court may not rest on speculation. FAIR, supra, 486 F. Supp. at 574; Simpson v. Heckler, 630 F. Supp. 736, 740 (E.D.Pa. 1986).
The individual plaintiffs have failed to establish the elements of injury-in-fact and redressability, and, therefore, the individual plaintiffs lack standing.
B. State Plaintiffs
The plaintiff states, Pennsylvania, Kansas and Alabama bring this action in their capacity as states qua states, not as parens patriae, and allege that by defendants' failure to exclude illegal aliens from the census figures used for purposes of apportionment, they will suffer reduced political power and prestige in the nation's legislature. The plaintiff states contend that they possess the necessary standing since the inclusion of illegal aliens in the apportionment base will cause them to lose representation in the House of Representatives and in the Electoral College.
While a city or state may suffer an injury as a recipient of federal funds, City of Philadelphia, supra; Carey, supra, a city or state may not suffer an injury by the loss of representation, "for the loss of representation can only be suffered by the representatives' flesh-and-blood constituency". City of Philadelphia, supra, 503 F. Supp. at 671.
Here, plaintiff states do not allege injury on the basis of loss of funding, but, rather, on the loss of representation, reduced political power and prestige. The loss of representation in the House of Representatives cannot be suffered by a state, but only by the residents of the state. The loss of representation in the electoral college also cannot be suffered by a state, but only by electors or voters of a particular state. The plaintiff states, therefore, have failed to assert an injury as states.
Moreover, even assuming arguendo, that the plaintiff states were able to establish an alleged injury suffered by them as states, they fail to satisfy the necessary elements of injury-in-fact and redressability for the same reasons the court has found that the individual plaintiffs fail to satisfy those elements, and, therefore, the state plaintiffs fail to establish standing.
C. Plaintiff Organizations
Two organizations, FAIR and CCR are plaintiffs suing as representatives on behalf of their members who are residents of each of the 50 states. (Declarations of Daniel A. Stein and Barnaby W. Zall). FAIR is a non-profit corporation which was chartered in 1979 to advocate an end illegal immigration, to conform laws and policies governing immigration and to enforce laws prohibiting illegal immigration. (Stein Declaration). CCR is an unincorporated association organized to advocate on behalf of its members and inform the public of the need to prevent the unconstitutional apportionment of members of the House of Representatives.
An organization or association may have standing on behalf of its members if it can demonstrate that its members satisfy the requisite elements of standing. As the Supreme Court has stated:
Even in the absence of injury to itself, an association may have standing solely as the representative of its members. E.g., National Motor Freight Assn. v. United States, 372 U.S. 246, 9 L. Ed. 2d 709, 83 S. Ct. 688 (1963). The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy". See Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).
Warth supra, 422 U.S. at 511. Therefore, FAIR and CCR must demonstrate that its members are able to establish the injury-in-fact, causation and redressability requirements of standing. Warth, supra; McKinney v. U.S. Dept. of Treasury, 799 F.2d 1544, 1550 (Fed. Cir. 1986) (citations omitted).
For the same reasons set forth in the court's discussion of standing with regard to the individual plaintiffs, the court finds that FAIR and CCR have failed to establish the elements of injury-in-fact and redressability and therefore these plaintiffs have no standing.
Plaintiffs, individual members of the House of Representatives, the states of Alabama, Kansas and Pennsylvania and CCR and FAIR have failed to meet the injury-in-fact and redressability elements necessary to establish standing. Absent a showing by plaintiffs that they have suffered an injury to themselves that is likely to be redressed by a favorable decision, ".. . exercise of its power by a federal court would be gratuitous and thus inconsistent with the Article III limitation". Simon, supra, 426 U.S. at 38. Plaintiffs lack standing to challenge the proposed conduct of defendants in the 1990 census, and, therefore, the court lacks jurisdiction to decide the merits of this case. Accordingly, defendants' motion for summary judgment shall be granted.
An order follows.
AND NOW, this 8th day of May, 1989, in accordance with the foregoing memorandum, it is ORDERED as follows:
1. Plaintiffs are Thomas J. Ridge, Joseph M. Gaydos, Richard T. Schultze, John P. Murtha, Douglas Walgren, William Goodling, Paul E. Kanjorski, George W. Gekas, William F. Clinger, Curt Weldon, Donald Ritter, Bud Shuster, Lawrence Coughlin, Austin J. Murphy, Joseph Kolter, Robert A. Borski, Robert S. Walker, Joseph M. McDade, Gus Yatron, Thomas M. Foglietta, citizens and residents of the Commonwealth of Pennsylvania and members of the United States House of Representatives, in their individual capacities; The Commonwealth of Pennsylvania; James Slattery, Jan Meyers, Robert Whittaker, Daniel Glickman, Pat Roberts, citizens and residents of the State of Kansas and members of the United States House of Representatives, in their individual capacity; The State of Kansas; Harley O. Staggers, Robert Wise, citizens and residents of the State of West Virginia and members of the United States House of Representatives, in their individual capacities; Barbara B. Kennelly, citizen and resident of the State of Connecticut and member of the United States House of Representatives, in her individual capacity; Harris W. Fawell, Henry J. Hyde, citizens and residents of the State of Illinois and members of the United States House of Representatives, in their individual capacities; Dan Burton, citizen and resident of the States of Indiana and member of the United States House of Representatives, in his individual capacity; William S. Broomfield, citizen and resident of the State of Michigan and member of the United States House of Representatives, in his individual capacity; William Emerson, citizen and resident of the State of Missouri and member of the United States House of Representatives, in his individual capacity; Stephen L. Neal, Cass Ballenger, Tim Vallentine, citizens and residents of the State of North Carolina and members of the United States House of Representatives, in their individual capacities; Dennis Smith, citizen and resident of the State of Oregon and member of the United States House of Representatives, in his individual capacity; Thomas J. Bliley, Jr., citizen and resident of the State of Virginia and member of the United States House of Representatives, in his individual capacity; Thomas E. Petri, citizen and resident of the State of Wisconsin and member of the United States House of Representatives, in his individual capacity; Thomas Bevill, citizen and resident of the State of Alabama and member of the United States House of Representatives, in his individual capacity; the State of Alabama; Helen Delich Bentley, citizen and resident of the State of Maryland and member of the United States House of Representatives, in her individual capacity; William E. Dannermeyer, citizen and resident of the State of California and member of the United States House of Representatives, in his individual capacity; The Coalition for Constitutional Reapportionment, an unincorporated association, by Sandeep Khanna, Scott Strayer and Margaret G. Hubbard, Members; and Federation for American Immigration Reform (FAIR), a non profit corporation.
2. Defendants are William Verity, in his official capacity as Secretary, United States Department of Commerce; United States Department of Commerce; John G. Keane, in his official capacity as Director, Bureau of the Census; Bureau of the Census; Donald K. Anderson, in his official capacity as Clerk of the United States House of Representatives and the United States of America.
3. The motion of defendants for summary judgment against plaintiffs is granted.
4. Summary judgment is hereby entered in favor of defendants and against plaintiffs.