 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

FRANKLIN, SECRETARY OF COMMERCE, et al. v.
         MASSACHUSETTS et al.
appeal from the united states district court for
     the district of massachusetts
No. 91-1502.   Argued April 21, 1992"Decided June 26, 1992

The Constitution requires that the apportionment of Representatives be
determined by an ``actual Enumeration'' of persons ``in each State,''
conducted every 10 years.  Art. I, 2, cl. 3; Amdt. 14, 2.  After the
Secretary of Commerce takes the census in a form and content she
determines, 13 U.S.C. 141(a), she reports the tabulation to the
President, 141(b).  He, in turn, sends Congress a statement showing
the number of persons in each State, based on data from the ``decen-
nial census,'' and he determines the number of Representatives to
which each State will be entitled.  2 U.S.C. 2a(a).  For only the
second time since 1900, the Census Bureau (Bureau) allocated the
Department of Defense's overseas employees to particular States for
reapportionment purposes in the 1990 census, using an allocation
method that it determined most closely resembled ``usual residence,''
its standard measure of state affiliation.  Appellees Massachusetts
and two of its registered voters filed an action against, inter alios,
the President and the Secretary of Commerce, alleging, among other
things, that the decision to allocate federal overseas employees is
inconsistent with the Administrative Procedure Act (APA) and the
Constitution.  In particular, they alleged that the allocation of
overseas military personnel resulted in the shift of a Representative
from Massachusetts to Washington State.  The District Court, inter
alia, held that the Secretary's decision to allocate such employees to
the States was arbitrary and capricious under APA standards,
directed the Secretary to eliminate them from the apportionment
count, and directed the President to recalculate the number of
Representatives and submit the new calculation to Congress.

Held:The judgment is reversed.
785 F.Supp. 230, reversed.
Justice O'Connor delivered the opinion of the Court with respect
to Parts I, II, and IV, concluding that:
1.There was no ``final agency action'' reviewable under the APA.
Pp.6-12.
(a)An agency action is ``final'' when an agency completes its
decisionmaking process and the result of that process is one that will
directly affect the parties.  Here, the action that creates an entitle-
ment to a particular number of Representatives and has a direct
effect on the reapportionment is the President's statement to Con-
gress.  He is not required to transmit the Secretary's report directly
to Congress.  Rather, he uses the data from the ``decennial census''
in making his statement, and, even after he receives the Secretary's
report, he is not prohibited from instructing the Secretary to reform
the census.  The statutory structure here differs from those statutes
under which an agency action automatically triggers a course of
action regardless of any discretionary action taken by the President.
Japan Whaling Assn. v. American Cetacean Soc., 478 U.S. 221,
distinguished.  Contrary to appellees' argument, the President's
action here is not ceremonial or ministerial.  Apportionment is not
foreordained by the time the Secretary gives the President the report,
and the fact that the final action is the President's is important to
the integrity of the process.  Pp.6-11.
(b)The President's actions are not reviewable under the APA.
He is not specifically included in the APA's purview, and respect for
the separation of powers and the President's unique constitutional
position makes textual silence insufficient to subject him to its
provisions.  Pp.11-12.
2.The Secretary's allocation of overseas federal employees to their
home States is consistent with the constitutional language and goal
of equal representation.  It is compatible with the standard of ``usual
residence,'' which was the gloss given the constitutional phrase ``in
each State'' by the first enumeration Act and which has been used by
the Bureau ever since to allocate persons to their home States.  The
phrase may mean more than mere physical presence, and has been
used to include some element of allegiance or enduring tie to a place.
The first enumeration Act also used ``usual place of abode,'' ``usual
resident,'' and ``inhabitant'' to describe the required tie.  And ``Inhab-
itant,'' in the related context of congressional residence qualifications,
Art. I. 2, has been interpreted to include persons occasionally absent
for a considerable time on public or private business.  ``Usual resi-
dence'' has continued to hold broad connotations up to the present
day.  The Secretary's judgment does not hamper the underlying
constitutional goal of equal representation, but, assuming that
overseas employees have retained ties to their home States, actually
promotes equality.  Pp.14-17.

O'Connor, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and II, in which
Rehnquist, C. J., and White, Scalia, and Thomas, JJ., joined, the
opinion of the Court with respect to Part IV, in which Rehnquist,
C. J., and White, Blackmun, Stevens, Kennedy, Souter, and Thom-
as, JJ., joined, and an opinion with respect to Part III, in which Rehn-
quist, C. J., and White and Thomas, JJ., joined.  Stevens, J., filed an
opinion concurring in part and concurring in the judgment, in which
Blackmun, Kennedy, and Souter, JJ., joined.  Scalia, J., filed an
opinion concurring in part and concurring in the judgment.


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
          SUPREME COURT OF THE UNITED STATES--------
                       No. 91-1502
                        --------
        BARBARA FRANKLIN, SECRETARY OF COMMERCE,
            et al., APPELLANTS v. MASSACHUSETTS et al.
        on appeal from the united states district court for
                   the district of massachusetts
                          [June 26, 1992]

       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 controver-
sies.  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 designated in their personnel files as
their  home of record altered the relative state populations
enough to shift a Representative from Massachusetts to
Washington.  A three-judge panel of the United States
District Court for the District of Massachusetts held that
the decision to allocate military personnel serving overseas
to their  homes of record was arbitrary and capricious
under the standards of the Administrative Procedure Act
(APA), 5 U. S. C. 701 et seq.  As a remedy, the District
Court directed the Secretary to eliminate the overseas
federal employees from the apportionment counts, directed
the President to recalculate the number of Representatives
per State and transmit the new calculation to Congress,
and directed the Clerk of the House of Representatives to
inform the States of the change.  The federal officials
appealed.  We noted probable jurisdiction, stayed the
District Court's order, and ordered expedited briefing and
argument.  503 U. S. ___ (1992).  We now reverse.
                                 I
       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 insure 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 to make it virtually self-
executing, so that the number of Representatives per State
would be determined by the Secretary of Commerce and the
President without any action by Congress.  See S. Rep. No.
2, 71st Cong., 1st Sess., 2-3 (1929) ( The need for legisla-
tion of this type is confessed by the record of the past nine
years during which Congress has refused to translate the
1920 census into a new apportionment. . . . As a result,
great American constituencies have been robbed of their
rightful share of representation . . .); United States Dept.
of Commerce v. Montana, 503 U. S. ---, ---, and n. 25
(1992).
         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 estab-
lishing 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 Secret-
ary'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 particu-
lar States for reapportionment purposes until 1970.  App.
175, 177.  The 1970 census, taken during the Vietnam War,
allocated members of the Armed Forces stationed overseas
to their  home of record, using Defense Department
personnel records.  Id., at 179.   Home of record is the
State declared by the person upon entry into military
service, and determines where he or she will be moved after
military service is complete.  Id., at 149.  Because the
Bureau found that military personnel were likely to
designate a  home of record with low or no income taxes
instead of their true home State"even though home of
record does not determine state taxation"the Bureau did
not allocate overseas employees to particular States in the
1980 census.  App. 180.
       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-Secre-
tary of Commerce Robert Mosbacher agreed to allocate
overseas federal employees to their home States for purpos-
es 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 shift was that the Department
of Defense, the largest federal overseas employer, planned
to poll its employees to determine, among other things,
which State they considered their permanent home.  Id., at
184.  In December 1989, however, the Defense Department
canceled its plans to conduct the survey due to a lack of
funds.  Ibid.  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.  This possibil-
ity also failed to materialize when the Defense Department
informed the Census Bureau that it was not able to
assemble the information after all.  Ibid.
       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 Research Service
Report, App. 151, n. 13.  For similar reasons, last duty
station was rejected because it would provide only a work
address, and the employee's last home address might have
been in a different State, as with those, for example, who
worked in the District of Columbia but lived in Virginia or
Maryland.  3 A.R. 925.  Residence at a  last duty station
may also have been of a very short duration and may not
have reflected the more enduring tie of usual residence.
App. 150.  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.  Id., at
186.
     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 uncon-
stitutional 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 of record data was
arbitrary and capricious under the standards of the APA.
Id., at 264-266.
                                II
       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 promul-
gated 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 Con-
gress.  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 2 U. S. C. 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 direct and immediate and has a  direct effect
on . . . day-to-day business.  Abbott Laboratories v.
Gardner, 387 U. S. 136, 152 (1967).  An agency action is not
final if it is only  the ruling of a subordinate official, or
 tentative.  Id., at 151.  The core question is whether the
agency has completed its decisionmaking process, and
whether the result of that process is one that will directly
affect the parties.  In this case, the action that creates an
entitlement to a particular number of Representatives and
has a direct effect on the reapportionment is the President's
statement to Congress, not the Secretary's report to the
President.
    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  trans-
mit 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.
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 Secre-
tary 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 Shift 19 Seats in the
U. S. House of Representatives (Dec. 26, 1990) ( The
population counts set forth herein are subject to possible
correction for undercount and overcount.  The United States
Department of Commerce is considering whether to correct
these counts and will publish corrected counts, if any, not
later than July 15, 1991).  Moreover, there is no statute
that rules out an instruction by the President to the
Secretary to reform the census, even after the data is
submitted to him.  It is not until the President submits the
information to Congress that the target stops moving,
because only then are the States entitled by 2a to a
particular number of Representatives.  Because the Secre-
tary's report to the President carries no direct consequences
for the reapportionment, it serves more like a tentative
recommendation than a final and binding determination.
It is, like  the ruling of a subordinate official, Abbott
Laboratories v. Gardner, supra, at 151, not final and
therefore not subject to review.  Cf. Chicago & Southern Air
Lines, Inc. v. Waterman S.S. Corp, 333 U.S. 103, 109 (1948);
United States v. Bush & Co., 310 U. S. 371, 379 (1940).
       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 to the President under 22 U. S. C. 1978(a)(1)
automatically triggered sanctions by the Secretary of State
under 16 U. S. C. 1821(e)(2)(B), regardless of any discre-
tionary action the President himself decided to take.  Japan
Whaling, supra, at 226.  Under 13 U. S. C. 141(a), by
contrast, the Secretary's report to the President has no
direct effect on reapportionment until the President takes
affirmative steps to calculate and transmit the apportion-
ment to Congress.
     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., 4-5 (1929).
       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, 2 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 Presi-
dent, 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
to Congress.  See S. Rep. No. 1446, 70th Cong., 2d Sess., 4
(1929).  The bill was later amended to require the participa-
tion of the President:   Another objection to the previous bill
was that the Secretary of Commerce should not be intrusted
with the final responsibility for making so important a
report to Congress.  The new and pending bill recognizes
this objection to the extent that the President is substituted
for the Secretary of Commerce so that this function may be
served by a constitutional officer.  This makes for greater
permanence, which is one of the major virtues to be desired
in such a statute.  S. Rep. No. 2, supra, at 5.  It is hard to
imagine a purpose for involving the President if he is to be
prevented from exercising his accustomed supervisory
powers over his executive officers.  Certainly no purpose to
alter the President's usual superintendent role is evident
from the text of the statute.
       As enacted, 2 U. S. C. 2a provides that the Secretary
cannot act alone; she must send her results to the Presi-
dent, 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 to the provisions of the APA.  We
would require an express statement by Congress before
assuming it intended the President's performance of his
statutory duties to be reviewed for abuse of discretion.  Cf.
Nixon v. Fitzgerald, 457 U. S. 731, 748, n. 27 (1982) (Court
would require an explicit statement by Congress before
assuming Congress had created a damages action against
the President).  As the APA does not expressly allow review
of the President's actions, we must presume that his actions
are not subject to its requirements.  Although the Presi-
dent's actions may still be reviewed for constitutionality, see
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952), Panama Refining Co. v. Ryan, 293 U. S. 388 (1935),
we hold that they are not reviewable for abuse of discretion
under the APA.  See Armstrong v. Bush, 288 U. S. App.
D. C. 38, 45, 924 F. 2d 282, 289 (1991).  The District Court
erred in proceeding to determine the merits of the APA
claims.
                            III
       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 chal-
lenges to apportionment are justiciable.  See United States
Dept. of Commerce v. Montana, 503 U. S. ___ (1992).
    We first address standing.  To invoke the constitution-
al power of the federal courts to adjudicate a case or
controversy under Article III, appellees here must allege
and prove an injury  fairly traceable to the [appellants']
allegedly unlawful conduct and likely to be redressed by the
requested relief.  Allen v. Wright, 468 U. S. 737, 751
(1984).
       To determine whether appellees sufficiently allege and
prove causation requires separating out appellees' claims:
Appellees claim both that the Secretary erred in deciding to
allocate overseas employees to various States and that the
Secretary erred in using inaccurate data to do so.  Appellees
have shown that Massachusetts would have had an
additional Representative if overseas employees had not
been allocated at all.  App. 183.  They have neither alleged
nor shown, however, that Massachusetts would have had an
additional Representative if the allocation had been done
using some other source of  more accurate data.  Conse-
quently, even if appellees have standing to challenge the
Secretary's decision to allocate, they do not have standing
to challenge the accuracy of the data used in making that
allocation.  We need, then, review only the decision to
include overseas federal employees in the state population
counts, not the Secretary's choice of information sources.
       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, 343 U. S. 579
(1952), 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  ministeri-
al 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 court has no jurisdiction of a bill
to enjoin the President in the performance of his official
duties.  Mississippi v. Johnson, supra, at 501.  At the
threshold, the District Court should have evaluated
whether injunctive relief against the President was avail-
able, and, if not, whether appellees' injuries were nonethe-
less redressable.
       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 determina-
tions concerning the census; even though she cannot herself
change the reapportionment, she has an interest in litigat-
ing its accuracy.  And, as the Solicitor General has not
contended to the contrary, we may assume it is substan-
tially 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.

                          IV

       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 March 1, 1790, 5, 1
Stat. 103.  Because the interpretations of the Constitution
by the First Congress are persuasive, Bowsher v. Synar, 478
U. S. 714, 723-724 (1986), appellees argue that the Secre-
tary should have allocated the overseas employees to their
overseas stations, because those were their usual resi-
dences.
       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 constitu-
tional language and the constitutional goal of equal
representation.  See United States Dept. of Commerce v.
Montana, supra, at ___-___ (1992) (slip op., at 17-18).
        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 March 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, repro-
duced 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 March 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 final provision.  2 Farrand,
Records of the Federal Convention of 1787, at 566, 590.
  In the related context of congressional residence qualifica-
tions, 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 chal-
lenged 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, report-
ing that:  [t]here 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 inhabit-
ant 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 students were counted as belonging to the State
where their parents resided, not to the State where they
attended school.  App. 219.  Even today, high school
students away at boarding school are allocated to their
parents' home State, not the location of the school.  Id., at
220.  Members of Congress may choose whether to be
counted in the Washington D.C. area or in their home
States.  Id., at 218.  Those who are institutionalized in out-
of-state hospitals or jails for short terms are also counted in
their home States.  Id., at 225.
       In this case, the Secretary of Commerce made a judg-
ment, 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 Secre-
tary's judgment does not hamper the underlying constitu-
tional 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 rep-
resentation 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
                                                   Reversed.


           SUPREME COURT OF THE UNITED STATES--------
                       No. 91-1502
                        --------
        BARBARA FRANKLIN, SECRETARY OF COMMERCE,
            et al., APPELLANTS v. MASSACHUSETTS et al.
        on appeal from the united states district court for
                   the district of massachusetts
                          [June 26, 1992]

       Justice Stevens, with whom Justice Blackmun,
Justice Kennedy, and Justice Souter join, concurring in
part and concurring in the judgment.
       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.
                                 I
       During the decade after 1980 the population of Massachu-
setts 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 Common-
wealth 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
United States Dept. of Commerce v. Montana, 503 U. S. ___
(1992), and is no longer in dispute.  Pursuant to the judicial
review provisions of the Administrative Procedure Act, 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 court concluded
that the Secretary's decision was  arbitrary and capricious,
and an abuse of discretion.  785 F. Supp., at 267.
       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 Gen-
eral, for he advanced no such novel claim in his argument
seeking reversal.  The Court's conclusion is erroneous for
several reasons.
                                II
       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 in 1849.   A Census Office in the Department
of the Interior was established in 1899 and made perma-
nent in 1902.  A year later, the Census Office was moved
to the newly formed Department of Commerce and Labor.
       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 apportion-
ment 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 calcula-
tions 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.  There is no
indication whatsoever of an intention to introduce a layer
of Executive discretion between the taking of the census
and the application of the reapportionment formula.  The
intention was exactly the contrary: to make the apportion-
ment proceed automatically based on the census.
       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 appor-
tionment 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 Presi-
dent 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 8 (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 Secretary and reported to the President.
The Court's argument cannot be harmonized with a
statutory scheme that directs the Secretary to take the
 decennial census and the President to report to Congress
figures  as ascertained under the . . . decennial census.
This language cannot support the Court's view that the
statute endows the President with discretion to modify the
census results reported by the Secretary.
       The legislative record, moreover, establishes that the
Executive involvement in the process is to be wholly
ministerial.  The question of the discretion allowed to the
President was discussed on the floor of the Senate, and the
sponsor of the bill, Senator Vandenberg of Michigan, stated
unequivocally that the President exercised no discretion
whatsoever:  I believe as a matter of indisputable fact, that
function served by the President is as purely and com-
pletely a ministerial function as any function on earth could
be.  71 Cong. Rec. 1858 (1929).  In a colloquy with other
legislators, Senator Vandenberg made clear that the bill did
not allow the President to change the census figures hereceived:
 Mr. SWANSON:  As I understand, the Senator from
Montana says, after reading the bill carefully, that the
President is bound and has no discretion under its
terms; so that if there should be glaring frauds all over
the country he would be compelled to make the appor-
tionment according to the census.

 Mr. WALSH of Montana:  I should say so, because as
I understand, he is not authorized to disregard any
numbers upon any ground.

 Mr. SWANSON:  I should like to ask the Senator from
Michigan if that is his view?  I understand the Senator
from Montana to say that if the census returns shall be
shown to be reeking with frauds the President will
have no power to correct them; that he must follow the
census returns as certified, regardless of the fraud that
may be involved.  Is that the view of the Senator from
Michigan?
               .        .        .       .        .

 Mr. VANDENBERG:  My answer is that the Senator
from Montana is entirely correct.  There is absolutely
no discretion in name or nature reposed in the Presi-
dent in connection with the administration of this
proposed act.  71 Cong. Rec. 1845-1846 (1929).
    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 apportionment calculations.  Nor did the Solicitor
General advance that argument in this litigation.  As a
matter of practice, the President has consistently and
faithfully performed the ministerial duty described by
Senator Vandenberg.  The Court's suggestion today that the
statute gives him discretion to do otherwise is plainly
incorrect.
       Because the Census Act directs that the tabulation of the
total population by States shall be  reported by the Secre-
tary to the President, the Court suggests that it is  like a
tentative recommendation to the President, ante, at 9.
This suggestion is misleading because, unlike the typical
 tentative recommendation, the Census Report is a public
document.  It is released to the public at the same time that
it is transmitted to the President.  By law, the Census
Report is distributed to federal and state agencies because
it provides the basis for the allocation of various benefits
and burdens among the States under a variety of federal
programs.  The Secretary also transmits the census figures
directly to the States to assist them in redistricting.  See 13
U. S. C. 141(c).
       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.  In setting forth guidelines for possible adjust-
ment of the census results, the Secretary stated:
 The resulting counts must be of sufficient quality and
level of detail to be usable for Congressional reappor-
tionment and legislative redistricting, and for all other
purposes and at all levels for which census counts are
published. . . .
         [T]here can be, for the population at all geographic
levels at any one point in time, only one set of official
government population figures.  55 Fed. Reg.
9840-9841 (1990).
To ensure uniformity, the Secretary's count must establish
the final census figures.
       In light of the statutory language, the legislative history,
and the consistent Executive practice, the Court's conclu-
sion that the Census Report is not  final agency action is
as insupportable as it is surprising.
                                III
       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  commit-
ted to agency discretion by law.  5 U. S. C 701(a)(2).
       As we have frequently recognized, the  strong presump-
tion 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).  The
Secretary asserts that the discretion afforded by the statute
is at least as broad as that allowed the Director of Central
Intelligence in the statute we considered in Webster v. Doe,
486 U. S. 592 (1988).  That assertion cannot withstand
scrutiny.  The statute at issue in Doe provided that  the
Director of Central Intelligence may, in his discretion,
terminate the employment of any officer or employee of the
Agency whenever he shall deem such termination necessary
or advisable in the interests of the United States . . . .  50
U. S. C. 403(c).  In concluding that employment discharge
decisions were committed to agency discretion, we empha-
sized the language of  deem . . . advisable, which we found
to provide no meaningful standard of review.  We also
relied on the overall statutory structure of the National
Security Act.
       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
is difficult to imagine two statutory schemes more dissimi-
lar than the National Security Act and the Census Act.
Though they both relate to the gathering of information, the
similarity ends there.  Doe raises the possibility that, except
for constitutional claims, the Director of Central Intelli-
gence may enjoy unreviewable discretion to discharge
employees.  This conclusion accords with the principle of
judicial deference that pervades the area of national
security.  See, e.g., Department of Navy v. Egan, 484 U. S.
518, 530 (1988); CIA v. Sims, 471 U. S. 159, 180-181
(1985).  While the operations of a secret intelligence agency
may provide an exception to the norm of reviewability,
the taking of the census does not.  The open nature of the
census enterprise and the public dissemination of the
information collected are closely connected with our
commitment to a democratic form of government.
The reviewability of decisions relating to the conduct of
the census bolsters public confidence in the integrity of
the process and helps strengthen this mainstay of our
democracy.
       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 (1985); Southern R. Co. v. Seaboard
Allied Milling Corp., 442 U. S. 444 (1979); Morris v.
Gressette, 432 U. S. 491 (1977).  These are areas in which
courts have long been hesitant to intrude.  The taking of
the census is not such an area of traditional deference.
     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 con-
tained 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.  This statutory
command also embodies a duty to conduct a census that is
accurate and that fairly accounts for the crucial representa-
tional rights that depend on the census and the apportion-
ment.  The  usual residence policy that has guided the
census since 1790 provides a further standard by which to
evaluate the Secretary's exercise of discretion.  See general-
ly Heckler v. Chaney, 470 U. S., at 836; Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mutual Automo-
bile Ins. Co., 463 U. S. 29, 41-43 (1983); Padula v. Webster,
822 F. 2d 97, 100, 261 U. S. App. D.C. 365, 368 (1987).
The District Court was clearly correct in concluding that
the statutory framework and the long-held administrative
tradition provide a judicially administrable standard of
review.
                                IV
       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.  I turn
now to appellees' contention that the Secretary's decision to
include overseas federal employees was arbitrary and capri-
cious and should have been set aside under the APA.
       With the exception of the census conducted in 1900,
overseas federal employees were not included in state
census totals before 1970.  In the census conducted in
1970, during the Vietnam War, overseas military personnel
were assigned to States for apportionment purposes based
on the  home of record appearing in their personnel
files.  The Bureau reverted to its previous policy of
excluding overseas employees from apportionment totals in
the 1980 census.  In explaining this decision, one of the
reasons cited by Bureau officials was the  unknown
reliability of the data relied on to determine the  home
State of overseas personnel.  App. 55.  In discussions with
the Census Bureau and in testimony before Congress,
officials of the Defense Department agreed that  home of
record data had a high  error rate and might have little
correlation with an employee's true feelings of affiliation.
See id., at 124, 183.
       In July 1989, then-Secretary Mosbacher decided to
include overseas employees in state population figures in
the 1990 census.  The decision memorandum approved
by the Secretary described several reasons for this conclu-
sion, including  growing bipartisan concern of the Congress
and the belief of the Defense Department that its employees
should be included in apportionment calculations because
they considered themselves to be  usual residents of the
United States.  Id., at 120.  The prospect of more accurate
data than previously available also contributed to the
decision.  The memorandum stated that the Defense
Department's plans to conduct an enumeration of its
employees provided a  significant reason for the decision.
Id., at 121; see also id., at 184.  In December 1989, how-
ever, a lack of funds led the Defense Department to cancel
the survey.  Ibid.  The Secretary nevertheless adhered to
the decision to include overseas personnel.
       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 sur-
vey.  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 that, even without the survey, information on
overseas personnel would be  supplemented and improved,
App. 161, and would thus be more accurate than the data
available in the past.  Moreover, while the anticipated
Defense Department survey played an important role in the
Secretary's initial decision, other factors cited in the
memorandum continued to support the Secretary's choice to
include overseas personnel.
       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.


            SUPREME COURT OF THE UNITED STATES--------
                       No. 91-1502
                        --------
        BARBARA FRANKLIN, SECRETARY OF COMMERCE,
            et al., APPELLANTS v. MASSACHUSETTS et al.
        on appeal from the united states district court for
                   the district of massachusetts
                          [June 26, 1992]

       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 Adminis-
trative 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
standing to assert these claims, but that the claims are
meritless.  I disagree with the Court's conclusion on the
standing question, and therefore do not reach the merits.
Our cases have established that there are three elements to the
irreducible constitutional minimum of standing
required by Article III: (1) the plaintiffs must establish that
they have suffered  injury in fact; (2) they must show
causation between the challenged action and the injury; and
(3) they must establish that it is likely that the injury will
be redressed by a decision in their favor.  Lujan v. Defend-
ers of Wildlife, 504 U. S. ___, ___ (1992) (slip op., at 4).
Appellees have clearly satisfied the first two requirements,
but I think they founder on the third.
       The plurality concludes that declaratory relief directed at
the Secretary alone would be sufficient to redress appellees'
injury.  Ante, at 13-14.  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 con-
cerned the sequence of events will occur.  But as the Court
correctly notes, ante, at 8-11, 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 10.  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 or legislative
branches), in performing a function that is not wholly
ministerial, will follow the advice of a subordinate official.
The decision is by Constitution or law conferred upon him,
and I think we are precluded from saying that it is, in
practical effect, the decision of someone else.  Indeed,
judicial inquiry into or speculation about the probability of
such  practical subservience"never mind acting upon the
outcome of such inquiry or speculation"seems to me
disrespectful of a coordinate branch.  On such a theory of
redressability, suit would lie (assuming injury-in-fact could
be shown) against the members of the President's Cabinet,
or even the members of his personal staff, for the almost-
sure-to-be-followed advice they give him in their respective
areas of expertise.
   The plurality, however, has a different theory of redress-
ability.  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 consis-
tent with what the District Court judgment orders the
Secretary to submit.  Ante, at 13-14.  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.  Redress-
ability 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
only that a new census tabulation be prepared, but also
that the President issue a new certification and that the
Clerk of the House forward the new apportionment to the
50 Governors.  It is a commentary upon the level to which
judicial understanding"indeed, even judicial awareness"of
the doctrine of separation of powers has fallen, that the
District Court entered this order against the President
without blinking an eye.  I think it clear that no court has
authority to direct the President to take an official act.
       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 offi-
cials"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 (1800) (Chase, J., sitting on Circuit), though
there is no doubt that we cannot direct them in the perfor-
mance of their constitutionally prescribed duties, see East-
land v. United States Servicemen's Fund, 421 U. S. 491
(1975) (refusing to enjoin the issuance of a congressional
subpoena).
       I am aware of only one instance in which we were
specifically asked to issue an injunction requiring the
President to take specified executive acts: to enjoin Presi-
dent Andrew Johnson from enforcing the Reconstruction
Acts.  As the plurality notes, ante, at 13, we emphatically
disclaimed the authority to do so, stating that  this court
has no jurisdiction of a bill to enjoin the President in the
performance of his official duties.  Mississippi v. Johnson,
4 Wall. 475, 501 (1867).  See also C. Burdick, The Law of
the American Constitution 50, pp. 126-127 (1922); C. Pyle
& R. Pious, The President, Congress, and the Constitution
170 (1984) ( No court has ever issued an injunction against
the president himself or held him in contempt of court).
The apparently unbroken historical tradition supports the
view, which I think implicit in the separation of powers
established by the Constitution, that the principals in
whom the executive and legislative powers are ultimately
vested"viz., the President and the Congress (as opposed to
their agents)"may not be ordered to perform particular
executive or legislative acts at the behest of the Judiciary.
       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 acknowl-
edging 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 perfor-
mance of executive functions: The President's immunity
from such judicial relief is  a functionally mandated
incident of the President's unique office, rooted in the
constitutional tradition of the separation of powers and
supported by our history.  Id., at 749; see also id., at
749-757; id., at 760-764 (Burger, C. J., concurring).
Permitting declaratory or injunctive relief against the
President personally would not only distract him from his
constitutional responsibility to  take Care that the Laws be
faithfully executed, U. S. Const. Art. II, 3, but, as more
and more disgruntled plaintiffs add his name to their
complaints, would produce needless head-on confrontations
between district judges and the Chief Executive.  (If official-
action suits against the President had been contemplated,
surely they would have been placed within this Court's
original jurisdiction.)  It is noteworthy that in the last
substantive section of Nixon v. Fitzgerald where we explain
why  [a] rule of absolute immunity for the President will
not leave the Nation without sufficient protection against
misconduct on the part of the Chief Executive, 457 U. S.,
at 757, because of  [t]he existence of alternative remedies
and deterrents, id., at 758, injunctive or declaratory relief
against the President is not mentioned.
       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 legisla-
tive action can be reviewed, not by suing Members of
Congress for the performance of their legislative duties, see,
e.g., Powell v. McCormack, 395 U. S. 486, 503-506 (1969);
Dombrowski v. Eastland, 387 U. S. 82 (1967); Kilbourn v.
Thompson, 103 U. S. 168 (1881), but by enjoining those
congressional (or executive) agents who carry out Congress's
directive.  Unless the other branches are to be entirely
subordinated to the Judiciary, we cannot direct the Presi-
dent to take a specified executive act or the Congress to
perform particular legislative duties.
       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.  Since I agree with the Court's conclusion that
appellee's constitutional claims do not provide an alterna-
tive ground that would support the judgment below, I
concur in its judgment reversing the District Court.


