Franklin v. Massachusetts

LOCATION:Nathan Bishop Middle School

DOCKET NO.: 91-1502
DECIDED BY: Rehnquist Court (1991-1993)

CITATION: 505 US 788 (1992)
ARGUED: Apr 21, 1992
DECIDED: Jun 26, 1992

John G. Roberts, Jr. – for appellants
Dwight Golann – Argued the case for the appellees

Facts of the case

Under Article I, Section 2, Clause 3 of the Constitution, a census must be conducted every ten years and the distribution of Representatives in Congress adjusted to provide proportional representation. The census is designed and carried out by the Secretary of Commerce before the results are forwarded to the President, who determines the number of Representatives each state will receive. In 1990, for only the second time since 1900, the census allocated employees of the Department of Defense who were stationed oversees to the states designated their “homes of record.” Massachusetts claimed that this adjustment of the census shifted one Representative from Massachusetts to Washington state. They brought suit under the Administrative Procedure Act (APA) and the Constitution, arguing that the allocation of overseas personnel to their “homes of record” was arbitrary and capricious under the APA standards and did not meet the constitutional requirement of counting the number of people “in each State.”


Did the Secretary of Commerce’s decision to apportion overseas personnel of the Department of Defense to their “homes of record” for census purposes meet the constitutional requirement of a census counting the number of people “in each State,” or was the procedure “arbitrary and capricious” under the Administrative Procedure Act?

Media for Franklin v. Massachusetts

Audio Transcription for Oral Argument – April 21, 1992 in Franklin v. Massachusetts

Audio Transcription for Opinion Announcement – June 26, 1992 in Franklin v. Massachusetts

Byron R. White:

Justice O’Connor has three cases to announce.

Sandra Day O’Connor:

The first is Franklin versus Massachusetts which comes to us on appeal from a three-judge District Court in the District of Massachusetts.

The District Court’s judgment directed federal officials to reform the 1990 census and to reapportion congressional representatives accordingly giving one more representative to Massachusetts and one less to Washington State.

The federal officials who determined the census and reapportionment appealed from that judgment.

In the opinion filed today, we reverse.

The Constitution requires that the apportionment or representatives be redetermined every 10 years by an actual enumeration of persons in each state.

After the Secretary of Commerce takes the census, she reports the tabulation to the President.

He, intern, sends Congress a statement showing the number of persons in each state and he determines according to a calculation prescribed by statute the number of representatives to which each state will be entitled.

In 1990, for only the second time since 1900, the Census Bureau allocated the Department of Defense’s overseas employees to particular states for reapportionment purposes.

The allocation of these employees changed the relative state population counts enough to give Washington one more representative and Massachusetts one less.

At least, Massachusetts and two of its registered voters filed an action against Census Bureau officials, the Secretary of Commerce, and the President among others, challenging the counting of overseas employees as contrary to the Constitution and is arbitrary and capricious in violation of standard set by the Administrative Procedure Act.

The District Court did not reach the constitutional claims but found the Census Bureau’s decision to allocate overseas employees was arbitrary and capricious.

We hold, first, that the District Court erred in reviewing the Administrative Procedure Act claims because there is no final agency action at issue here.

the final action that determines the reapportionment is the President’s statement to Congress, not the Secretary’s census count.

Up until the time that the President informs Congress of the new apportionment, the census figures are subject to change and, if not, settle the reapportionment.

And the President’s action, while final, is not subject to review under the Administrative Procedure Act because the President is not expressly included within the Act’s definition of agency.

Respect for the separation of powers and the President’s unique constitutional role makes textural silence insufficient to subject the President’s statutory duties to Administrative Procedure Act review.

Second, we hold that Massachusetts’ constitutional claim falls on the merits.

The decision to allocate overseas federal employees to their home states is consistent with the constitutional language and the goal of equal representation.

It is also compatible with the standard of usual residence which was the phrase used in the first enumeration Act and which has been used by the Bureau ever since to allocate persons to their home states.

The phrase has carried broad connotations of enduring ties to a place and allows for temporary absences from a state especially those compelled by government service.

Those serving the United States abroad may constitutionally be included in the enumeration of their home states and may be represented in Congress.

Justice Stevens has filed an opinion concurring in part and concurring in the judgment in which Justices Blackmun, Kennedy, and Souter have joined; Justice Scalia has filed an opinion concurring in part and concurring in the judgment.