512
Scalia, J., dissenting
depends not only on a particular exercise of the President's discretion, but also on the exercise of the unbridled discretion of a majority of 435 Representatives and 100 Senators (or two-thirds if the President does not agree), whom federal courts are equally powerless to order to take official acts.
Section 2 of the Fourteenth Amendment provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." Section 5 of the Fourteenth Amendment provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Pursuant to that authorization, Congress has provided that, once the President transmits to Congress the decennial reapportionment statement that the statute requires, 46 Stat. 26, 2 U. S. C. § 2a(a), "[e]ach State shall be entitled, . . . until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in [that] statement," § 2a(b). Thus, the law provides only two means by which Utah's entitlement can be altered: "the taking effect of a reapportionment under this section or subsequent statute." Ibid. The first means refers to the next decennial census; 1 the second to a new law enacted in the interim. Thus, even if the President wanted to transfer one congressional seat from North Carolina to Utah, he could not do so before 2011 unless Congress enacted a new law authorizing such a reapportionment.
1 It cannot be deemed to refer to reapportionment under the new Presidential statement that appellants seek, because "reapportionment under this section" pursuant to the 2000 census has already occurred. The Presidential statement effecting "reapportionment under this section" must be transmitted "[o]n the first day, or within one week thereafter, of the first regular session" of the first Congress after the census, § 2a(a)—a deadline met by the President's statement under challenge here, but now long since passed.
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