Franklin v. Mass

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To determine the number of representatives from each state, the constitution requires that a census be taken and the representation of each state determined from the results of the census. There is debate on how to determine the population of a given state. For example, a United States service member could be counted in the state he or she has a permanent address in, the place where he or she is last stationed, or the place that he or she pay taxes in.

Plaintiff thinks the way that the way to count the population of each state was both unconstitutional and arbitrary and capricious.

Procedural History

The district court ruled that although the constitutional argument was probably without merit, it rules that the Secretary of Commerce's decision on how to count the census data was arbitrary and capricious.


The court ruled that the Secretary's decision cannot be judicially reviewed because it is not a agency action because:

  1. it is not promulgated to the Federal Register
  2. there is no official administrative record
  3. the effect on reapportionment is felt only after the President makes the necessary calculations and reports the results to Congress.

Further, 5 USC 704 says that only final acts by an agency are reviewable. The President is not an agency, so his decision to on how to count the census data is not reviewable. The Secretary's decision on how to count the data is not reviewable because his decision is not final.

The court holds that an agency action is final when (among other things), "its impact is sufficiently direct and immediate and has a direct effect on day-to-day business." It is not final if it is "tentative ... or the ruling of a subordinate official." In this case, the Secretary's decision is subject to President approval, and therefore is not final.