U.S. Census and the Constitution

For the purpose of apportioning Congressional representation, Article 1, Section 2 of the Constitution states that an “Enumeration shall be made within three Years after the first meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” (Clearly, the last eight words are subject to interpretation.)

By definition, a census is “the periodic official count of the number of persons and their condition and of the resources of a country.” Located within the Dept. of Interior in 1902, in 1903 it was transferred to the Commerce & Labor Dept and, for all practical purposes, is currently supervised by the White House.

Omitting Indians not taxed, the first census was conducted under the aegis of the State Department in August of 1790 and elicited the name & number of heads of households, the age & number of white males, the number of white females, the number of all other free persons, and the number of slaves who were counted, for purposes of apportionment, as three-fifths of a person. (Note: the 3/5 stipulation was subsequently removed by the 14th Amendment and the Attorney General ruled in 1940 that there were no longer any “untaxed” Indians in the USA.) Failure to cooperate with the census taker was punishable by a $20 fine. Failure of a census taker to properly record information or to submit a false return was punishable by a $200 - $800 fine.

Now conducted by law (13 USC 141) o/a April 1st every ten years, the Census elicits a relatively straightforward and unintrusive enumeration of persons residing within a particular residence: name, gender, age, race.

On the other hand, the mandatory and considerably more comprehensive American Community Survey (ACS) questionnaire, which is distributed to a randomly chosen 3,000,000 households, elicits not only the number of persons, but such things as the size of the house, personal disabilities, rental, insurance, property tax & utility expenses, sexual orientation, religion, marital & divorce status, education level, whether you own a vehicle or receive food stamps, occupants’ income, health insurance coverage, languages spoken, employment status, etc, etc.

Per Title 13, Section 221 of the US Code, refusal to answer any of the 11-page 48-question ACS subjects respondents to a fine equivalent to $100 per unanswered question and $500 per question answered untruthfully, up to an aggregate of $5,000.

It is important to note, however, that since Article 1, Sec 2, Clause 3 of the Constitution authorizes enumeration only, many constitutional experts opine that while the mechanical manner in which the enumeration is conducted is within the purview of Congress, asking a superfluity of questions beyond simple enumeration may be unconstitutional.

Importantly, the constitutionality of Title 13, Sec 221 itself has never been specifically challenged in court. As such, I suspect this is why the Census Bureau has, heretofore, not imposed any fines. However, the Census Bureau can be expected to dog noncompliant respondents in order to obtain a completed ACS questionnaire.

In any event, case law suggests lingering legal concerns.

In US v Moriarity (SDNY 1901), the district court ruled that the Constitution provides Congress the authority to collect “statistics” in the census “if necessary and proper” for the efficient exercise of other federal powers enumerated in the Constitution.

As early as 1870, the Supreme Court rendered unquestionable the authority of Congress to require both enumeration and collection of statistics.

In Morales v Daley (TX, 2000), another District Court ruled that there was “no limit” on the collection of additional data when necessary for efficient governance, adding that eliciting additional information did not violate a citizen’s right to privacy and speech.

Also, in Dept of Commerce v House of Representatives (1999), the Supreme Court described the census as “the linchpin of the federal system…collecting data on characteristics on individuals, households, and housing units throughout the country”, thus underscoring the importance of enumeration and the collection of statistics.

Obviously, the substance of those additional questions and statistics which may, in fact, be "necessary and proper" for efficient and constitutional governance remains essentially undefined. And that is the nub of the issue for me.

Thus, among others, Dr. Walter Williams, George Mason University, and Congresswoman Michele Bachman plan to provide only the number and names of the people in their household. Nothing more. If pressed by census takers, Dr. Williams counsels that respondents should exercise their 5th Amendment right to remain silent.

In reaction to the anger and trepidation of many Americans over what may be fairly construed as invasive ACS questioning, Rep. Ted Poe (R-TX) recently introduced HR 3131 which would make participation in the ACS strictly voluntary--except for the respondent’s name, contact info, date of response, and no. of person living or staying at the residence.

So, that’s my abbreviated take on the census issue. For me, concerns over the constitutionality and confidentiality of ACS questions necessarily linger. Thus, what course of action respondents take when confronted by what may in a court of law be properly and legally construed as unnecessarily invasive queries is really a matter of conscience and choice. As said,
the constitutionality of the ACS is certainly unsettled.