The Sole and Express Purpose of the Census

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by Bob Greenslade

In a few weeks, every household in these United States will begin receiving the 2010 Census form in the mail. The long form used in the past has been replaced with a new short form. Beginning this year, information previously requested on the old long form will be incorporated into a separate document called the “American Community Survey.” This survey will be sent to a small percentage of the population on a rotating basis throughout the decade. According to the Census Bureau—“no household will receive the survey more often than once every five years.” Rumor has it this will be expanded, eventually, to cover every household during the 10 year period between the constitutionally mandated Census.

In a document entitled: “Questions Planned for the 2010 Census and American Community Survey,” all of the questions that will be asked can be viewed online [pdf].

Since the sole and express purpose of the Census, as stated in the Constitution, is for apportioning direct taxes and representatives among the several States, the question that needs to be addressed is – are these additional questions a legitimate constitutional exercise of power or just another usurpation of power?

Constitutional Provisions for the Census

The provision for the Census is found in Article I, Section 2, Clause 3. Section 2 of the Fourteenth Amendment modified the provision concerning representatives because the Thirteenth Amendment banned slavery. The Census Clause states, in part:

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Number… The actual 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.”

A breakdown of this Clause shows:

• An enumeration of the population is the only power granted to Congress by this Clause.
• Apportioning direct taxes and representatives among the several States is the sole purpose of the power granted to Congress by this Clause.
• Congress’ power to make laws concerning this Census is restricted to prescribing the method for conducting the “actual enumeration.”

Note: The number of representatives allocated to a State through the Census also determines how many electors a State will have in a presidential election.

Congress Admits the Sole Purpose of the Census is Apportionment

In 1997, Congress, in Pub. L. 105-119, title II, Sec. 209, Nov. 26, 1997, 111 Stat. 2480, found that?

“(1) it is the constitutional duty of the Congress to ensure that the decennial enumeration of the population is conducted in a manner consistent with the Constitution and laws of the United States;

(2) the sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States…”

Congress, by its own admission, confirmed that the sole constitutional purpose of the Census is for apportioning representatives among the several States.

Note: The reader will note that Congress omitted any reference to the direct tax provision of the Census Clause in their finding. In my opinion, there could be several reasons for this omission but they are insignificant and do not detract from the importance of this admission.

The Census Bureau’s Statement on the Constitution

In a document entitled: “Census in the Constitution,” the Census Bureau states, in part:

“The U.S. Constitution empowers the Congress to carry out the census in ‘such manner as they shall by Law direct’ (Article I, Section 2).”

“In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.” (Bold added)

Article I, Section 2 grants Congress the power to enact laws for the sole purpose of prescribing the method for conducting the enumeration. It does not grant Congress the authority to expand this limited power under the guise of the Census.

The Census Bureau then comes to the conclusion that?“Questions beyond a simple count are Constitutional.”

“It is constitutional to include questions in the decennial census beyond those concerning a simple count of the number of people because, on numerous occasions, the courts have said the Constitution gives Congress the authority to collect statistics in the census. As early as 1870, the Supreme Court characterized as unquestionable the power of Congress to require both an enumeration and the collection of statistics in the census. The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution’s census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and “does not prohibit the gathering of other statistics, if ‘necessary and proper,’ for the intelligent exercise of other powers enumerated in the constitution, and in such case there could be no objection to acquiring this information through the same machinery by which the population is enumerated. United States v. Moriarity, 106 F. 886, 891 (S.D.N.Y.1901).” (Bold added)

“In 2000, another District Court agreed and found that it there is no constitutional limit on collecting additional data, when necessary for governance. That court also said responses to census questions are not a violation of a citizen’s right to privacy or speech. Morales v. Daley, 116 F. Supp. 2d 801, 809 and 816. (S.D. Tex. 2000). These decisions are consistent with the Supreme Court’s recent description of the census as the “linchpin of the federal statistical system … collecting data on the characteristics of individuals, households, and housing units throughout the country.” Dept. of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341 (1999).” (Bold added)

The reference to the Legal Tender Cases in 1870 is meaningless because the comment was dictum (a judge’s expression of opinion on a point other than the precise issue involved in determining the case). The statement by the Court was not the holding in the case.

A review of the syllabus of the 1999 Supreme Court case shows the issue before the Court was statistical sampling. The statement by the Census Bureau was not the holding of the case.

Their quotes from the 1901 and 2000 District Court cases do, however, reveal how the federal government is attempting to transform their additional information requests into a constitutional exercise of power.

Necessary and Proper

In the 1901 quote we find the words “necessary and proper.” These words appear in Article I, Section 8, Clause 18 of the Constitution. This provision grants Congress the power:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The 2000 quote contains the words—“when necessary for governance.” Under the guise of the Census and through the power to prescribe the mode for conducting the actual enumeration, the federal government is using this Clause to transform its information requests into a valid exercise of constitutional authority. The federal government is asserting that when it determines information is “necessary for governance,” the request is proper irrespective of whether the clause in question grants them a power or limits their power.

The Purpose of the Necessary and Proper Clause

The purpose and extent of this Clause was put in simple language by George Nichols in the Virginia Ratifying Convention of 1788:

“The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. It therefore, in this clause, tells how they shall be exercised. Does this give any new power? I say not. Suppose it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would that have increased their powers? If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all. This clause only enables them to carry into execution the powers given to them, but gives them no additional power.”

This clause is preceded by seventeen specific grants of power. If you read these clauses and insert the language of Article I, Section 8, Clause 18 into each clause, as suggested by Nichols, it is apparent that this Clause is a limitation on congressional power and does not enlarge any of their constitutional powers.

The Necessary and Proper Clause cannot apply to the Census Clause

There are several reasons why, in my opinion, the Necessary and Proper Clause cannot constitutionally apply to the Census, or its evil companion, the American Community Survey, which masquerades as part of the actual Census.

First, the Census Clause contains a self-executing provision and does not require another clause, like the Necessary and Proper Clause, to put the power into effect. The Census Clause, standing alone, grants Congress the power to enact the laws necessary for prescribing the mode of conducting the actual enumeration. Since a simple headcount is the only power granted to Congress by the Census Clause, any questions beyond the number of people in the household, even if this Clause did not contain a self-executing provision, would not be proper because they are not necessary for putting the power into effect.

Second, according to the Census Bureau, the additional questions being asked on the 2010 Census are for “socioeconomic” purposes. The 2010 Census will ask for the name, sex, age, date of birth, race, ethnicity, relationship and housing tenure of everyone in the household. If we remove the self-executing provision, noted above, and apply these questions through the Necessary and Proper Clause to the Census Clause, they are asserting that it is proper to ask for the name, sex, age, date of birth, race, ethnicity, relationship and housing tenure of everyone in the household because that information is necessary for conducting the headcount mandated by the Census Clause. This is an absurdity!

Third, there is no socioeconomic clause in the Constitution. Even if there were such a clause, it would be improper to use the Census Clause as the pretext to request information covered by another clause of the Constitution. Congress would have the power to request the information separate and apart from the Census.

Fourth, according to the Census Bureau, the American Community Survey “is part of the Decennial (10 year) Census Program.” The Constitution authorizes a 10-year Census count?not a 10-year Census program. Thus, it is not proper to use the Census Clause as the pretext for this so-called 10-year program.

Fifth, the American Community Survey, like the Census, asks for information that has absolutely nothing to do with apportioning direct taxes or representatives among the several States. The questions asked in the American Community Survey cover such topics as – fertility – grandparents as caregivers – health insurance coverage – plumbing facilities – income – place of work and journey to work – vehicles available – and so on and so forth. Thus, it is not proper to make the American Community Survey a component of the Census because the information obtained from the questions are not necessary for the headcount mandated by the Census Clause.

Sixth, none of the information obtained in a mid-decade survey can be used for apportioning direct taxes or representatives among the several States. Thus, it is not proper to make the American Community Survey a component of the Census because none of the information obtained from the questions can be used for the constitutional purposes of the Census.

Seventh, the Necessary and Proper Clause grants Congress the power to enact laws to put a specific power into effect. It does not grant Congress the power to use one clause as a pretext to extract information to put another clause into effect. This is exactly what they are attempting and I believe it is a blatant usurpation of power.

The Additional Questions Violate the Separation of Powers

In “Civil Disobedience and the Census,” I listed three constitutional principles in the first part of the article. The first and most important principle is the separation of power between the States and their federal government. Pursuant to this separation of power, the federal government was empowered to deal with foreign affairs and relations between the States while the States would concern themselves with domestic affairs.

The powers delegated to the federal government in the body of the Constitution come after this separation of power and are confined to the separation of power. In other words, the limited powers granted to the federal government only pertain to activities on one side of the separation of power fence not to activities on the other side of the fence.

John Taylor of Caroline, Tyranny Unmasked

The Additional Questions are just Another Usurpation of Power

As shown above, the federal government is usurping power to justify the additional questions being asked in the Census and American Community Survey. The federal government will stop at nothing to expand its power over the people of these United States. In a few weeks you will be presented with a choice—either acquiesce to their demands or refuse to go along with this usurpation of power. Before you make your choice, stand in front of a mirror and ask yourself a question—“if not now…when?”

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.