The Census: A Constitutional Mandate

The US Constitution, Article I, Sections 2 and 9, directs that a census or enumeration be taken. Section 2 states, Representatives and direct Taxes shall be apportioned among the several States... according to their respective Numbers.... 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. The census does not violate the Fourth Amendment, as ruled by the District Court in Morales v. Daley, 116 F. Supp. 2d 801, 820 (S.D. Tex. 2000). The US Constitution mandates that an apportionment of representatives among the states must be carried out every 10 years.

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The Census Act and Administrative Procedure Act

The Census Act of 1790 was the original act that provided for the first-ever census in the United States. The act allowed for the administration of the first decennial census, which has been carried out every 10 years since then. The Census Act established the concept of "usual residence", defined as the place a person lives and sleeps most of the time. This concept guides the Census Bureau's decision about whom to count.

In 1902, the Census Office was made a permanent agency, and in 1954, legislation was passed that combined the existing laws governing the Census Bureau's statistical programs and codified them in Title 13 of the U.S. Code. Title 13 provides authority for the work of the Census Bureau and strong protection for the information it collects from individuals and businesses. It mandates that private information is never published and that it is against the law to disclose or publish any private information that identifies an individual or business.

The Administrative Procedure Act (APA) was enacted to regulate, standardize, and oversee federal agencies, providing constitutional safeguards to prevent unchecked authority in a particular area of government, which would violate the separation of powers. The APA creates a framework for regulating agencies and their roles, requiring agencies to keep the public informed of their organization, procedures, and rules, and providing for public participation in the rulemaking process.

The APA organizes federal administrative action into two parts: adjudication and rulemaking. Adjudication can be further broken down into formal and informal adjudication. Formal adjudication involves a trial-like hearing with witness testimony, a written record, and a final decision, while informal adjudication involves agency decisions made through inspections, conferences, and negotiations. Rulemaking results in agency rules and regulations, and while many agencies provided due process through hearings and investigations, there was a need for well-defined uniform standards for agency adjudication and rulemaking procedures.

The Enumeration Clause

While the Enumeration Clause grants Congress significant authority in conducting the census, the focus remains on achieving an accurate count. The interpretation of the clause has evolved over time, incorporating demographic questions and adapting to the changing realities of the nation's population. The Enumeration Clause continues to shape the census process and the collection of critical demographic data in the United States.

The Fourth Amendment

The census itself is mandated by Article I, Section 2 of the US Constitution, which requires a count of the entire population to be undertaken for the purpose of legislative representation. This is known as the Enumeration Clause. The Enumeration Clause has been interpreted to mean that every person living in the US should be counted, regardless of citizenship status. This interpretation has been a source of controversy in recent years, with some arguing that including non-citizens in the count violates the Constitution's equal representation clause.

The history of the census in the US is complex and tied to the country's struggle with slavery and racial equality. Originally, the Constitution included a clause stating that each slave was to be counted as three-fifths of a person, giving slave-holding states an advantage in the House of Representatives. This clause was deleted by the Fourteenth Amendment in 1868, which guaranteed legal equality.

Today, the census is conducted every 10 years, and its primary legal purpose is the apportionment of representatives among the states based on population counts. This process is known as apportionment and is carried out by dividing the 435 memberships in the US House of Representatives among the 50 states based on census data.

In recent years, there has been controversy over the inclusion of a citizenship question on the census questionnaire. Some argue that asking about citizenship status would undermine the accuracy of the census and violate the Constitution's equal representation clause. The Supreme Court has yet to rule definitively on this issue, but lower courts have generally upheld the constitutionality of the census, including the 2000 Census questions, which were challenged but ultimately found not to violate the Fourth Amendment or other constitutional provisions.

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Article 1, Section 2 of the Constitution

Article 1, Section 2 of the U.S. Constitution, also known as the Enumeration Clause, specifies that a count of the entire population is to be undertaken for the purpose of legislative representation. This mandate has been interpreted to mean that every resident of the United States, including non-citizens, should be counted. The census, which takes place every 10 years, is designed to count every person living in the country, although there is always a degree of statistical undercounting.

The Enumeration Clause gives Congress the authority to conduct the census and collect statistics beyond a simple headcount. This has been affirmed by the Supreme Court, which has recognised the power of Congress to require both an enumeration and the collection of additional data. The specific questions to be included in the census are determined by the Census Bureau, which must notify Congress of the general subjects to be addressed three years in advance and the actual questions two years in advance.

The data collected by the census is used to determine the number of seats each state has in the House of Representatives and to distribute federal funds to local communities. It also helps communities make decisions about infrastructure and informs government policies. The first census was conducted in 1790, and it has been repeated every 10 years since then, making the United States the first country ever to legally require a regular enumeration of its inhabitants.

The Census Act governs how the decennial count is conducted, and there have been debates and legal challenges over the years regarding the specific questions included in the census and the interpretation of the Enumeration Clause. For example, there was controversy over the Trump Administration's proposal to add a question about citizenship to the 2020 census, with some arguing that it violated the Enumeration Clause. The Supreme Court has generally upheld the flexibility of the census, ruling that responses to census questions do not violate citizens' rights to privacy or speech.

The Census Bureau's authority

The authority of the Census Bureau is derived from Article I, Section 2 of the US Constitution, which mandates a count of the entire population for the purpose of legislative representation. This constitutional authority has been interpreted by the courts to give the Census Bureau broad powers to collect demographic data beyond a simple headcount. For example, in 1870, the Supreme Court affirmed the power of Congress to require both an enumeration and the collection of statistics in the census. Similarly, in 1901, a District Court ruled that the Constitution's census clause allows for the gathering of "other statistics" necessary for the intelligent exercise of constitutional powers.

In addition to its constitutional and statutory authority, the Census Bureau also has significant expertise and technical capabilities that contribute to its authority in census-taking. The bureau has developed sophisticated techniques to obtain an accurate count of the population, recognising that there will always be some level of undercounting. This technical expertise, combined with its legal authority, positions the Census Bureau as the primary authority on census-taking in the United States.

Despite these challenges and debates, the Census Bureau retains its authority as the government body responsible for conducting the census. The bureau's mandate is to count every resident in the United States, including non-citizens, and to use the data collected to inform legislative representation and federal funding distribution. This critical role in shaping policy and resource allocation underscores the significance of the Census Bureau's authority and the impact it has on communities across the nation.

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