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If It Ain't Broke, "Fix" It By: Marion Edwyn Harrison, Esq.
FrontPageMagazine.com | Tuesday, March 03, 2009

There are many cries for greater transparency in the functioning of the federal government. One subject which has received relatively sparse media and political attention but which raises grounds for suspicion (if perhaps short of “reeking” with suspicion) is conduct of the 2010 Decennial Census.

Why is the Census important? From the point of view of representative democracy it is important because apportionment of seats in the House of Representatives of the United States begins with the first November election following the Census (this year, November 2012) and continues for ten years until the results of the following Census confirm or, as usual, somewhat modify, it. Less dramatically and less obviously, the Census is important because all kinds of Congressional appropriations - earmarks and otherwise - are measured in whole or in part by aspects of the Census population figures and considerable commercial marketing is geared to the population totals and distribution the Census finds.

What causes suspicion? First, President Barack H. Obama nominated Senator Judd Gregg (R-NH) to be Secretary of Commerce. The full reason for the Senator’s self-withdrawal is unclear. However, there lurks the likelihood of a danger which Senator Gregg wisely would want to avoid.

By statutory law there is the Census Bureau, located within the Department of Commerce. While a few critics over the years have questioned the thoroughness of the Census Bureau, apparently none convincingly has questioned its objectivity and even the questioning as to thoroughness has not been especially convincing. With an unusually transient population, momentous millions of unlawful immigrants and no small number of people seeking to avoid any activity that might identify them to a tax-collector or other governmental functionary, conduct of the Census is no small or amateurish task.

The rumor, almost rising to the level of probability, is that the White House plans to attempt to control management of the 2010 Census. This commentary does not offer legal opinions.  However, it is clear that such activity well may be unlawful and surely would be unwise.

The Constitution is clear.  Article I, Section 2, Clause 3 pertinently states that “Representatives [in Congress] shall be apportioned among the several States according to [the States’] Numbers….” It further requires that “[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 [Congress] shall by Law direct.” Section 2 of Amendment XIV requires that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in Each, excluding Indians not taxed.” We here can skip the details of statutory implementation.   Suffice it to say that the Census Act, 13 USC Section 1 et seq, delegates, or confers upon, the Secretary of Commerce, not some pol in or about the White House, the sole task of supervising conduct of the Census.  

A downside, and patently unlawful, possibility is that some kind of sampling may be attempted in lieu of straight, old-fashioned counting.

The Supreme Court of the United States nullified a prior attempt ten years ago. Department of Commerce v United States House of Representatives, 525 US 316 (January 25, 1999). The decision is lengthy, with a number of opinions. A simplified summary is that the Chief Justice and five Associate Justices, so to speak in lay terminology, required what the Constitution and the statute require.  Three dissented to parts of the Sandra Day O’Connor Opinion of the Court - Justice John Paul Stevens, David H. Souter and Ruth Bader Ginsburg as to Part I, Justices Stevens and Stephen F. Breyer as to Part II.

That the Supreme Court already has nullified an attempt to circumvent the Constitution and the statute only enhances the suspicion: What is the Obama administration up to and why?  Although this writer can’t think of one, perhaps there is a convincing, plausible, working and lawful reason. Absent full disclosure suspicion carries the day.   

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.

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