Constitutionality of State-Imposed Restrictions on Responses to Census Questions

• Court: Department of Justice Office of Legal Counsel
• Decided: February 22, 1980
• Status: Published

Opinion

Constitutionality of State-Imposed Restrictions on Responses to Census Questions

T h e S u p re m acy C lause o f th e C o n stitu tio n b ars a sta te from im posing restrictio n s on its resid en ts’ responses to q u estio n s c o n ta in e d in cen su s form .

S p ecific lim ited g ran t o f p o w e r in th e C o n stitu tio n d o es not p re c lu d e C o n g ress from e n a c tin g b ro a d e r cen su s legislation u n d e r th e N e ce ssa ry and P ro p e r C lause.

S ta tu to ry d eleg atio n to th e S e c re ta ry o f C o m m e rc e an d D ire c to r o f th e B ureau o f C ensus is not excessive, c o n sid e rin g lo n g h isto ry o f cen su s legislation and p ractice, and census fo rm s are w ith in th at deleg atio n .

February 22, 1980

M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL, D E PA R T M EN T O F COM M ERCE

This responds to the letter o f the Legal Adviser, Bureau of the Census, seeking the opinion o f this Office on the constitutionality o f a bill introduced into the Senate o f the State o f Arizona that would limit census responses by residents o f A rizona to their name, address, and age. It is our conclusion that such legislation, if enacted, would be unconstitutional under the Suprem acy Clause o f the Constitution (Art. VI, cl. 2) to the extent that it would purport to excuse residents of Arizona from answering questions in the census form that are author­ ized by federal law. T he prim ary authority for the census form for the 1980 census is 13 U.S.C. 141(a), pursuant to which: T he Secretary [of Com merce] shall, in the year 1980 and every 10 years thereafter, take a decennial census o f popu­ lation as o f the first day o f A pril o f such year, which date shall be known as the “decennial census date,” in such form and content as he may determ ine, including the use o f sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census inform ation as necessary. Section 141(g) defines the term “census o f population” as a “census o f population, housing, and m atters relating to population and housing.” 13 U.S.C. § 141(g). Section 5 o f title 13 gives the Secretary o f Com ­

416 merce general implementing authority,1 and the Joint Resolution o f June 16, 1976, 90 Stat. 688, imposes on the Secretary o f Com m erce special obligations to collect and publish statistics indicating the condi­ tions o f Americans o f Spanish origin or descent and to develop credit­ able estimates o f undercounting o f Am ericans of Spanish origin or descent in future censuses. Under A rticle VI, clause 2 o f the Constitution, state laws must yield to federal laws and regulations if these federal authorities are made “in pursuance” o f the Constitution. T he sponsors o f the A rizona legislation seem to suggest that the census legislation conflicts with the C onstitu­ tion o f the United States because A rticle I, § 2, clause 3 o f the C onstitu­ tion provides only for the enum eration o f the population, and, hence, that the Constitution does not permit the inclusion in the census o f any additional questions. T he notion that a specific limited grant in the Constitution precludes Congress from enacting broader statutes under other powers granted to it in the C onstitution was rejected by the Supreme C ourt m ore than a century ago w ith specific reference to the census legislation. In the Legal Tender Cases, 79 U.S. (12 W all.) 457, 536 (1871), which involved the constitutionality o f the statutes making paper money legal tender, the argum ent was made that because the Constitution specifically authorized Congress to coin money and regu­ late its value (Art. I, § 8, cl. 5), Congress did not have any other powers in the m onetary field. T he C ourt held that under the Necessary and Proper Clause (Art. I, § 8, cl. 18) Congress could enact legislation in aid o f one or m ore express pow ers “even if there is another express pow er given relating in part to the same subject but less extensive.” As an example for this proposition, the C ourt stated: T he Constitution orders an enum eration o f free persons in the different States every ten years. T he direction extends no further. Yet Congress has repeatedly directed an enu­ meration not only o f free persons in the States but o f free persons in the Territories, and not only an enum eration o f persons but the collection o f statistics respecting age, sex, and production. W ho questions the pow er to do this? 12 Wall, at 536. W hile this approval o f the broad scope o f census questions in the L egal Tender Cases was in the nature o f dictum , the C ircuit C ourt for the Southern D istrict o f N ew York in United States v. Moriarity, 106 F. 886, 891-92 (1901) discussed the pertinent constitutional considerations

1 This section provides: T h e Secretary (of C om m erce] shall prepare schedules, and shall determ ine the inquir­ ies, and the number, form, and subdivisions thereof, fo r th e statistics, surveys, and censuses provided for in this title. A ug. 31. 1954, ch. 1158, § 5 , 68 Stat. 1013.

417 at length, and little can be added to this classic analysis. T he court stated: Respecting the suggestion that the pow er o f congress is limited to a census o f the population, it should be noticed that at stated periods congress is directed to make an apportionm ent, and to take a census to furnish the neces­ sary information therefor, and that certain representation and taxation shall be related to that census. This does not prohibit the gathering o f other statistics, if “necessary and proper,” for the intelligent exercise o f other pow ers enu­ m erated in the constitution, and in such case there could be no objection to acquiring this information through the same m achinery by w hich the population is enum erated, especially as such course w ould favor econom y as well as the convenience o f the governm ent and the citizens. . . . It would be curious governm ental debility that should incapacitate the nation from directing its census enum era­ to r to ask an inhabitant concerning his business because for certain purposes he was only to be counted, and perhaps his gender ascertained. T he functions vested in the national governm ent authorize the obtainm ent o f the information dem anded by section 7 o f the census act, and the exercise o f the right befits an exalted and progressive sovereign power, enacting laws adapted to the needs of the vast and varied interests o f the people, after acquiring detailed know ledge thereof. . . . F or the national govern­ ment to know something, if not everything, beyond the fact that the population o f each state reaches a certain limit, is apparent, w hen it is considered w hat is the de­ pendence o f this population upon the intelligent action of the general governm ent. Sanitation, immigration, natural­ ization, the opening and developm ent o f the public domain; the laying o f taxes, duties, imposts, and excises, involving the adjustm ent o f duties for the purposes of revenue to the dom estic products o f every kind, and the taxation o f industries, . . . for these and similar purposes the governm ent needs each item o f information demanded by the census act, and such information, w hen obtained, requires the most careful study, to the end that the fulfill­ ment o f the governm ental function may be wise and useful. . . . A governm ent whose successful maintenance depends upon the education o f its citizens may not blindly legislate, but may exercise the right to proclaim its com ­ mands, after careful and full know ledge o f the business

418 life o f its inhabitants, in all its intricacies and activities. The dem urrer should be overruled. In United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962), cert, denied, 371 U.S. 962 (1963), also a case involving the validity of the questions contained in the census form, the court, per then Circuit Judge Thurgood Marshall, held: T he authority to gather reliable statistical data reason­ ably related to governmental purposes and functions is a necessity if modern governm ent is to legislate intelligently and effectively. United States v. Moriarity, 106 F. 886, 891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow, 309 F.2d 77 (2d Cir. 1962). The questions contained in the household questionnaire related to im portant federal con­ cerns, such as housing, labor, and health, and w ere not unduly broad or sweeping in their scope. The Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971), referred with approval to the holding in Rickenbacker concerning the scope o f the census questions. N or can it be said that 13 U.S.C. §§ 5 and 141(a) contain excessive delegations o f statutory power, or that the census form, as prom ul­ gated, goes beyond the scope o f the delegation. It is true that the delegations contained in 13 U.S.C. § 5 and in the last sentence o f 13 U.S.C. § 141(a) are broad. It should be remembered, how ever, that these statutes involve an area in which Congress has legislated since 1790, and which legislation and practice have crystallized into well- known standards that guide the discretion o f the Secretary o f Com ­ merce and the D irector o f the Bureau o f the Census. Fahey Mallonee, 332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 424- 25 (1944). Hence the district court properly held in United States v. Little, 321 F. Supp. 388, 391 (D.Del. 1971): Congress has in 13 U.S.C. §§5 and 141(a) described the job to be done by the Secretary o f Com m erce and delin­ eated the scope o f his authority, viz. to “take a census of population unemployment, and housing (including utilities and equipment).” 2 T he fact that there is a zone for the exercise o f discretion by the Secretary in framing the questions which will elicit the necessary statistical infor­ mation within the scope o f the census to be undertaken does not render the delegation invalid. Yakus v. United States, 321 U.S. 414, 42 4 ^2 5 , 64 S. Ct. 660, 88 L. Ed. 834 (1944). F urther, in the absence o f a clear showing (which has not been made in this case) that the Secretary’s

2 This quotation is based on the language o f 13 U.S.C. § 141(a) prior to its 1976 am endm ent.

419 exercise o f discretion was irrational, arbitrary or capri­ cious, his actions will not be disturbed. W e have examined the 1980 census form. T he questions asked appear to be either within the scope o f the information traditionally asked in census forms or within the mandate o f the Joint Resolution o f June 16, 1976. It is therefore our conclusion that 13 U.S.C. §§5 and 141(a), as implemented by the 1980 census form, are valid laws o f the United States made in pursuance o f the Constitution. M oreover, in view of the statistical nature o f census operations, it is im perative that the census questionnaire be answ ered uniformly throughout the United States. State legislation that purports to excuse the inhabitants o f a state from having to answ er some o f the questions contained in the census forms would constitute “an obstacle to the accom plishm ent and execution of the full purposes and objectives o f Congress.” Accordingly, the state legislation must give way to the federal law. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Jones v. R ath Packing, 430 U.S. 519, 526 (1977).

L arry A. H am m ond D eputy Assistant Attorney General Office o f Legal Counsel