The Twenty-Second Decennial Census

• Court: Department of Justice Office of Legal Counsel
• Decided: October 7, 1994
• Status: Published

Opinion

The Twenty-Second Decennial Census

N either the E num eration C lause o f the C onstitution nor the C ensus A ct precludes the Bureau o f the C ensus from statistically adjusting “headcounts” in the decennial census for the year 2000 or con­ d u cting the n o n-response follow -up on a sam ple basis.

The provision in the C ensus A ct prohibiting sam pling fo r purposes o f apportionm ent o f the H ouse of R epresentatives does not preclude reliance upon statistical adjustm ents that w ould im prove the ac­ cu racy o f “head co u n t” data

October 7, 1994

M e m o r a n d u m f o r t h e S o l ic it o r G e n e r a l

You have asked, on behalf of the Department of Commerce, for our advice on the questions w hether the use of statistically adjusted census figures would be con­ sistent with the C onstitution, U.S. Const, art. I, § 2, cl. 3, and with the Census Act, 13 U.S.C. §§ 1-307. The questions arise because the traditional method o f taking the census fails to count a significant portion of the population, and in particular disproportionately undercounts identifiable racial and ethnic minorities. In light of these problem s, the Department o f Commerce is considering the use of statistical adjustm ents in the twenty-second decennial census (for the year 2000) before the final count is com pleted in order to improve the accuracy of that census. The De­ partm ent of Com m erce is also considering the use of sampling to conduct the fol­ low-up on households that did not respond to its initial mailing o f questionnaires. A ccordingly, it desires to know w hether such procedures would be lawful. We conclude that both o f the proposed changes in conducting the census would be lawful.*

I.

The C onstitution “provides the basis for the decennial censuses, but does not specify the details o f their administration.” Seventeenth D ecennial Census , 41 Op. A tt’y Gen. 31, 32 (1949). Instead, the Constitution vests in Congress the power to conduct an “actual Enumeration . . . in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. Congress’s pow er has in turn been vested in the Bu­ reau of the Census (the “Bureau”), a component o f the D epartment of Commerce. See 13 U.S.C. § 2.

" E d ito r’s N ote: S u b se q u en t to the date o f this opinion, the Suprem e C ourt held that the C ensus A ct pro­ h ibits the p ro p o sed uses o f statistical sam p lin g in calcu latin g population for congressional apportionm ent p urposes. S e e D ep a rtm en t o f Com m erce v U nited S ta tes H o u se o f R epresentatives, 119 S C t 765, 779 (1999). T h e C o u rt did not reach the constitutional question. Id.

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The primary purpose of the decennial census' is to provide the basis for Congress’s apportionment of seats in the House of Representatives am ong the States.2 The census also serves several other legally significant objectives. His­ torically, the decennial census has been “an enumeration not only of free persons in the States but of free persons in the Territories, and not only an enumeration of persons but the collection of statistics respecting age, sex, and production.” L egal Tender Cases, 79 U.S. (12 W all.) 457, 536 (1870). “The census today serves an important function in the allocation of federal grants to states based on population. In addition, the census also provides important data for Congress and ultimately for the private sector.” B aldrige v. Shapiro, 455 U.S. 345, 353 (1982); see gen erally Note, D em ography an d D istrust: Constitutional Issues o f the F ederal Census, 94 Harv. L. Rev. 841, 844-45 (1981). The traditional method for conducting the decennial census “is a headcount rather than an estimation based on sampling.” Tucker v. U nited States D e p ’t o f Com merce, 958 F.2d 1411, 1412 (7th Cir.), cert, den ied, 506 U.S. 953 (1992).3 The term “headcount” is somewhat misleading, however. “The census . . . is not a headcount in which each and every person residing in the United States on a given date is counted by the Census Bureau. Rather, it is a survey of the population that through the responses of one member of each household attempts to enumerate the entire population.” C arey v. Klutznick, 508 F. Supp. 420, 426 (S.D.N.Y. 1980), r e v ’d, 653 F.2d 732 (2d Cir. 1981), cert, denied, 455 U.S. 999 (1982). In the 1990 census, the Bureau’s tabulation had four phases. First, relying on lists compiled by commercial sources and its own fieldwork, the Bureau derived a mailing list of as many households as it could locate. Second was the “mail out/mail back” phase, in which the Bureau mailed out questionnaires to each household on its list, and requested their return by April 1, 1990. (The return rate was 63%.) The third phase was a follow-up in which the Bureau sent out another round of mailings. The fourth phase comprised efforts by census enumerators, in person, to contact non-responding households (or other reliable sources) to obtain the needed information. Following that, the Bureau undertook “coverage im­ provement programs” designed to reach non-respondents in other ways, including rechecks of all vacant or uninhabitable housing units, recanvassing of selected blocks, an advertising campaign, checks of parolees and probationers, and a local

1 T here is also a m id-decade census. See 13 U S.C . § 141(d) 2 T he apportionm ent o f R epresentatives am ong the Stales in turn affects the allocation o f Electoral C ol­ lege votes to the Stales. See U.S C onst art. II, § I, cl 2. 1 T he first statute authorizing a census, "A n A ct providing for the enum eration o f the Inhabitants o f the U nited S tates" (M ar I, 1790), declared that “the m arshals o f the several districts o f the U nited S tates” were “ authorized and required to cause the num ber o f the inhabitants w ithin th eir respective districts lo be taken,” om itting Indians not taxed. 4 N a tio n a l Stale P a p ers o f ihe U n ited States, 1789-1817, at I (Eileen Daney C arzo ed , 1985). It further placed on “each and every person m ore than sixteen years o f age” the obligation to provide the census-taker “a true account, if required, to the b est o f his or her know ledge, of all and every person belonging to [the resp o n d en t's] family ” Id at 3.

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governm ent review. See C ity o f N ew York v. U nited States D e p ’t o f Com m erce, 34 F.3d 1114 (2d Cir. 1994), r e v ’d, 517 U.S. 1 (1 9 9 6 )4 Like earlier censuses, the 1990 census concededly did not count the entire population of the United States.5 G iven the inherent difficulties of census-taking and the existence o f financial and tim e constraints, some degree o f inaccuracy in the census count is perhaps inevitable. The Bureau itself believes that “every cen­ sus has necessarily involved an undercount,” Young v. Klutznick, 497 F. Supp. 1318, 1327 (E.D. M ich. 1980), r e v ’d, 652 F.2d 617 (6th Cir. 1981), cert, denied, 455 U.S. 939 (1982), and the courts agree that “a perfectly accurate count of up­ wards of 250 m illion people” is sim ply not “feasible.” C ity o f D etroit v. Franklin, 4 F.3d at 1377.6 Far more troubling than the bare existence of an undercount is the fact that the 1990 census perpetuated a pattern, the existence of which has been recognized since 1940, o f differentially undercounting African Americans.7 The 1990 census also differentially undercounted Hispanics: the estimated undercount for that group was 5.2% , as against an estim ated undercount of 2.1% for the popu­ lation at large.8 The Bureau “specifically acknow ledge^] an undercount in the 1990 census ranging from 1.7 percent of whites to 5.2 percent of Hispanics.”9 Despite that acknowledgement, the Secretary of Commerce declined in 1991 to adjust the 1990 census figures to correct for the undercounts.10 The Secretary’s

4 T h e B u re a u ’s effo rts to o b tain as accurate a count as po ssib le have been found to be ‘‘extraordinary A ccording to one co u rt, the 1990 census is sa id to be one o f th e best ever taken in this country because d e ­ spite o u r larg e po p u latio n , approxim ately 9 8 percent o f the population w as counted.” C itx o f D etroit v. F ranklin, 4 F 3d 1367, 1376 (6 th C ir. 1993), c e r t denied, 5 1 0 U .S 1176(1994). 5 T h e first c en su s in 1790 co u n ted over 3 ,8 9 0 ,0 0 0 people, but fell short o f the expected 4,000,000 figure G eorge W ash in g to n th o u g h t it “certain’’ that “ o u r rea l num bers will exceed, greatly, the official returns of them ,’* and T h o m as Jefferso n considered the uncounted p o p u latio n “very g reat.” See B a ld n g e v Shapiro, 455 U .S at 353 n 8. 6 S e e a lso K a rc h e r v D a g g ett, 462 U S 7 2 5 , 732 (1983) ( “ the census data are not perfect, and the well- know n restlessn ess o f the A m erican people m e a n s that p o p u latio n counts fo r particular localities are outdated long b efo re they are c o m p leted "); id at 7 7 2 (W hite, J , d issen tin g) (“the census . . cannot be perfect”), G affney v C u m m in g s, 412 U .S. 735, 745 (1 9 7 3 ) (decennial census figures “ may be as accurate as such im m ense u n d ertak in g s can be, but they are in h e re n tly less th an absolutely accurate ”). 7 In the 1990 cen su s, “ B lacks w ere und erco u n ted by 4 8 % , H ispanics by 5 2% , A sian-Pacific Islanders by 3.1% , A m erican Indians by 5.0% , and n on-B lacks by 1.7% ” S en ate o f C alifornia v M osbacher, 968 F 2 d 974, 975 (9 th C ir 1992) “In 1940, 10 3 p e rc en t o f blacks w ere missed, com pared to 5 1 percent o f w hites, a gap o f 5.2 p ercen tag e points. In 1980, 6 2 p e rc en t o f blacks w ere missed, com pared to I 3 percent o f whites, for a sim ila r disparity o f 4 9 percentage p o in ts.” Sam uel Issach aro ff & A llan J Lichtm an, The C ensus Un­ de rc o u n t a n d M in o rity R epresentation T h e C o n stitu tio n a l O bligation o f the States to G uarantee E qual R ep resen ta tio n , 13 R ev. L ing. 1, 8 (1993) S e e also G ajfnev v. C um m ings, 412 U S at 745 n.10 8 S e e S tephen E Fienberg, The New York C ity C ensus A d ju stm ent T n a l: W itness f o r the P laintiffs, 34 J u n m e tric s J. 65, 70-71 (1993) 9 Tucker, 958 F.2d at 1413; s e e generally D e cisio n o f th e S ecretary o f C om m erce on W hether a S ta tisti­ c a l A d ju stm e n t o f the 1990 C en su s o f P o p u la tio n a n d H o u sin g Should B e M ade f o r C overage D eficiencies R esu ltin g in an O verco u n t o r U ndercount o f th e P opulation, 5 6 Fed Reg. 33,582 (1991) 10 T h e S e c re ta ry ’s reaso n in g , as recapitulated by the S ev en th Circuit, w as that w h ile a d ju stm en t by the b e st method av ailab le w ould increase the c ensus totals, it w ould not sig ­ n ifican tly alter the apportionm ent o f s e a ts in the H ouse o f R epresentatives am ong the slates, in part becau se there is overcounting as w ell as und erco u n tin g A fter the dust settled, Illin o is’s re p ­ resen tatio n w ould be unchanged, a lth o u g h C alifo rn ia an d A rizona w ould pick up a few seats at the ex p en se o f P ennsylvania and W isco n sin Federal grant allocations m ight not be m uch af-

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decision not to make the adjustment has been the subject of litigation in three cir­ cuits, with conflicting results. Com pare Tucker (plaintiffs had no judicially en­ forceable rights) and City o f D etroit (same) with City o f N ew York (remanding with instruction that refusal to adjust could not be upheld unless shown to be necessary to a legitimate governmental interest). The Bureau is currently considering whether to adjust the “raw count” o f the next decennial census for the year 2000. Sampling was used in connection with the 1990 census to carry out the “Post-Enumeration Survey” (the “PES”) that m eas­ ured the undercount for that year. See C ity o f N ew York, 34 F.3d at 1117; David A. Freedman, A djusting the Census o f 1990, 34 Jurimetrics J. 99, 102-03 (1993). In that census, the Bureau tested the accuracy of the count by a PES o f some 174,000 households and then matching the questionnaires for households in the PES against the same households in the census (including both mail-backs and non-response follow-ups). The matching process provided the Bureau with data to develop adjusting factors, or “multipliers,” to capture the estimated under- or over­ count for some 1,392 demographic subgroups. The application of the multipliers to the enumeration data for the subgroups produced the conclusion that 1.6% of the total population had not been counted in the census. For the 2000 census, the Bu­ reau is considering the use of a sample-based adjustment as in 1990, except that it would complete the adjustment before its deadline for reporting State totals to the President. The Bureau is also considering whether to conduct the non-response follow-up on a sample basis, rather than sending enumerators to each non-responding house­ hold. Specifically, it is proposing to contact, by telephone or in person, between 25% and 50% of the households that failed to return the census questionnaire. The Bureau would then extrapolate from the results of this sample to estimate the whole non-respondent population. The Bureau believes that the use of this procedure would save it between $300 and $600 million. At the same time, it advises us that the procedure would also produce greater accuracy than was achieved in the 1990 census. In the past, the Bureau took the position that it would be legally precluded from adjusting the census for apportionment purposes. See Census U ndercount A d ju st­ ment: B asis f o r D ecision, 45 Fed. Reg. 69,366, 69,371-73 (1980). This claim was based on both constitutional and statutory grounds. First, the Bureau has argued that

fected eith er M oreover, any attem pt to m ake a statistical adjustm ent to the m echanical headcount w ould, by injecting judgm ental factors — and ones o f considerable technical c o m ­ plexity to boot, — open the census process to charges o f political m anipulation A nd w hile a statistical adjustm ent for the undercount w ould undoubtedly im prove the accuracy o f the n a tio n ­ wide c en su s total, there is no consensus am ong statisticians and dem ographers that it w ould m ake the state and district census totals — the level at w hich the adjustm ent w ould actually af­ fect representation and funding — m ore accurate Tucker, 958 F .2d at 1413 (citations o m itted); see also C ttv o f N ew York., 34 F 3d at 1122-23; S e n a te o f C ali­ fo rn ia , 968 F 2d at 975

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interpretation o f the phrase “actual enum eration” in Article 1, Sec­ tion 2, Clause 3 must begin with the words themselves, and that the term s “census” and “enumeration” mean nothing more or less than a headcount. [It] say[s] that the use of the m odifier “actual” with the word “enum eration” can only reinforce the conclusion that the fram ers o f the Constitution intended a headcount, and nothing but a headcount. [It] further reifies] upon the fact that, with the exception o f the 1970 census when imputations were performed which added approxim ately 4.9 million people, the census has been, since 1790, an actual headcount and nothing more.

Young v. K lutznick, 4 91 F. Supp. at 1332. The Bureau has also argued in the past that “even if the Constitution does not prohibit an adjustment for apportionment of Representatives, C ongress has by statute prohibited such an adjustment.” Id. at 1334. W e consider these issues in turn.

II.

The Enum eration Clause of the Constitution reads in relevant part as follows:

R epresentatives . . . shall be apportioned among the several States . . . according to their respective N um bers . . . . The actual Enu­ meration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term o f ten Years, in such M anner as they shall by Law direct.

U.S. Const, art. I, § 2, cl. 3; see a lso U.S. Const, amend. XIV, § 2 (“R epresentatives shall be apportioned among the several States according to their respective numbers, counting the w hole num ber o f persons in each State . . . . ”). The Enum eration Clause was one facet of the “Great Com prom ise” at the Con­ stitutional Convention, which provided for equal representation of the States in a Senate, and representation of “the People of the several States” in a House of Rep­ resentatives. U.S. Const, art. I, § 2, cl. 1; see gen era lly W esberry v. Sanders, 376 U.S. 1, 10-16 (1964); D em ography an d D istrust, 94 Harv. L. Rev. at 846. Be­ cause the Fram ers “intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State’s inhabitants . . ..[t]he C onstitution embodied Edm und R andolph’s proposal for a periodic cen­ sus to ensure ‘fair representation o f the people’” W esberry, 376 U.S. at 13-14 (citations omitted). Before the first decennial census in 1790, no modern Nation had undertaken a census (although all the States of the United States, with some exceptions in the South, had done so). See Hyman Alterman, Counting P eople: The Census in

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H istory 164 (1969). Thus, when the Framers were apportioning seats in the first House of Representatives, their decisions were the outcome of “conjecture and political compromise: [they] apparently assigned some of the smaller States a number of Representatives not justified by the size of their populations.” M em o­ randum for Wendell L. W ilkie II, General Counsel, Department o f Commerce, from Stuart M. Gerson, Assistant Attorney General, Civil Division at 4 (July 9, 1991) (the “Gerson M em orandum ”).11 The C onstitution’s reference to an “actual Enumeration” must be explained by reference to the Fram ers’ ignorance of the exact size of the population and its distribution among the States: “[w]hen the Constitution speaks of actual enumeration, it speaks o f that as opposed to esti­ m ates.’’ Young v. Klutznick, 497 F. Supp. at 1332 (emphasis added). A cco rd Memorandum for Alice Daniel, Assistant Attorney General, Civil Division, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: P ending Litigation Concerning S tatistical A djustm ent o f 1980 D ecennial Census P opulation D ata at 2 (Sept. 25, 1980) (the “Harmon M em orandum ”) (“the phrase [‘actual Enum eration’] was chosen because an accurate population count was es­ sential once the Convention decided, in the Great Compromise, that representation in the House would be apportioned on the basis of population.”). The proposal for a periodic enumeration of the population originated, as noted above, with Edmund Randolph, as an incident to the Great Compromise. On July 10, Randolph moved a proposal calling for Congress “to cause a census, and esti­ mate to be taken within one year after its first meeting; and every [left blank] years thereafter — and that the L egislature] arrange the Representation accordingly.” James Madison, N otes o f D ebates in the F ederal Convention o f 1 7 8 7 , at 265 (Adrienne Koch ed., 1966) (bracketed material added). George M ason spoke in favor of the motion on the next day, declaring that “[h]e did not object to the con­ jectural ratio which was to prevail in the outset; but considered a Revision from time to time according to some permanent & precise standard as essential to [the] fair representation required in the [first] branch.” Id. at 266. Later in the debate, Randolph repeated M ason’s point that “the ratio fix[ed] for the [first] meeting [of Congress] was a mere conjecture.” Id. at 267. On August 21, Madison repeated that “[t]he last apportionment o f Cong[ress], on which the number o f Representa­ tives was founded, was conjectural and meant only as a temporary rule till a Cen­ sus should be established.” Id. at 497. Madison also explained in The F ederalist that the provision in Article I, Section 2, Clause 3 of the Constitution for a House o f Representatives that would consist of sixty-five members in the First Congress was merely “a temporary regulation,” to be revised when the findings o f the census

11 S ee also H ym an A lterm an, C ounting P eople at 187-88 ("T he C onvention had available to it estim ates o f the w hite and slave populations in the v arious stales M ainly on the basis o f these estim ates the C o n v en ­ tion decided how m any representatives each state should have until the first census w as ta k e n .”).

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of 1790 becam e known. The F ederalist No. 55, at 343 (James M adison) (Clinton R ossiter ed., 1961).12 These discussions make it clear that, in requiring an “ actual ” enumeration, the Framers m eant a set o f figures that was not a m atter of conjecture and compromise, such as the figures they had themselves provisionally assumed. An “actual” enu­ meration would instead be based, as George M ason put it, on “some permanent & precise standard.” There is no indication that the Framers insisted that Congress adopt a “headcount” as the sole m ethod for carrying out the enumeration, even if later refinem ents in the metric of populations would produce more accurate meas­ ures. Furtherm ore, the Fram ers left it to Congress to conduct the enumeration “in such M anner as they shall by Law direct.” U.S. Const, art. I, § 2, cl. 3. That ex­ plicit delegation im plies that the Fram ers were w illing to allow for innovation in the choice o f m easuring techniques; and, not surprisingly, “the Census Bureau’s unbroken historical practice really has been to use modern knowledge and scien­ tific techniques to get further and further away from simple headcounting.” Young v. K lutznick, 497 F. Supp. at 1333.13 “The result, and not the method, is the im­ portant lesson of the historical experience.” Harm on Memorandum at 2. In addition, Article I, Section 2, Clause 3 o f the Constitution was amended by section 2 o f the Fourteenth Amendment. Section 2 declares that “Representatives shall be apportioned am ong the several States according to their respective num­ bers, counting the whole number o f persons in each State, excluding Indians not taxed.” U.S. Const, amend. XIV, § 2. Further, section 5 confers on Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Id. § 5. C ongress’s powers under section 5 have been “equated . . . with the broad powers expressed in the Necessary and Proper Clause, U.S. Const, art. I, § 8, cl. 18. ‘Correctly viewed, § 5 is a positive grant o f legislative power authorizing Congress to exercise its discretion in determ ining whether and what legislation is needed to secure the guarantees o f the Fourteenth Am endm ent.’” Fullilove v. K lutznick, 448 U.S. 448, 476 (1980) (plurality opinion) (quoting K atzenbach v. M organ , 384 U.S. 641, 651 (1966)). It follows that Congress has broad power to determ ine how to carry out the apportionm ent called for by section 2, and to con­ duct the enum eration on which that apportionm ent is based. See M assachusetts v. M osbach er, 785 F. Supp. 230, 253 (D. M ass.) (three-judge court) (“the exercise of Section 5 pow ers here in defining the m ethodology for reapportionment falls

12 U S C o n st art. I, § 2, cl 3 provided th a t “ until such e n u m eration shall be m ade,’' the Slates were to have p red eterm in ed n um bers o f R epresentatives: three fo r N ew H am pshire, eight for M assachusetts, one for R hode Island, five for C onnecticut, six for N ew York, four for N ew Jersey, eight for Pennsylvania, one for D elaw are, six fo r M aryland, ten for Virginia, five for N orth C aro lina, five for South C arolina and three for G eorgia, for a total o f sixty-five n "In stead o f head co u n tin g people, [the B u reau ] uses the m ail-out form and the m ail-out/m ail-back for­ mat to en u m e ra te m ost persons today ” Id S e e also C ity o f D etro it, 4 F 3d at 1377 ( ‘k[t]he C ensus Bureau has not u n d ertak en a d o o r-to -d o o r cam paign sin ce the 1960 census and plaintiffs have presented no evidence indicating th at such an effort w ould lead to any more accurate re su lts” )

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squarely within the settled recognition of the competence of Congress as a legisla­ tive fact finder”), r e v ’d sub nom. Franklin v. M assachusetts, 505 U.S. 788 (1992). It would be strange indeed to suppose that Congress — or its delegate, the Bureau — lacked the power to authorize a statistical adjustment that would correct the persistent and acknowledged undercounting of African Americans in that enu­ meration, particularly in view of the fact that the Fourteenth Amendment was pri­ marily intended for the protection of that class. See S trauder v. W est Virginia, 100 U.S. 303, 306(1880). Finally, constitutional plaintiffs injured by the decision to use adjusted census data for apportionment might argue that so sharp a departure from the B ureau’s longstanding practices was unjustified.14 See Senate o f California, 968 F.2d at 978 (“the method by which the Secretary is to do the count . . . is generally expected to be a head count”); see a lso Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 34 (if the Director “has consistently followed the practice in question over a long pe­ riod of time, and it has not been challenged in the Congress or elsewhere . . . his interpretation ought not to be disturbed except for very weighty reasons”) .15 It could be contended that the use of unadjusted “headcounts” almost invariably since the first census of 1790 represents a practical construction of the Enumeration Clause which the Executive, at least absent weighty reasons, may not reverse. See, e.g., Smiley v. Holm, 285 U.S. 355, 369 (1932) (“long and continuous interpreta­ tion in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case o f constitutional provisions gov­ erning the exercise of political rights . . . .”); The P ocket Veto Case, 279 U .S. 655, 688-90 (1929). W e believe, however, that the change in the Bureau’s policy would be upheld against an attack of this nature if there were adequate proof that statisti­ cal adjustments would be feasible and would generate more accurate counts o f both the total population and of minorities. Thus, in Franklin v. M assachusetts, the Court upheld the Bureau’s changed policy of allocating overseas government personnel to the several states for resi­ dence purposes for the 1990 census. The Court stated that

14 The Couri has held thal ' ‘[c]onslitulional challenges lo apportionm ent are justiciable " F ranklin v M a n a c h u selts, 505 U S at 801 W hether constitutional plaintiffs ‘‘have standing lo challenge the accuracy o f the data " tabulated by the B ureau, and 'w h eth er the injury is redressable by the relief sought," id at 802, are o f course separate issues. W e shall assum e here thal those conditions m ight be met. The availability of review under the A dm inistrative Procedure Act (the “A P A ") o f the use o f adjusted data for reapportionm ent seem s doubtful after Franklin, how ever T he APA perm its review only o f certain "final" agency actions under 5 U.S C § 704 In this case, as in Franklin, it w ould appear that "the final action com plained o f is that of the President, and the President is not an agency w ithin the m eaning o f the Act " 505 U S at 7 9 6 W e note that F ra n klin 's ruling on the APA represented the view o f a bare m ajority o f five Justices (including Justice W hite), and m ight not be extended by the present C ourt 15 For analogous reasons, if A PA review w ere available, a change in policy lo allow statistical adjustm ents m ight be attacked as arbitrary, capricious o r abusive o f discretion under 5 U S C § 706(2)(A ) S e e M in o r Vehicle MJrs A s s ’n v. Stale Farm M m . A u to Ins Co , 463 U S 29, 42-45 (1983) (presum ption in favor of settled agency practice) W e believe thal the proposed policy change w ould survive review under that stan ­ dard

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the Secretary of Commerce made a judgm ent, consonant with, though not dictated by, the text and history of the Constitution, that m any federal employees tem porarily stationed overseas had retained their ties to the States and could and should be counted toward their S tates’ representation in C ongress . . . . The Secretary’s judgm ent does not ham per the underlying constitutional goal of equal repre­ sentation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually prom otes equality.

505 U.S. at 806. In the present case, the validity o f the policy change would turn largely on the evidentiary showing that the use o f statistical adjustments will produce a more ac­ curate count of the population than the bare “headcount” data alone. It appears to us that the factual predicate for the change to adjusted figures is adequate. As the Second Circuit pointed out, the district court in C ity o f N ew York found “that the PES-indicated statistical adjustment was feasible; that for most purposes and for m ost of the population that adjustment would result in a more accurate count than the original census; and that the adjustm ent would lessen the disproportionate un­ dercounting of m inorities.” City o f N ew York , 34 F.3d at 1129. Assuming that sim ilar findings would hold true for the next decennial census, then we see no rea­ son why the Bureau, in the exercise o f its expertise and discretion, may not alter its past practice and adjust the census figures it obtains through a “headcount.” 16 A ccordingly, we conclude that the Constitution does not preclude the Bureau from em ploying technically and administratively feasible adjustment techniques to correct undercounting in the next decennial census.

III.

The Census A ct includes two provisions authorizing the use of statistical meth­ ods, including “sam pling,” in conducting its statutory responsibilities. The first statute, 13 U.S.C. § 141(a), states that

[t]he Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as o f the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sam pling procedures and special surveys.

16 M o reo v er, in lig h t o f the B ureau's p osition thal the use o f a sam ple-based follow -up for enum erating n on-resp o n d en t h o u seh o ld s w ould improve th e accuracy o f the final count w hile at the sam e tim e saving the B ureau u p w ard s o f $ 3 0 0 m illion, w e can see n o constitutional o bjection to the introduction o f that procedure.

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The second statute, 13 U.S.C. § 195, authorizes, indeed mandates, the use of sampling, but with a limitation relating to apportionment

[e]xcept for the determination of population for purposes o f appor­ tionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as “sam pling” in carrying out the pro­ visions of this title.

In the past, the Bureau has taken the position that § 195 prohibits statistical ad­ justm ent of census data for purposes of apportionment. The difficulty centered on § 195’s prohibition on the use of “sampling” in determining the size o f the popula­ tion for purposes of apportionment. Since the scope of § 195’s exception is not plain from the language of the statute, we turn to the legislative history of that sec­ tion. Congress enacted § 195 in 1957, but in a form that authorized, rather than re­ quired, the use of sampling; a 1976 amendment transformed the Secretary’s authorization into the conditional mandate of the current statute.17 The enacting Congress of 1957 considered § 195 to be merely a change “of an administrative nature” that was “needed for the timely and efficient performance of the biggest jobs the Bureau of the Census has ever undertaken.” S. Rep. No. 85-698, at 2 (1957), reprinted in 1957 U.S.C.C.A.N. 1706, 1707. The proviso gave the Bureau the “authority to use sampling in connection with censuses except for the determ i­ nation of the population for apportionment purposes.” Id. at 3, rep rin ted in 1957 U.S.C.C.A.N. at 1708. W hat Congress originally meant by “sam pling” is not clear. In testimony in support of the 1957 legislation, Robert W. Burgess, the Director o f the Bureau of the Census, explained that

[t]he use of sampling procedures would be authorized by the pro­ posed new section 195. It has generally been held that the term “census” implies a complete enumeration. Experience has shown that some of the information which is desired in connection with a census could be secured efficiently through a sample survey which is conducted concurrently with the complete enumeration o f other items; that in some instances a portion of the universe to be in­ cluded might be efficiently covered on a sample rather than a com ­ plete enumeration basis and that under some circumstances a sample enumeration or a sample census might be substituted for a

17 As enacted in 1957, the statute had stated that "[e]xcept for the determ ination o f population for appor- tionm ent purposes, the Secretary m ay, w here he deem s it appropriate, authorize the use o f the statistical m ethod known as 'sam p lin g ' in carry in g out the provisions o f this title “ Pub L N o 85-207, § 14, 71 Stat 4 8 1 ,4 8 4 (1957)

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full census to the advantage of the Government. This section, in com bination with section 193, would give recognition to these facts and provide the necessary authority to the Secretary to permit the use o f sam pling when he believes that it would be advantageous to do so.

A m endm ent o f Title 13, U nited States Code, Relating to Census: H earings on H.R. 7911 B efore the H ouse Com mittee on P ost O ffice an d C ivil S ervice , 85th Cong. 7- 8 (1 9 5 7 ). The D irector’s testim ony suggests that in enacting § 195, Congress intended that the Bureau conduct a “complete enum eration” or a “full census” when deter­ mining the size of the population for apportionment purposes, but that the Bureau could use “sam pling” in other contexts, where a “sample enumeration” or a “sample census” might be used “to the advantage o f the G overnm ent.” Read in the light o f the testimony, the statute’s preclusion o f “sam pling” need not have meant that statistical adjustm ent o f census figures was forbidden: Congress may well have intended only that the decennial census not be a “sample census.” Moreover, a “com plete enum eration” or “full census” may affirmatively require statistical adjustm ents o f “headcount” data to be made. O ur Office has previously argued that the 1957 legislative history should not be understood to preclude statistical adjustm ent. Citing the testimony quoted above, we argued that “ [sjam pling refers to a representative portion of the whole . . . while adjustm ent refers to additions to the whole, here the headcount. As we read the Census Act, there is no statutory prohibition o f statistical adjustm ent.” Harmon M em orandum at 3 (citation omitted). The Congressional Research Service (the “CRS”), however, reviewed the same testimony and drew a contrary inference:

it appears that when Section 195 was originally enacted, the De­ partm ent of C om m erce took the position that an actual enumeration was required for all decennial census purposes. Section 195 was enacted in order to relieve this restriction for purposes other than apportionm ent by sanctioning the use o f sampling when appropri­ ate. There was no need to m ention other forms o f estimating popu­ lation since this section was making an exception to the general requirem ent o f an actual enumeration only for sampling. Therefore, one may conclude that Section 195 was not intended to sanction the use o f m ethods o f estimating population other than “sampling,” and did not intend to permit the use of this method for purposes of ap­ portionment.

Congressional Research Service, Library of Congress, L egal C onsiderations in C ensus Bureau Use o f Statistical P rojection Techniques to Include Uncounted

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Individuals For P urposes o f C ongressional R eapportionm ent (M ar. 27, 1980), (report prepared for Congressional use), reprin ted in P roblem s with the 1980 C en ­ sus Count: Joint H earing Before the Subcomm. on Com merce, Consumer, a n d M onetary Affairs o f the House Comm, on G overnm ent O perations, an d the Sub­ comm. on Census an d P opulation o f the House Comm, on P ost Office a n d C ivil Service, 96th Cong. 190 (1980) (the “Joint Hearing”). The 1976 legislation amending the Census Act, Act of Oct. 17, 1976, Pub. L. No. 94-521, 90 Stat. 2459, 2464, was primarily concerned with the establishment of mid-decade censuses. In carrying forward (and amending) § 195, we believe that Congress meant that while reliance on sampling alone might be appropriate or desirable for mid-decade censuses, it should not be the exclusive procedure for tabulating the population in decennial censuses.18 So understood, the 1976 re­ enactment does not bar the statistical adjustment of the decennial census if such adjustments would improve their accuracy. This interpretation of the 1976 legislative history is not uncontroverted. See Gerson M emorandum at 11 (“C ongress’ amendment of Section 195 in 1976 is similarly open to two alternative interpretations.”). The CRS, noting that both the Com ptroller General and the Bureau had advised Congress in 1976 o f ongoing developments in estimating or allocating populations other than sampling, argued that “it would be logically inconsistent for Congress to prohibit sampling for pur­ poses o f reapportionment, but at the sam e time to permit the use of other tech­ niques whose reliability had not yet been determ ined.” Joint Hearing at 188. Based on its review of the legislative history, CRS concluded that “the use o f demographic estimates for purposes of apportionment of Representatives among the States . . . is prohibited by Section 195 of Title 13.” Id. at 192.19 In our judgm ent, the better view is that the Census Act does not preclude the Bureau from engaging in statistical adjustments o f the next set of decennial census figures. See Franklin v. M assachusetts, 505 U.S. at 820 (Stevens, J., joined by

18 The S enate Report stated that the section o f the 1976 legislation that m odified 13 U S.C. § 195 '“differs from present language w hich grants the Secretary discretion lo use sam pling w hen it is considered a p p ro p ri­ ate The sectio n as am ended strengthens congressional intent that, w henever possible, sam pling shall be used ’’ S R ep No 94-1256, at 6 (1976), reprinted m 1976 U S .C .C A.N. 5463, 5468 19 One fu rth er aspect o f the 1976 legislative history should be noted In the 1970 decennial census, the Bureau used “sam pling" to add to the national total the figure o f alm ost five m illion people believed m issing from the h ead co u n t The B ureau estim ated that it had not co n tacted som e 10 2 m illion people, or about 5% o f the po pulation O f this 10.2 m illion not actually counted, 4 9 m illion w ere included in the official count by “ im putation ” and allocated am ong the States for apportionm ent o f H ouse seats. Young v K lu tzn ick , 497 F. Supp at 1321, see also G erson M em orandum at 15 ( ‘‘In effect, a portion o f the population w as not ta b u ­ lated directly in 1970 Instead, the Bureau obtained an estim ate o f its size from the results o f statistical sam pling and added that estim ate to the total population count "). The d istrict court in Young inferred that w hen C o n g ress am ended § 195 in 1976, it was “well aw are" o f the B ureau's adjustm ent o f the 1970 census data and im pliedly consented to that practice 497 F Supp at 1334-35 The court cited no direct evidence, how ever, thal C ongress was aw are of, and approved, the 1970 census adjustm ent See G erson M em orandum at 15 M oreover, as the Bureau argued, see Young, 4 9 7 F Supp at 1334, the re-enactm ent o f t} 195 (w ith essentially m inor changes from 1957) could be interpreted as a ratification o f the B u re au 's m ore traditional practice o f using only a headcount

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Blackm un, Kennedy and Souter, JJ., concurring in part and concurring in judg­ ment) (Census A ct “em bodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionm ent”). A non-preclusive reading gives due weight to the fact that, when it re-enacted § 195 in 1976, C ongress was primarily concerned with institut­ ing m id -d eca d e censuses. Its prohibition on “sam pling” in decennial censuses ap­ pears to have m eant only that while a procedure relying on “sampling” alone might be the m ost cost-effective means to discover the information sought in a mid­ decade census, the Bureau should not rely on “sam pling” as its exclusive method of tabulating population figures in the decennial census. The use o f sampling tech­ niques in the m id-decade census is “probably a pragmatic necessity in that in­ stance, given the vast mobilization of people and resources needed to conduct an even som ew hat accurate head count.” Senate o f California, 968 F.2d at 978. De­ spite the additional costs entailed, however, Congress did not wish the decennial census to consist o f “a mere statistical m anipulation through the use of sampling and other techniques.” Id. Nothing in amended § 195 p ro sc rib e d the use o f sam­ pling or other statistical devices in connection with the decennial “headcount,” however, if such adjustm ents would result in a more accurate tabulation. Furtherm ore, in adopting the Census Act, Congress “left the actual administra­ tion o f a great num ber o f necessary details to the judgm ent and discretion of the D irector o f the Census.” Seventeenth D ecennial Census, 41 Op. A tt’y Gen. at 33. Standing alone, § 141(a), which authorizes the D irector to take the decennial cen­ sus “in such form and content as he may determine, including the use of sampling procedures and special surveys,” w ould seem to permit statistical adjustments, if in the D irector’s judgm ent they would produce greater accuracy. W hile § 195 un­ doubtedly m akes an exception for the use of sampling in apportionment, that ex­ ception can be construed narrowly, as befits C ongress’s otherwise broad delegation of pow er to the Bureau: the section could be taken to mean that while census fig­ ures used for apportionm ent may not be based on sampling alone, it is permissible to use population sam ples as one elem ent in a more complex operation by which a prior “headcount” is corrected. Such a reading has in fact generally been adopted by the courts. See C arey v. Klutznick, 508 F. Supp. at 415; Young v. Klutznick, 497 F. Supp. at 1334-35; see also Gerson M em orandum at 18 (“the weight o f ex­ isting caselaw ” is “that Section 195 does not preclude statistical adjustment”).20 M oreover, if § 195 were read as preclusive, its constitutionality would be highly suspect. Because (as shown above) a non-preclusive reading is a reasonable one, it should be preferred. Substantial constitutional issues would arise under both the Enumeration Clause and the Fifth A m endm ent if § 195 were construed to prevent the Bureau from ad­

20 B u t see Jeffrey S C ram ptor, Comment, Lies, D am n L ies a n d Sta tistic.1 D ispelling Som e M yths S u r ­ rounding the U n ited S ta te s C en su s, 1990 D et. C L R ev 71 (criticizing case law ); G erson M em orandum at 18 C‘[w ]e can foresee a c o u rt deciding that S e c tio n 195, on its face, prohibits statistical adjustm ent").

196 The Tw enty-Second D ecennial Census

justing census data for apportionment. The Enumeration Clause prescribes that Representatives be apportioned to the several States “according to their respective Numbers,” and it can be argued that the Clause is violated if Representatives are apportioned on the basis of a census count that is known to be deficient, but that could be rendered more accurate by feasible adjustments. See Franklin v. M a ssa ­ chusetts, 505 U.S. at 806 (Bureau’s decision to allocate government personnel sta­ tioned abroad to State designated as home of record “does not ham per the underlying constitutional goal o f equal representation, but . . . actually promotes equality”); United States D e p ’t o f Com m erce v. M ontana, 503 U.S. 442, 461 (1992) (Court “might well find” that requirement that Representatives be appor­ tioned by reference to the populations o f the several States “em bodied] the same principle of equality” as found in W esberry), C arey v. Klutznick, 508 F. Supp. at 414 (language of Enumeration Clause evinces “an intent that apportionment be based on a census that most accurately reflects the true population of each state”); cf. W esberry, 376 U.S. at 13-14. Furthermore, “[t]he Fifth Amendment . . . might be thought, by analogy to the decisions invalidating the malapportionment of state legislatures under the equal protection clause, to require the federal government to apportion congressional seats . . . in accordance with an accurate estimate of the number of people in each state.” Tucker, 958 F.2d at 1414. See, e.g., R eynolds v. Sims, 377 U.S. 533, 555 (1964) (“the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exer­ cise of the franchise”). Thus, the Second Circuit has found that the B ureau’s deci­ sion not to adjust the 1990 census figures was constitutionally suspect under the Fifth Amendment:

[B]oth the nature of the right and the nature o f the affected classes are factors that traditionally require that the governm ent’s action be given heightened scrutiny: the right to have one’s vote counted equally is fundamental and constitutionally protected, and the un­ adjusted census undercount disproportionately disadvantages cer­ tain identifiable minority groups. . . . That the goal o f precise equality cannot be achieved nationwide . . . does not relieve the fed­ eral government of the obligation to make a good-faith effort to achieve voting-power equality “as nearly as is practicable.”

C ity o f N ew York, 34 F.3d at 1128, 1129 (citation omitted). We need not here consider whether the Second C ircuit’s view of the merits is correct; nor need we address the issue whether the question the court decided was litigable. Suffice it to say that there would be substantial constitutional difficulties under both the Enumeration Clause and the Fifth Amendment if § 195 were under­ stood to prohibit the Bureau from making practicable statistical adjustments that would result in a more accurate tally than the traditional headcount. Section 195

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should be construed, if ‘“ fairly possible,’” to avoid those difficulties. See, e.g., A sh w an der v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citation omitted). Because a constitutionally unproblematic reading is justified (and has, in fact, been adopted by m ost courts), it should be adopted. A ccordingly, § 195 does not preclude reliance upon technically feasible statisti­ cal adjustm ents to improve the accuracy of “headcount” data, and specifically to correct the differential undercounting of minority group populations. It also does not prohibit the Bureau from conducting the non-response follow-up on a sample basis, rather than sending enumerators to every non-responding household, where the use o f the form er technique would improve accuracy while substantially low­ ering adm inistrative costs.

Conclusion

N either the Constitution nor the Census Act precludes the Bureau from making the proposed statistical adjustments o f “headcount” data in the decennial census for the year 2000.

W ALTER DELLINGER A ssistan t A ttorney G eneral O ffice o f L egal Counsel