Counting and the Constitution

"Rep. Darrell Issa (R-Calif.) said that there was no legal or constitutional basis for Obama’s plans, citing the fact that Article I of the U.S. Constitution, which contains the census provision, spells out the powers of Congress -- not of the president or executive branch. “We [Congress] give to the executive branch and the Commerce Department the requirement to administer this constitutional duty, belonging to the Congress,” Issa explained. “By no means is there any basis, legal or constitutional basis, for the president to direct the census.” Obama has made no formal announcement of plans to take over the census, but numerous press reports last week – citing unnamed senior administration officials – said that he planned to have the Census Bureau’s director report directly to White House staff." From this article.

Well what about it? Is the President, with his reported plan to have more hands on involvement, ignoring the Constitution when it comes to the census?

Let's start at the beginning and note specifically what the Constitution says about a census. The relevant text is in Article 1, Section 2: "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." The emphasis is mine, because that's really the bone of contention here. What, exactly, has Congress by law directed?

As so often is the case in matters like this, Congress passed the buck: they simply directed the Executive branch to worry about the census. And they've spent quite a lot of ink doing that. There are fifty titles in the United States Code, everything from agriculture (Title 7) to veterans' benefits (Title 38). Would you believe there is an entire title devoted to the census? It's title 13 and if you thought all the Bureau of Census does is count people, I'd recommend a glance at some of the provisions. Take a peek at section 44:

"In addition to the information regarding cotton in the United States provided for in this subchapter, the Secretary shall compile, by correspondence or the use of published reports and documents, any available information concerning the production, consumption, and stocks of cotton in foreign countries, and the number of cotton-consuming spindles in such countries."

Makes you proud to be an American, huh? Now go ask a dozen intelligent people this question: "Who in the government keeps track of how much cotton is produced outside the U.S?" I'll bet they say it's the Secretary of Agriculture. But no, counting alien cotton is the duty of the Bureau of the Census, headed by the Secretary of Commerce. (That's assuming we ever HAVE a Secretary of Commerce.)

Well that's fun information, but not what we're looking for here. Section 2 of Title 13, from a law passed in 1954, places the Bureau of Census within the Department of Cotton--er, Commerce. So there's no argument there, Congress did put the census under the control of a member of the President's cabinet.

And is the President specifically mentioned when it comes to the ten year headcount? Yes, in section 141, which reads in part:

(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of 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 sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

I highlighted the things I think are most significant to the discussion here, and certainly the source of the disagreement between Congressman Issa and President Obama. In short, the Secretary of Commerce is specifically mentioned as the person authorized to basically conduct the census, but it also clearly declares that he must report his findings to the President.

Well I think Issa is posturing a bit here, but the opposition party to the President always does that. But I also think he has a point. You may if you choose defend Obama's plan by saying hey, he's the guy who the census report is supposed to ultimately be delivered to anyway, so why fuss if he's just trying to eliminate the middleman? And yes, I'd agree with you that in the general scheme of things, it really isn't that significant if Obama engages in a bit of a bypass to speed up the process. The problem with saying that Obama politicizes the census if he has a personal involvement is that the man or woman who ultimately does become Commerce Secretary will be a lieutenant of his who could also just as easily politicize it.

But Obama shouldn't be eliminating the middleman when the statute clearly specifies that the middleman is responsible for conducting the census. It isn't appropriate for the President to alter the procedure without Congressional approval.

They'll be reporting for spring training in Florida and Arizona shortly, so let me use a baseball analogy. Section 141 is, I think, a bit like an intentional walk. Every once in awhile, somebody will remark that it's a silly formality having the pitcher gently toss four straight pitches eight feet out of the strike zone. Why not just let the pitcher or catcher say to the umpire, "Let him take the base" and have the batter trot to first without the four lobs?

Sure, that could be done. But until such time as the lords of baseball decide to change the rule, the pitcher MUST make those four wide tosses.

It's the same thing with section 141 on the census. Maybe there's no good reason not to just say the President is authorized to handle it as he sees fit, seeing as how the person who does handle it is one of his political appointees anyway. But regardless of whether the distinction between the Secretary of Commerce reporting to the President or the President reporting to himself is trivial, that's the law as it stands. Obama shouldn't stray from that at all.