No. 98-404
In the Supreme Court of the United States
OCTOBER TERM, 1998
UNITED STATES DEPARTMENT OF COMMERCE, ET AL., APPELLANTS
v.
UNITED STATES HOUSE OF REPRESENTATIVES, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REPLY BRIEF FOR THE APPELLANTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
REPLY BRIEF FOR THE APPELLANTS
The Constitution provides that Representatives shall be apportioned among
the States "according to their respective Numbers." U.S. Const.
Art. I, § 2, Cl. 3; U.S. Const. Amend. XIV, § 2. To effectuate
that constitutional command, the Census Clause directs that an "actual
Enumeration" of the population must be made at least once within every
ten-year period. U.S. Const. Art. I, § 2, Cl. 3. That Clause states
that the enumeration may be conducted "in such Manner as [Congress]
shall by Law direct," ibid.--language that "vests Congress with
virtually unlimited discretion," Wisconsin v. City of New York, 517
U.S. 1, 19 (1996). Congress in turn "has delegated its broad authority
over the census to the Secretary" of Commerce, ibid., by directing
the Secretary to "take a decennial census of population * * * in such
form and content as he may determine," 13 U.S.C. 141(a).
Based on abundant scientific evidence and the opinions of numerous experts
and panels, the Census Bureau has determined that the use of statistical
sampling mechanisms in the 2000 census will improve the accuracy of the
state-level population counts that will be used in apportioning Representatives
among the States. The House of Representatives does not contest that determination.
The House nevertheless contends that the use of sampling for apportionment
purposes is barred by both the Constitution and the Census Act, despite
the sweeping grants of authority described above, and despite the fact that
the Act specifically authorizes the use of "sampling procedures"
in the conduct of the decennial census. The House's claims should be rejected,
both because the House lacks any judicially cognizable interest in the issue,
and because the Bureau's plan for the 2000 census falls well within its
lawful sphere of discretion.
A. The House of Representatives Lacks Standing To Bring This Suit
1. Contrary to the House of Representatives' contention (Br. 12-18), the
Commerce Department's plan for the 2000 census imposes no actual or imminent
"informational injury" upon the House. The House does not seek
to compel the production of information already in the possession of the
Executive Branch defendants. Compare McGrain v. Daugherty, 273 U.S. 135
(1927). Nor does it seek to compel them to procure information currently
in the possession of a private party. Compare FEC v. Akins, 118 S. Ct. 1777
(1998). Rather, the purpose of the instant suit is to effect a fundamental
alteration in the methodology by which the Commerce Department plans to
conduct the 2000 census. The fact that one consequence of the district court's
order would be the furnishing of different population figures to Congress
is not a sufficient basis for concluding that the House has a judicially
cognizable "informational" interest in the case.1
The House of Representatives contends (Br. 14-16) that it must receive state-level
population totals derived without the use of sampling in order to decide
intelligently whether the current statutory apportionment formula (the method
of equal proportions, see 2 U.S.C. 2a(a); United States Dep't of Commerce
v. Montana, 503 U.S. 442, 451-455 (1992)) should be changed. That asserted
basis for standing is farfetched. Although Congress undoubtedly retains
authority to enact a new law adopting a different apportionment formula,
see Montana, 503 U.S. at 463-465, the House offers no basis for believing
that such legislative action is likely to occur in the foreseeable future.
Nor is there any reason to suppose that a particular set of state-level
population figures for the year 2000 would be necessary or even useful to
any principled legislative reconsideration of the equal proportions formula.
Indeed, the premise of the House's argument--i.e., that it can intelligently
choose among possible apportionment formulas only if it knows the effect
of each formula on the 2001 apportionment of Representatives among the States--is
inconsistent with the House's purported determination to prevent political
manipulation of the census.2
2. Relying on Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187
(1972), the House of Representatives argues (Br. 18-21) that it possesses
a judicially cognizable interest in its "lawful composition."
The House's reliance on Beens is misplaced. The district court judgment
under review in that case would have fundamentally altered an existing legislative
body by, inter alia, requiring that the number of senatorial districts within
the State be reduced from 67 to 35. See 406 U.S. at 188-193. By contrast,
the Census Bureau's plan for the 2000 census can have no effect whatever
upon the House of Representatives until the 108th Congress convenes in the
year 2002. See Comm. Dep't Br. 24-25 n.12. Even at that time, the House
will be composed of 435 Members regardless of whether sampling is employed
in the 2000 census. Although the use of sampling might affect the number
of Members chosen from several States, and thus the identities of some individual
Members of the House, any such effects would have no impact on the vast
majority of States and Members and would impose no injury on the House as
a corporate body.3 There is, moreover, no reason to assume that the House
of Representatives for the 108th Congress-a body that will be composed of
individuals who have won election based on the 2001 apportionment-will regard
itself as being unlawfully composed.4
3. In our opening brief, we explain (at 24) that intra-governmental disputes
concerning the respective prerogatives of the political Branches have traditionally
been regarded as insusceptible of judicial resolution. The precedents cited
by the House of Representatives (see Br. 23-24 & nn. 28-29) do not refute
that proposition. Those cases involved either (a) disputes between a governmental
entity and a government official litigating in his individual capacity,
see, e.g., United States v. Will, 449 U.S. 200 (1980), or (b) disputes whose
resolution would have concrete effects on a private actor who was a party
to the case, see, e.g., INS v. Chadha, 462 U.S. 919, 939-940 (1983). As
Chadha and subsequent decisions (see, e.g., Morrison v. Olson, 487 U.S.
654 (1988); Bowsher v. Synar, 478 U.S. 714 (1986)) make clear, the courts
may appropriately resolve legal issues as to which the political Branches
disagree in the course of determining "the rights of individuals,"
Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992). The fact that
such suits are justiciable despite the existence of inter-Branch conflict
does not mean, however, that an inter-Branch disagreement is itself a sufficient
basis for the exercise of jurisdiction by an Article III court.
At bottom, a majority of the Members of the House simply disapprove of the
way in which the Secretary of Commerce intends to execute an existing law
(the Census Act). It is to the President, however, not to the Congress (or
to the courts acting at Congress's behest), that the Constitution assigns
the power to "take Care that the Laws be faithfully executed."
Art. II, § 2, Cl. 3; see Lujan, 504 U.S. at 577. Congress's disagreement
with the Secretary's decision, "no less than Congress' original choice
to delegate to the [Secretary] the authority to make that decision, involves
determinations of policy that Congress can implement in only one way; bicameral
passage [of a bill] followed by presentment to the President." Chadha,
462 U.S. at 954-955.
B. Any Census Methodology Will Produce An Estimate Of The "Respective
Numbers" Of "The Several States"
A recurring theme in the House of Representatives' brief is the assertion
that the decennial census has traditionally involved an effort to "count"
the numbers of people within the various States, and that the Census Bureau
plans to depart from that tradition in the year 2000 by "estimating"
those numbers instead. See House Br. 11, 31, 33, 44, 45, 47, 50. As we explain
in our opening brief (at 47-49 & n.29), the Census Bureau has repeatedly
used techniques that cannot plausibly be regarded as a "headcount"
of identified individuals. But even if those techniques were abandoned,
the population figures transmitted to Congress pursuant to 2 U.S.C. 2a(a)
would be estimates of the actual numbers of persons in each State. The choice
facing the Census Bureau and this Court concerns the appropriate method
of estimating the population, not whether to estimate at all.5
The purpose of the decennial census is to determine the number of persons
actually residing within each State in order to effectuate the constitutional
directive that "Representatives * * * shall be apportioned among the
several States * * * according to their respective Numbers." U.S. Const.
Art. I, § 2, Cl. 3. It is universally recognized, however, that the
actual populations of the States cannot be determined with absolute precision.
The census methodology advocated by the House of Representatives-i.e., ascertaining
the numbers of persons within each State who can be specifically located
and identified--will produce only an approximation of the numbers of persons
actually residing within the States, not an exact count thereof.6 The question
before the Court is whether the Census Act or the Constitution requires
the Bureau to employ that particular method of approximating the actual
population--not whether the Act or the Constitution prohibits estimation
as such.7
C. 13 U.S.C. 141(a) Grants The Secretary Broad Discretion And Specifically
Authorizes The Use Of Sampling
The House of Representatives suggests that the Secretary's claim of authority
to use sampling for apportionment purposes is anomalous--contrary to the
spirit or overall structure of the Act-and that any ambiguity in 13 U.S.C.
195 should therefore be resolved so as to preclude the use of sampling.
See, e.g., House Br. 32-33. The Census Act provision that deals specifically
with the decennial census of population, however, authorizes the Secretary
to take that census "in such form and content as he may determine,
including the use of sampling procedures." 13 U.S.C. 141(a). Section
141(a) establishes as the operative background rule that the Census Bureau
may employ whatever means it believes will increase the accuracy of the
state-level population counts used in the apportionment process.
The Secretary's express authority to use "sampling procedures"
is thus simply one aspect of his power to conduct the decennial census "in
such form and content as he may determine"--language by which "Congress
has delegated its broad authority over the census to the Secretary."
City of New York, 517 U.S. at 19. Congress's decision to confer that broad
authority does not preclude the possibility that other Census Act provisions
bar the use of sampling for apportionment, even where the Secretary has
reasonably concluded that sampling will improve the accuracy of the state-level
population counts. Contrary to the House's suggestion, however, such a prohibition
would be a unique exception to Congress's general approach to the decennial
census.
D. 13 U.S.C. 195 Has Never Functioned As A Prohibition On The Use Of Sampling
For Apportionment Purposes
As the House of Representatives recognizes (Br. 34-35), the Census Act imposed
significant barriers to the use of statistical sampling prior to the enactment
of Section 195 in 1957. First, the Commerce Department and Congress understood
the statutory term "census" to contain an implicit requirement
of a "complete enumeration" rather than a "sample survey."
See Amendment of Title 13, United States Code, Relating to Census: Hearing
on H.R. 7911 Before the House Comm. on Post Office and Civil Service, 85th
Cong., 1st Sess. 7-8 (1957); H.R. Rep. No. 1043, 85th Cong., 1st Sess. 10
(1957); Comm. Dep't Br. 33-35. Second, former 13 U.S.C. 25(c) (Supp. IV
1952) required each Census Bureau enumerator to "visit personally each
dwelling house in his subdivision." The effect of Section 195's opening
proviso was that those pre-existing barriers remained in place with respect
to the apportionment of Representatives among the States. But Section 195
was not itself a prohibition on the use of sampling for apportionment purposes.
Rather, Section 195 is and has always been irrelevant by its terms to the
apportionment process. See Comm. Dep't Br. 33-39.8
Focusing on the 1976 amendment to Section 195, the House of Representatives
contends that Congress would not have eliminated the earlier sampling prohibition
"casually" or "inadvertently" (Br. 33) or in "an
oblique fashion" (Br. 37). But when the original statutory barriers
to sampling have been accurately identified, the House's point is demonstrably
without force. Congress eliminated those barriers to sampling in the most
direct and unambiguous way possible. It repealed former Section 25(c) in
1964. See Act of Aug. 31, 1964, Pub. L. No. 88-530, 78 Stat. 737. And insofar
as the word "census" was thought implicitly to have barred or
limited the use of sampling for apportionment purposes, any such implication
was eliminated by the 1976 amendment to 13 U.S.C. 141(a), which specifically
authorized the Secretary to conduct the decennial census "in such form
and content as he may determine, including the use of sampling procedures."
See Comm. Dep't Br. 37-39.9
The House's brief is almost entirely unresponsive to the foregoing analysis.
The House asserts (Br. 35-36) that Section 195 as originally enacted "unequivocally
* * * prohibited the Secretary from using sampling to determine the population
for purposes of apportionment." The sole authorities it offers for
that proposition, however, are two committee reports, each of which states
only that Section 195 did not authorize the use of sampling in connection
with the apportionment process. See House Br. 36 n.47; Comm. Dep't Br. 34-35.
The fact that Section 195 provided no affirmative authorization for sampling
in the apportionment process does not suggest that Section 195 itself prohibited
such uses of sampling. Nor is there any merit to the House's assertion (Br.
36) that "[i]rrespective of whether the proviso in § 195 was a
'freestanding' prohibition when it was enacted, it clearly was a freestanding
prohibition after Congress eliminated § 25(c) in 1964 to permit the
Bureau to take the census by mail." If our reading of Section 195 in
its original form is correct--i.e., if the original purpose and effect of
Section 195's opening proviso was to render that Section irrelevant to apportionment,
leaving the use of sampling for apportionment purposes to be governed by
other, pre-existing Census Act provisions--the subsequent repeal of Section
25(c) could not plausibly be thought to transform the proviso into a prohibition.10
E. Congress Did Not Prohibit Sampling In Order To Prevent "Political
Manipulation"
The Census Bureau's decision to employ statistical sampling in the 2000
census was principally based on its determination--supported by a wealth
of scientific evidence--that the use of sampling will enable the Bureau
to determine more accurately the actual populations of the United States
and its political subdivisions. See Comm. Dep't Br. 5-8; 98-564 Gov't Reply
Br. 1-9. The House of Representatives does not challenge the Bureau's conclusion
that sampling will improve the accuracy of those population counts. Rather,
the House contends that sampling will increase the danger of "political
manipulation" (Br. 33, 48); and it suggests that in enacting 13 U.S.C.
195, Congress chose to prohibit the use of sampling in connection with apportionment
in order to eliminate the risk of such manipulation (Br. 33). Those arguments
do not withstand scrutiny.
1. As the Report to Congress explains, "[e]very effort has been made
to ensure the independence and integrity of the decisions by the professional
statisticians at the Census Bureau" in connection with the 2000 census.
J.A. 128; see J.A. 128-132. After review of and comment on its plan for
the 2000 census by the public and the professional statistical community,
"the Census Bureau will announce and 'lock in' its final set of formulas--well
in advance of the collection of any data in 2000." J.A. 132. By making
all significant methodological decisions before census data are collected,
the Bureau will avoid replication of the choice that confronted Secretary
Mosbacher in July 1991, when he was required to determine whether census
figures would be statistically adjusted at a time when the effects of an
adjustment on individual States and localities were precisely known. See
2000 Census: Progress Made on Design, but Risks Remain, GAO/GGD-97-142,
at 60, 76 (July 1997).11 The House's argument also incorrectly assumes that
non-sampling methods present no opportunity for manipulation of the census
process. In fact, a census conducted without sampling requires a host of
discretionary decisions concerning appropriate methodology and allocation
of resources that could significantly affect the final counts.12
2. The House identifies nothing in the legislative history of Section 195--either
at the time of its original enactment in 1957, or at the time of its amendment
in 1976--suggesting congressional concern that the use of sampling in the
apportionment process would facilitate political manipulation. Moreover,
two features of the Census Act substantially undermine that notion.
a. The Act directs the Secretary to "take a decennial census of population
* * * in such form and content as he may determine, including the use of
sampling procedures." 13 U.S.C. 141(a). The House contends that Section
141(a)'s authorization to use sampling is subject to limitations imposed
by Section 195. Whatever the merits of that contention, however, Section
141(a) confers very broad--essentially plenary--discretion upon the Secretary
with respect to the conduct of the decennial census. See City of New York,
517 U.S. at 19. That provision reflects Congress's confidence that the Census
Bureau will discharge its duties in a professional and non-partisan manner.
Congress would not likely have deemed the Bureau to be deserving of such
confidence in all other respects, yet susceptible to political manipulation
with respect to sampling alone.
b. Whatever the meaning of Section 195's opening proviso, the rest of Section
195 unambiguously directs the Secretary to utilize sampling for purposes
other than the apportionment of Representatives among the States "if
he considers it feasible." Those additional uses of census information
include intrastate redistricting and the distribution of federal funds among
States and localities--two highly politicized and contentious subjects.
It strains credulity to suggest that Congress forbade the use of sampling
in connection with apportionment out of concern that the census would be
politically manipulated, while encouraging the Secretary to employ sampling
in deriving the population figures that will be used for those other purposes.
F. The Census Bureau's Plan Is Consistent With The Constitutional Requirement
Of An "Actual Enumeration"
1. The House of Representatives contends (Br. 45) that "[a]t the time
of the Constitutional Convention, 'actual Enumeration' had a plain meaning"
that excluded the statistical methodologies described in the Census Bureau's
plan for the 2000 census. That assertion is not accurate. As we explain
in our opening brief (at 40), the word "enumeration" has long
been understood to mean (inter alia) "[t]he action of ascertaining
the number of something; esp. the taking a census of population; a census."
3 The Oxford English Dictionary (OED) 227 (1933). The manner in which the
Bureau intends to conduct the 2000 census fits comfortably within that definition.
Although the word "enumeration" can be used in the manner the
House suggests, see ibid. (giving as second definition "[t]he action
of specifying seriatim, as in a list or catalogue"), the House's reliance
on the word's purported "plain meaning" is insupportable.13
The requirement of an "actual Enumeration" should also be construed
in a manner that renders it consistent with the text and purpose of the
Census Clause as a whole. The directive that an "Enumeration"
be conducted follows, and was intended to effectuate, the fundamental requirement
that Representatives be apportioned among the States "according to
their respective Numbers." The rule proposed by the House, however,
would compel the use of a particular methodology even if Congress believes
it to be incapable of producing acceptably accurate population figures.
Such a limitation would frustrate congressional efforts to ensure compliance
with the independent constitutional requirement that the apportionment of
Representatives must be based on the "respective Numbers" of "the
several States." Basic interpretive principles counsel against that
ossified and self-defeating reading of the Census Clause. "[I]t is,"
after all, "a constitution we are expounding." McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 407 (1819).
2. As we explain in our opening brief (at 41-46), the drafting history of
the Census Clause strongly indicates that the phrase "actual Enumeration"
was not intended to constrain Congress's choice of an appropriate methodology
for determining the number of persons within each of the States. The phrase
"actual Enumeration" was first employed by the Committee of Style
and Arrangement. That committee revised an earlier draft provision, prepared
by the Committee of Detail and approved by the Convention, stating that
the "number" of each State's inhabitants "shall * * * be
taken in such manner as [Congress] shall direct." 2 M. Farrand, The
Records of the Federal Convention of 1787, at 183, 565, 566, 571 (1966 ed.).
Because the Committee of Style was not authorized to make substantive changes
in the draft Constitution submitted for its review and revision, see Nixon
v. United States, 506 U.S. 224, 231 (1993), the phrase "actual Enumeration"
should not be construed to limit Congress's choice of an appropriate census
methodology.
Contrary to the House's suggestion (see Br. 48 n.67), we do not contend
that the final text of the Constitution should be ignored or subordinated
to the earlier draft prepared by the Committee of Detail. We do believe,
however, that the Census Clause should be read, if fairly possible, in a
manner consistent with both the final text and the earlier draft. Compare
Nixon, 506 U.S. at 231 (the Court "must presume that the Committee
[of Style] did its job"). The Commerce Department's interpretation
of the constitutional text satisfies that standard; the House's construction
does not.
3. The House also contends that the Framers were familiar with "estimation
techniques" (Br. 47) and deliberately chose language that would preclude
the use of such mechanisms. Statistical sampling as a probability method
did not exist at the time the Constitution was drafted, however, see, e.g.,
J.A. 343, and the Framers therefore could not have rejected its use. The
estimation techniques described in the materials cited in the House's brief
(at 47 n.65) did not involve efforts to ascertain the population through
actual inquiry of the people. They instead involved attempts to utilize
pre-existing data from various sources that had initially been compiled
for other purposes.
Although the Constitution's "actual Enumeration" requirement does
not preclude reliance on pre-existing records, it is not surprising that
early Congresses eschewed their use. Federal administration of the census
was deemed essential in light of the Framers' expectation that "[t]he
States will be too much interested to take an impartial one for themselves."
1 Farrand at 580 (Edmund Randolph). Because the types of administrative
records (e.g., polling lists and militia rolls) on which colonial authorities
relied would have been prepared and maintained by state officials even after
the adoption of the Constitution, their use as a basis for apportionment
would have been inconsistent with the constitutional scheme. The Bureau's
plan for the 2000 census is subject to no comparable criticism.
4. The House contends (Br. 48) that the Framers mandated a particular method
of ascertaining the population "to reduce the scope of potential disputes
and minimize the opportunity for political manipulation." That suggestion
is without basis.
The Framers repeatedly expressed concern that Members of Congress might
seek to perpetuate themselves in power by declining to reapportion the House
of Representatives in light of population shifts. See Comm. Dep't Br. 46-47
n.28. The Framers explicitly addressed that danger by requiring that a new
enumeration be conducted at least once within every ten-year period. U.S.
Const. Art. I, § 2, Cl. 3. Neither the text nor the history of the
Census Clause, however, reveals a comparable intention to circumscribe Congress's
selection of methods of taking the census in order to prevent the use of
a method that might improperly deny newly-populous States their fair share
of representation.14 To the contrary, the Constitution gives Congress sweeping
authority to conduct the decennial census "in such Manner as they shall
by Law direct." Ibid.; see City of New York, 517 U.S. at 19 ("The
text of the Constitution vests Congress with virtually unlimited discretion
in conducting the decennial 'actual Enumeration,' and * * * there is no
basis for thinking that Congress' discretion is more limited than the text
of the Constitution provides.").
* * * * *
For the reasons stated above and in our opening brief, the judgment of the
district court should be vacated and the case remanded with instructions
to dismiss for lack of jurisdiction. In the alternative, the judgment of
the district court should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
NOVEMBER 1998
1 The relief requested by the House and awarded by the district court goes
well beyond an order directing the Commerce Department to provide Congress
with state-level population figures derived without the use of sampling.
Rather, the effect of the court's order is to require that figures produced
without the use of sampling must be certified by the President as the official
state-level totals pursuant to 2 U.S.C. 2a(a). As we explain in our opening
brief (at 21 & n.10), the evident purpose of such relief is to achieve
the current House's policy objectives without the passage of any new law--not
to facilitate future legislative activity.
2 As the House points out (Br. 14), Congress's practice for much of the
country's history was to enact a new apportionment law after each decennial
census. Congress abandoned that practice in 1941, however, by adopting a
permanent, self-executing apportionment formula and thereby obviating the
need for the frequently acrimonious disputes that had previously characterized
the apportionment process. See Comm. Dep't Br. 3 n.1. Although the Constitution
does not preclude Congress from resuming its earlier practice, the House
has not pointed to any meaningful likelihood that Congress will choose to
do so.
The House also suggests (Br. 13 & n.13) that it might use population
figures derived without the use of sampling in order to determine the qualifications
of potential Members elected after the 2001 apportionment. The existing
reapportionment statute, however, unambiguously provides that "[e]ach
State shall be entitled * * * to the number of Representatives shown in
the statement" transmitted by the President to Congress. 2 U.S.C. 2a(b)
(Supp. II 1996). The House identifies no authority suggesting it could refuse
to seat Members elected in accordance with the apportionment mandated by
law. The precedents cited by the House (see Br. 13 n.13) involved situations
in which a State was found to have elected Representatives in excess of
the number allotted by statute.
3 The apparent premise of the House's argument is that any violation of
law affecting the identity of a single Member causes the House to be unlawfully
composed. In a variety of circumstances, however, the manner in which individual
Representatives are seated (or unseated) has been found to have been tainted
by constitutional error. See, e.g., Bush v. Vera, 517 U.S. 952 (1996) (manner
in which State considered racial factors in drawing congressional districts
violated the Equal Protection Clause); Karcher v. Daggett, 462 U.S. 725
(1983) (State violated Article I, Section 2 by failing to draw congressional
districts that were as nearly equal in population as practicable); Powell
v. McCormack, 395 U.S. 486 (1969) (House of Representatives violated Article
I, Section 5 by refusing to seat an elected Representative who possessed
the constitutional qualifications). It seems to us a very dubious proposition--and
one that scarcely serves the continuing interests of the House--to suggest
that such infirmities in the selection of individual Members cast doubt
on the "constitutional character" (House Br. 19) of the entire
House of Representatives.
Although the House asserts (Br. 27) that "the Secretary's decisions
[regarding statistical sampling] could have an enormous impact on the apportionment
of Representatives in Congress," the statistical adjustment considered
(and ultimately rejected) in 1991 would have caused a shift of no more than
two seats. See 94-1614 Gov't Br. 18-19 (City of New York).
4 The current House of Representatives' entitlement to sue on behalf of
future Houses is particular tenuous with respect to its claim under the
Census Clause. The House seeks a decision of this Court that would preclude
any future Congress from requiring or authorizing any census methodology
other than a headcount, even if Congress affirmatively concludes that the
use of statistical sampling is appropriate. Whatever the merits of the House's
constitutional theory, the long-term interests of the House are unlikely
to be served by such a decision.
5 The Secretary of Commerce is required to "take a decennial census
of population as of the first day of April of [the census] year." 13
U.S.C. 141(a). Persons identified during the census, however, are not automatically
allocated to the State in which they are physically present on the census
date. Rather, persons have historically been allocated among the States
based on their "usual residence" as of that date. See Franklin
v. Massachusetts, 505 U.S. 788, 803-806 (1992). The term "usual residence"
connotes "more than mere physical presence, and has been used broadly
enough to include some element of allegiance or enduring tie to a place."
Id. at 804. In applying the concept of "usual residence," the
Census Bureau has historically employed rules of general applicability rather
than undertaking an individualized inquiry into the subjective loyalties
or expectations of each person within the relevant categories. Thus, a high
school student attending boarding school is allocated to the State in which
his parents reside. See id. at 806. The same rule applied to college students
until 1950, when the Bureau adopted its current practice of allocating those
students to the States where they attend college. See id. at 805-806; 91-1502
J.A. 178, 219 (Franklin). For most of the country's history, overseas federal
employees were not allocated to any State; but for the 1990 census each
such person was allocated to the "home of record" identified in
his personnel file. Franklin, 505 U.S. at 792-795. Thus, even with respect
to individuals who are specifically identified on census forms, an element
of generalization or estimation is built into the process by which individuals
are allocated to particular States.
6 As the Census Bureau's Report to Congress explains, "Census takers
have never been able to contact and count each and every resident of this
nation. As a result, information on less than the whole population has always
been used to characterize the whole population." J.A. 81.
7 In common usage, a person who is instructed to "count" the number
of persons or objects at a particular location, and who is specifically
told that an "estimate" is not sufficient, would likely conclude
that the instruction reflected a desire for a precisely accurate number.
That distinction loses its significance, however, in situations (like the
decennial census of population) where precise accuracy is unattainable.
The House's use of the terms is particularly unusual because the Census
Bureau's plan for the 2000 census is grounded in the determination that
population figures derived through the use of sampling--figures that the
House disparages as mere "estimates"--will more accurately reflect
the actual populations of the States than will figures produced without
sampling.
8 The legislative history of the 1957 Census Act amendments suggests that
Congress at that time did not foresee the use of sampling as a technique
to supplement rather than to replace efforts to contact all residents directly.
See Br. for Intervenors Gephardt, et al. 8-9, 33-35. That form of sampling
might well have been permissible, even for purposes of apportionment, at
the time Section 195 was originally enacted. The House contends (Br. 36
n.49) that no plausible "intermediate position" exists, or has
ever existed, because Section 195 itself draws no distinction between sampling
used to supplement traditional enumerative techniques and sampling used
in their stead. As we explain above and in our opening brief, however, the
statutory barriers to sampling that existed immediately after the enactment
of Section 195 were imposed by the then-current understanding of the word
"census" and by former Section 25(c), not by Section 195 itself.
It is by no means clear that those pre-existing statutory barriers would
have precluded the use of statistical sampling as a supplement to good-faith
efforts by the Census Bureau to contact all residents directly. See Comm.
Dep't Br. 36-37 n.19.
The Bureau's plan for the 2000 census includes an exhaustive effort to mail
questionnaires to all of the country's known households; to make questionnaires
available in public places; and to encourage public participation by advertising
and other outreach methods. See J.A. 73-80; 98-564 J.A. 102-104. Contrary
to the House's contention (Br. 36 n.49), the sampling contemplated for the
2000 census will therefore supplement, rather than substitute for, a good-faith
effort to contact all residents directly.
9 The Census Bureau made extensive use of sampling during the 1970 census.
See Comm. Dep't Br. 49 n.29; J.A. 82. Congress passed the express authorization
of sampling in Section 141(a) in the wake of that experience, see Br. for
Intevenor California Legislature 16-20, and that change was one of a number
designed "to conform more properly to the current language and practices
used by the Bureau of the Census," S. Rep. No. 1256, 94th Cong., 2d
Sess. 1 (1976). See id. at 4 ("New language is added at the end of
[Section 141(a)] to encourage the use of sampling and surveys in the taking
of the decennial census.").
10 As the House correctly points out (Br. 24-27), the Census Bureau and
the Department of Justice have previously expressed views regarding the
interpretation of Section 195 that are not consistent with our position
in this case. In 1980, the Census Bureau asserted that Section 195 precluded
statistical adjustment of population figures to be used in the apportionment
process, and the Department of Justice defended that position in litigation,
unsuccessfully. Subsequent Department of Justice opinions have concluded
that Section 195 does not prohibit the use of sampling as a supplement to
traditional enumerative techniques, but have suggested that Section 195
does prohibit the Bureau from using sampling for apportionment purposes
as a substitute for good-faith efforts to contact all residents directly.
Our position throughout the current litigation has been that Section 195
has no prohibitory effect whatever: its opening proviso renders that Section
altogether irrelevant to apportionment, leaving the propriety of sampling
in that context to be governed by other provisions of law.
It can hardly be contended, however, that the Census Bureau's current understanding
of the applicable law represents the abandonment of a previously settled
legal position. The Bureau made extensive use of sampling techniques during
the 1970 census. See note 9, supra. And although the Secretary of Commerce
ultimately decided not to employ a statistical adjustment of the 1990 census
figures, he made clear that his decision did not rest on a determination
that either the Census Act or the Constitution precluded an adjustment.
See Comm. Dep't Br. 4-5 n.2. Indeed, the Director of the Census Bureau recommended
in favor of the proposed adjustment. See 94-1614 J.A. 68-94 (City of New
York).
Because the statutory analysis set forth in our briefs in this case is concededly
a departure from prior Commerce and Justice Department positions, we have
not invoked the principle that the Secretary's interpretation of the Census
Act is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Section 141(a) does, however,
expressly (and broadly) confer on the Secretary the authority to conduct
the decennial census "in such form and content as he may determine,
including the use of sampling procedures." And the Report to Congress
and the Census 2000 Operational Plan, which are by statute the subject of
this lawsuit (see Comm. Dep't Br. 9), obviously represent the Secretary's
formal position that the sampling he contemplates is lawful. Moreover, insofar
as the propriety of the Bureau's plan for the 2000 census depends on subsidiary
technical and policy questions--e.g., whether sampling is likely to enhance
the accuracy of the population counts, or whether sampling renders the census
more or less susceptible to political manipulation--the agency's views on
those issues warrant deference from this Court. See City of New York, 517
U.S. at 23.
11 There is no merit to the House's criticism of the Bureau (see House Br.
3) for its plan to conduct a "one number" census rather than to
produce alternative sets of population figures derived with and without
the use of sampling. See Counting People in the Information Age, at 21 (D.
Steffey and N. Bradburn eds., 1994) (National Academy of Sciences (NAS)
Panel to Evaluate Alternative Census Methods explains that "[t]he one-number
approach * * * represents a departure from the methodology of the 1990 census,"
in which the ultimate decision against statistical adjustment "proved
to be controversial because it occurred in a highly politicized environment
in which interested parties perceived themselves as winners or losers, depending
on which set of numbers was chosen."). That panel has accordingly "expressed
strong approval of the one-number census concept." Id. at 22.
12 Dr. Charles L. Schultze was the chairman of the Panel on Census Requirements
in the Year 2000 and Beyond, a panel convened by the NAS pursuant to the
Decennial Census Improvement Act of 1991, Pub. L. No. 102-135, 105 Stat.
635 (13 U.S.C. 141 note). Dr. Schultze has testified that one advantage
of the Bureau's approach is that "[t]he transparency of census operations
to the Congress and the public will be improved." Census 2000: Hearing
Before the Senate Comm. on Governmental Affairs, 105th Cong., 1st Sess.
55 (1997). Dr. Schultze explained that "with sampling, the specific
sample design is chosen before the census begins, reviewed by outside experts,
and made publicly available. In the final push, the efforts of district
managers and enumerators will be guided by the predetermined sample specifications
and will, therefore, be much less subject to arbitrary decisions by census
officials." Id. at 56.
13 The Act of Congress providing for the first decennial census used the
word "enumeration" in ways that plainly did not refer to "reckoning
up singly" or any other method of conducting a census. As we explain
in our opening brief (at 46 n.27), the opening sentence of that Act essentially
equated "enumeration" with "caus[ing] the numbers of the
inhabitants to be taken." Act of Mar. 1, 1790, ch. 2, § 1, 1 Stat.
101. The Act also required each marshal to take an oath pledging that "I
will well and truly cause to be made, a just and perfect enumeration and
description of all persons resident within my district, and return the same
to the President of the United States." Ibid. (emphasis added). The
requirement that the marshal "return" to the President the "enumeration
and description" of the people within his district in itself suggests
that "enumeration" was used there to refer to the final product
of the census--i.e., the population totals themselves-as distinct from the
process by which those totals were derived. That understanding is confirmed
by Section 3 of the Act, which provided for the Marshals to transmit to
the President only "the aggregate amount of each description of persons
within their respective districts." 1 Stat. 102 (emphasis added). Finally,
Section 1 of the 1790 Act stated that "[t]he enumeration shall commence
on the first Monday in August next, and shall close within nine calendar
months thereafter," 1 Stat. 101--language suggesting that the word
was used there to denote the conduct of the census, although not any particular
methodology. Contrary to the House's assertion (Br. 34), the 1790 Act did
not state that census takers were "to make an 'enumeration' of every
person within their districts." The Act nowhere used the word "enumeration"
to describe a process of identifying and making a notation of "every
person," one at a time.
14 We are aware of only one instance in which a delegate to the Constitutional
Convention appears to have alluded to the possibility that Congress might
seek to maintain itself in power by conducting the census in an improper
manner. Gouverneur Morris opposed any constitutional requirement that a
census be conducted at specified intervals on the ground that such a requirement
would "fetter[] the Legislature too much." 1 Farrand at 571. He
stated that "[i]f the mode was to be fixed for taking a census, it
might certainly be extremely inconvenient; if unfixt the Legislature may
use such a mode as will defeat the object: and perpetuate the inequality."
Ibid. (emphasis added). Morris was thus using the possibility of legislative
malfeasance in the conduct of the census not as a justification for limits
on Congress's authority over census methodology, but as an argument for
leaving Congress free to decide the timing as well as the mode of the census.
Morris's preference in that regard was based in turn on his desire to accomplish
precisely what the decennial census requirement ultimately forbade--i.e.,
Morris sought to maintain the northeastern States in power and to prevent
the western States from gaining control of the Congress even if future migration
gave the western States a majority of the country's population. See id.
at 583 (Morris states that "[i]f the Western people get the power into
their hands they will ruin the Atlantic interests.").
Edmund Randolph responded to Morris's argument by stating that "[i]f
the danger suggested by Mr. Govr. Morris be real, of advantage being taken
of the Legislature in pressing moments, it was an additional reason, for
tying their hands in such a manner that they could not sacrifice their trust
to momentary considerations." 1 Farrand at 580. In arguing that Congress's
hands should be tied, however, Randolph did not suggest the adoption of
constitutional constraints on Congress's freedom to conduct the census in
the manner it saw fit. Rather, Randolph supported Hugh Williamson's proposal
(a slight reformulation of Randolph's own earlier resolution) to require
simply that "a census shall be taken" at specified intervals.
Id. at 579. Randolph thus implicitly rejected Morris's suggestion (which
was in any event offered for tactical purposes only) that a constitutional
requirement addressed to the timing of future censuses would furnish illusory
protection if unaccompanied by constraints on Congress's freedom to direct
the manner of the census. The Convention also rejected that suggestion,
since it repeatedly approved language that would require a census to be
taken at specified intervals while leaving the manner of taking the census
to the discretion of Congress.