Tag: Constitutional Issues

Reason Prevails (At Least for Now)

Census Project Co-Director Terri Ann LowenthalBy Terri Ann Lowenthal

Sometimes, I just don’t get stuff.

Take, for example, the decision to schedule a vote on H.R. 1078. I muddled through last week with my lingering census headache, trying in vain to divine why a House committee — two years after it examined the pros and cons of making American Community Survey (ACS) response voluntary and heard only a chorus of cons (except from the sponsor of a bill to do just that) — decided to move the bill out of committee anyway.

I considered the arguments against the ACS.

The survey is unconstitutional. Which, I agree, would be a really bad thing. Except the U.S. Supreme Court ruled in 1870 that Congress has the constitutional authority to require both a population count and the collection of additional statistics in the census. (The Legal Tender Cases, Tex. 1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287) Many federal cases have since described the census as more than a simple headcount, from the very first enumeration in 1790. I think I’ll go with the Supremes on this one.

Speaking of the first census: that’s when James Madison (then a mere member of Congress) made sure that the first Census Act allowed the collection of “useful” social and economic information to support decision-making and resource allocation. A Founding Father seems like a credible source for original intent, don’t you think?

The survey poses an unreasonable burden on the public. Which also would give me pause. Except that only 2.5 percent of U.S. homes receive the ACS each year (and some of those are vacant). The ACS only gathers information needed to divvy up federal grants prudently, implement federal programs and enforce federal laws. I’m going out on a limb here, but if Congress enacts those laws and programs, isn’t it a tad illogical to turn around and say we can’t collect the data? (See, this is why I’m plagued with headaches.)

Speaking of public burden: I can’t quite grasp how making survey response optional addresses the problem. You see, both Census Bureau testing and Canada’s experience with its first voluntary census long form demonstrated that more households would need to get the ACS in order to overcome a precipitous drop in response rates and maintain a representative sample to produce valid estimates. Seems like more of the public would be burdened. Just sayin’.

I think the Census Bureau is taking congressional concerns about response burden seriously. It’s doing a comprehensive review of ACS topics and requiring federal agencies to justify their need for the data under federal law or regulation. The wording of questions can be problematic, too. Would you believe that some, er, younger people don’t know what dial-up Internet connection is? (Geez, I can’t be that old.) And some survey recipients raise a skeptical eyebrow when asked what time they leave the house and return home from work. Yes, commuting flow data are essential for transportation planning at all levels of government, but maybe there’s a way to pose the questions that doesn’t conjure up images of burglars waiting for a chance to strike. I’m happy to report that the Census Bureau is addressing these issues and more before it submits 2020 Census and ACS content and question wording to Congress in 2017 and 2018, respectively, as required by law. (Ummm, yes, Congress has signed off on all of the questions currently in the field.)

We can’t be sure that personal data will remain confidential. You know, we can’t be sure of anything in this world (I know, except taxes and death). We can only consider the record and the odds. Here’s what we do know. The confidentiality safeguards in the Census Act (13 U.S.C. §9, §16, §214) are the strictest on the books. The Census Bureau can’t reveal your individual responses to any other agency or entity, for any purpose — not law enforcement, not legal proceedings (criminal or civil), not tax collection, not even national security — period. Punishment for breaching those protections is steep. The Census Bureau has never, to my knowledge, violated the terms of its authorizing statute.

After census stakeholders raised a collective chorus of objections (again!) to making the ACS a voluntary survey, the House Oversight and Government Reform Committee cancelled the vote on H.R. 1078. Sometimes, reason prevails.

And sometimes the respite is brief. Another mark-up or an appropriations amendment could be just around the corner. At least we’ll be armed with the facts.

The American Community Survey: Blessed by the Founding Fathers

by Terri Ann Lowenthal

I’ve been losing sleep ever since several members of Congress (including a former judge!) posited at a congressional hearing last month that the Census Bureau was overstepping constitutional bounds by requiring people to answer questions on the American Community Survey (ACS).  The ACS relieved the decennial census of its long-form burden after Congress urged the Census Bureau to streamline the decennial count and provide policymakers with more timely information.  But more on that in a moment.

Now, I’m an advocate of informed decision-making.  I think we Americans have a duty to help our nation understand its collective condition and shared future direction.  But an unconstitutional government intrusion into our private lives?  Not on my watch.  The idea that our census agency has been violating fundamental tenants of our treasured founding blueprint since the nation … well, became a nation … has been keeping me up at night.

Fortunately, none other than “Father of the Constitution” James Madison has come to my rescue.  When the House of Representatives debated the very first census bill in 1790, this founding patriarch and primary author of the Bill of Rights observed that lawmakers now had “an opportunity of obtaining the most useful information for those who should hereafter be called upon to legislate for their country if this bill is extended so as to embrace some other objects besides the bare enumeration of the inhabitants; it would enable them to adapt the public measures to the particular circumstances of the community.  In order to know the various interests of the United States, it was necessary that the description of the several classes into which the community was divided, should be accurately known; on this knowledge the legislature might proceed to make a proper provision for the agricultural, commercial, and manufacturing interests, but without it they could never make their provisions in due proportion.”  (As cited in Government Accountability Office, Legal Authority for American Community Survey, B-289852, April 4, 2002)

I couldn’t have said it better myself (though heaven knows I’ve tried).  But let me translate into 21st century English.  The census gives us a chance, Madison said, to collect data that lawmakers can use to make informed decisions that meet the needs of the nation’s people and communities — decisions related, for example, to the agricultural, business, and manufacturing sectors.  A range of data beyond the number of people in each household, which backers of a voluntary ACS suggest is the only constitutionally permissible purpose of the census, would ensure that Congress allocated resources based on actual conditions.  Imagine that!

As for the ACS, it was Congress, starting in 1991, that not-so-gently nudged the Census Bureau to give up the traditional vehicle for collecting demographic and socio-economic information — known as the “long form” — and to continue its “embrace … of other objects” (to quote the oh-so-eloquent James M.) on a more frequent basis from a sample of households spread out across more years.  Congress never suggested that the ACS would not continue to be a part of the census, perhaps knowing full well that lawmakers had tied half a trillion dollars annually in domestic program funding to the results.

Of course, Congress has been known to pass legislation that doesn’t quite pass constitutional muster.  That’s why we have the Supremes, who determined in 1870 that Congress has unquestionable power to require both a population count and the collection of additional statistics in the decennial census.  (The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287)  It’s just what our fourth president envisioned to help the legislature, of which he was then a part, make wise decisions.  Whew!

I’m sleeping better already.  Sweet dreams!

The Responsibilities of Being American

by Terri Ann Lowenthal

Three lawmakers argued unmindfully,
“We view government surveys unkindly.
Census law shouldn’t force
Us to be a data source,
And we’d rather make policy blindly!”

Okay, maybe I have too much time on my hands. (Plus, I’m trying to get in the St. Patrick’s Day spirit.)

But at a hearing last week, a House subcommittee considered a bill (H.R. 931) to make response to the American Community Survey (ACS) voluntary. The consequences for the collection and publication of useful data about the nation’s economic and social conditions and progress could be catastrophic. And, I would venture, not well considered by the idea’s proponents.

Granted, the millions of Americans not surrounded daily by the wonders of census data are probably saying, “Well, that makes sense!” Who wants to answer a survey with 50+ questions about themselves and their families, their homes and incomes, and their commuting habits? (Most households will never have the honor; the survey is sent to only 3.5 million addresses a year. Even over a five-year period, fewer homes must answer the ACS than were required to answer the census long form it replaced starting with the 2010 Census.)

For starters, all public witnesses at the hearing made strong cases for keeping ACS response mandatory, in order to maintain the quality and usefulness of the vital data we get from the survey. We’re talking about representatives from the conservative American Enterprise Institute, the business-oriented National Association of Realtors and the nonprofit Greater Houston Partnership (the bill’s sponsor is from the Houston area).

I visited Houston’s website. The city boasts a “thriving business economy” and directs people interested in Houston’s business and trade to the Partnership. The economic development group’s lead researcher testified [.pdf] that business decisions “are now data driven” and called the ACS “one of the most important tools in our kit” to attract business investment from around the globe. And why must response to the survey remain mandatory? Because, as the Partnership and other stakeholders pointed out, mail response to a voluntary survey would drop dramatically; to gather enough responses to maintain data quality, the Census Bureau would have to increase the sample size (more households would get the darn survey) and spend more money (30 percent more, tests have shown) to collect data by telephone and in-person visits.

Did someone say more money? Didn’t Congress just whack the Census Bureau’s budget the past two years? Without that unlikely additional funding, economic development agencies across the country can kiss their useful toolkits goodbye. That doesn’t sound like a very pro-business and pro-economic growth strategy to me.

Committee Chairman Darrell Issa (R-CA) and Subcommittee Chairman Trey Gowdy (R-SC) questioned the constitutional authority for gathering any information beyond the number of people in a household, used to divvy up seats in the House of Representatives after each decennial population count. Let me make this easy: Article I, §2, giving Congress responsibility for taking a census “in such Manner as they shall by Law direct,” combined with Article I, §7, giving Congress the authority to make laws.

Laws such as Title 13, U.S.C., §141(a), in which Congress authorized the Secretary of Commerce to conduct the census “in such form and content as he may determine, including the use of sampling and special surveys … the Secretary is authorized to obtain such other census information as necessary” and the related §141(g), defining the ten-year census as one covering “population, housing, and matters relating to population and housing” (all emphasis added). And §182 of the same title (known at the “Census Act”), allowing the Commerce chief to conduct surveys producing “annual and other interim current data” between censuses. Don’t forget §221, requiring people to respond to the census and to annual and interim surveys.

Then there are the hundreds of federal laws allocating almost half a trillion dollars a year (yes, you read that correctly) based directly or indirectly on data from the ACS, to states and localities for education, road improvements, mass transit, physical and mental health services, rural businesses and farm labor housing, affordable housing for the elderly and people with disabilities, economic development, and energy improvements. Did I mention outreach to disabled veterans? (Yes, I’m shameless. But I didn’t pass these laws. Congress did.)

Rep. Ted Poe (R-TX), sponsor of the voluntary ACS bill, is a former judge and prosecutor with a deep interest in preventing and addressing the terrible consequences of crime. In 2008, he noted that the government spends billions of dollars on the criminal justice system. “The cost of crime is not cheap,” the congressman said, “… [but] the price is worth it to ensure order, safety, and appropriate punishment for those who fail to follow the law.” That year, the State of Texas received $32 million in federal taxpayer dollars to help keep communities safe — based on ACS data alone.

Are Chairmen Issa and Gowdy suggesting that Congress made all of these laws, and that the Census Bureau (and its historical equivalents, some of which were temporary committees Congress established every 10 years to oversee the enumeration) gathered information similar to the content of today’s ACS in violation of the Constitution since the first census in 1790? Boy, I sure hope not! Quelle horreur!

Speaking of French, Canada decided to do something similar a few years ago, relegating its census long form to a voluntary survey. The country’s head statistician resigned in protest.

Finally, the privacy concerns. I understand the objection: Government shouldn’t have a right to request personal information. Except maybe our income, which we are required to report to the IRS annually. But the Census Bureau doesn’t have a right to ask about it … anyway, as I was saying … Rep. Gowdy said ACS data might be useful, but Uncle Sam “does not have an overriding state interest to force people to divulge their private matters.”

Fortunately, the Census Bureau does not want a dossier on every American. It does not do anything with your personal answers. It takes our responses and turns them into a statistical portrait of our nation, our states, our cities and communities. To help us understand collectively where we came from and where we are going. If we’re headed into a ditch, I want to know in advance. You know, to prepare. And maybe turn in a different direction.

Yes, we Americans have a right to privacy. But we also have responsibilities. We have a shared history and will have a shared future. I don’t want to live in a country that drifts along without transparent, objective benchmarks to guide it. I want to know that my elected officials have a reason for making the decisions they do. I want my tax dollars aimed at neighborhoods that need and deserve the assistance. I want my city and county to have data that will attract new investment and job opportunities.

I want information that lets me hold my national, state and local government officials accountable. To me, that’s the best part about being an American. But I can’t do that if I don’t do my part. And my neighbors don’t do theirs.