A couple of days ago, I happened to be linked to an opinion piece written by Michael Barone of US News and World Report.  In his writing, Mr. Barone holds up an argument, which I suppose he tripped over in his wandering around the Internet, which seems to imply without outright stating the author’s belief that the White House cannot constitutionally oversee the Census.  My skill at reading tea leaves is a bit on the weak side on this issue, but the impression I get is that this issue is going to linger for a while before finally being put to rest.  What should be clearer than Mr. Barone or the argument he discovered suggest is that the propriety of White House involvement in the Census is entirely a policy concern.  There is nothing unconstitutional to be found here.

The argument cited by Mr. Barone makes much ado about whether it is the President or Congress with authority over the Census.  As the argument goes, “the Constitution did not place the census function in Article II – the Executive branch but in Article I – the Legislative branch, it is not at all within the President’s reach unless the legislature places it there.” (emphasis original) The problem with this line of reasoning is that within the President’s reach is exactly where Congress chose to place the Census.  In particular, the Census is run by the Census Bureau, which is part of the Department of Commerce.  The Department of Commerce is the department run by the Secretary of Commerce.  The Secretary of Commerce, of course, is a member of the President’s Cabinet.  The Census Bureau, therefore, is within the Executive Branch.

To make the point even more strongly, consider the argument’s statement that “Director of the Census … shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary.” (internal quotation marks omitted) (citing 13 USC 1.21) This passage establishes a line of authority from the Secretary of Commerce to the Director of the Census.  The argument then goes on to note that there is “[n]o president mentioned.”  However, that note fails to consider the law in context.  The President certainly can issue orders to the Secretary, including an order that the Secretary order the Director to do something.  It is the merest of formalism to think that the President could not issue an order to the Director directly.

The argument concludes by telling us that “[t]he Secretary of Commerce does not even report his findings to the President, but rather is instructed to ‘publish’ them.”  Unfortunately, this is simply wrong.  According to the Census Act, “[t]he tabulation of total population by States … 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. Using this information, the President must then transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled.” (Department of Commerce vs. US House) (internal quotations omitted, citations omitted, emphasis added)  The inescapable conclusion is that the President is involved in this process on the basis of specific instructions of law.

Of course, none of this is to say that the President has the authority to declare that the Census be conducted in a way other than what the law allows.  He is still bound by the “[m]anner” described “by [l]aw” (US Const., A1, S2) and it is certainly an important exercise to ensure that he does not step outside the law.  However, his involvement alone is not sufficient to form the basis of a legal complaint, and it certainly is not unconstitutional.

Tags: census, constitution