Department of Commerce v. U.S. House of Representatives (01/25/1999)

By: Jini Ryan, Medill News Service

Questions presented

(1) Whether the U.S. House of Representatives is the proper legal party to challenge the Census Bureau's proposed use of sampling; (2) whether federal statutes governing the census permit sampling; and (3) whether sampling is constitutional.

Brief

""Houses of Congress rarely come to court. But this is an extraordinary case. The membership of the House must be reapportioned early in 2001, and the legitimate composition of this institution cannot be determined unless the Department of Commerce conducts a lawful enumeration.""

So begins the Supreme Court brief for the U.S. House of Representatives.

Along with all the ballyhoo accompanying the year 2000 comes the 22nd decennial census. Article 1, Section 2 of the Constitution calls for an ""actual enumeration"" of the population every 10 years to ensure that Americans are properly represented by state and by district in the U.S. House of Representatives.

Besides determining the population in the United States, the census is used to apportion among the states the 435 seats in the House of Representatives and to determine each state's share of annual federal aid and tax dollars.

According to the Census Bureau, traditional methods of determining the census have missed certain sections of society - usually children, renters, and racial and ethnic minorities. The House brief describes this as being a problem ""as old as the Republic."" Under traditional methods, after the mail questionnaires are received, enumerators are sent to households that have not responded.

Sampling is an alternative technique whereby a representative portion of the population is studied to obtain information that is too expensive to acquire by interviewing every member of society. With sampling, as proposed by the Census Bureau for the 2000 census, enumerators would follow up with a random sample of non-respondent households, ""just enough to ensure thatÉ90 per cent of the households in each census tract will have been enumerated."" The population of these non-respondent households would be estimated based on the sample group.

Critics believe sampling will artificially increase the number of minorities and city dwellers. Further, there is a fear that the controlling party in government will corrupt the results of the census to stay in power.

The Clinton administration has proposed a ""dual estimation system"" (DES) to prevent an undercounting of minorities by adjusting the figures obtained.

The 1998 Appropriations Act required the Census Bureau to prepare two plans: one using the traditional method of head counts involving mailed forms and personal visits by census-takers, and another utilizing sampling. This act authorized any litigation by the House and private individuals.

A special three-judge panel ruled unanimously on August 24, 1998, that the House had standing to bring the case since the bureau's plan violates the Census Act, a 1957 law enacted to govern the administration of the census. The Act declares that sampling can be used if it is feasible, but that it cannot be used for ""the determination of [the] population for the purposes of apportionment of Representatives in Congress.""

Because the three-judge panel ruled that sampling was illegal, it did not address whether the Constitutional mandate that Congress conduct an ""actual Enumeration"" of the population every ten years ""in such Manner as they shall by Law"" can be met by using sampling.

The Census Bureau must know by March 1999 which of the two plans will be used for the 2000 census to be able to execute the project on time.

The U.S. Supreme Court noted probable jurisdiction on Sept. 10, 1998, consolidated the case with Clinton v. Glavin, 98-0564, and agreed to give the cases expedited consideration.

On Jan. 25, 1999, a divided Supreme Court held that statistical methods cannot be used in census taking to adjust for an expected undercount of minorities. In a 5-4 ruling, the majority concluded that federal law ""directly prohibits the use of sampling in the determination of population for purposes of apportionment,"" Writing for the Court, Justice Sandra Day O'Connor noted that when the census law was amended in 1976, ``At no point...did a single member of Congress suggest that the amendments would so fundamentally change the manner in which the (Census) Bureau could calculate the population for purposes of apportionment."" Joining Justice O'Connor were Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

The government's census plans were challenged by taxpayers in six states-- Connecticut, Massachusetts, Minnesota, Missouri, Pennsylvania and Wisconsin --who alleged that adjusting the census would cost them money and political power. House Republicans also sued. The Supreme Court said the taxpayers had legal standing to sue, but dismissed the Republicans' appeal.