White House Census Power Grab May Violate the Constitution

By Michael Barone, Thomas Jefferson Street blog

In an earlier blog post I noted that Republican Judd Gregg, if he is confirmed as secretary of commerce, will have jurisdiction over the Census Bureau. Some Democrats noticed, including, I suspect, White House Chief of Staff Rahm Emanuel.

So now it's been announced that the White House will oversee the Census. Of course, the president has ultimate authority over cabinet officers (that's the unitary presidency theory that Democrats hated up to but not beyond January 20), and I am not prepared to charge that Emanuel or anyone else in the White House is determined to diabolically cook the Census books in search of gains for the Democratic Party or the Black or Hispanic caucuses. And we have the integrity of Census statisticians to rely on; they favor sampling on grounds that commend themselves to academic statisticians, but also have shown, in the 2000 Census, that they will adhere to those standards in the face of political pressures to the contrary. Nonetheless, as someone who got great joy when my parents in 1951 (when I was 7) bought a set of encyclopedias with the 1950 Census figures (I had only had access to the much outdated 1940 Census figures), I'm going to keep an eye on this one.

Here's an argument that it's unconstitutional for the president to take over the Census from the secretary of commerce. It goes like this: Article I, Section 2 of the Constitution provides for an "actual enumeration" and a statute passed by Congress provides that the duties under this clause are to be performed by the secretary of commerce. Article I (as Joseph Biden didn't know in debate) is about the legislative, not the executive branch. Hence, it is argued, the president can't substitute a sampling for the enumeration required to be done by the secretary.

However, it is undoubtedly true that the president can fire the secretary of commerce for any reason, including failure to conduct the Census the way he wants the Census conducted. An acting secretary could conduct the Census the way the president wanted, even if the Senate refused to confirm a new secretary of commerce who would. And who would have standing to challenge the constitutionality of the Census taking? Perhaps the state that, under the statutory formula apportionment House seats among the states, got the 436th rather than the 435th seat, i.e., came close to getting another seat but didn't get it.

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