Census 2010 Information

This February, the inspector general of the Commerce Department released a finding that the Census Bureau has wasted millions of dollars just preparing for the 2010 census, including paying thousands of temporary employees who didn’t actually do any work. He warns that wasteful spending could increase greatly as the "headcount" — already slated for $15 billion — begins this month. Naturally, federal investigators still thought spending $133 million on promotional advertising to boost compliance was appropriately spent. But the real crying shame is that all this money is being wasted to collect information that the Census Bureau — being a creation of Congress — has no constitutional authority to collect. Although the current Census contains 10 questions0, only one is plainly Constitutional: The remainder of the questions — involving names, home ownership, telephone numbers, birth dates and race, are not mentioned anywhere among the enumerated powers given the federal government.

Here’s that "enumerated power" to enumerate the people: Art. I, Sec. 2, Cl. 3: Representatives and direct Taxes shall be apportioned among the several States … according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons … The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. … [emphasis added]

We see that the power to "enumerate" the people is granted so that certain taxes and representatives are fairly apportioned among the States — and so direct taxation without representation is prohibited. We also see that Congress has legislative power over the "manner" in which the enumeration is "made," but has no power to conduct enumerations more than once every ten years.

The word "manner" still means — even today — a "way or method in which something is done or happens." Congress, having the power to create the Census Bureau and the rules for conducting the census, has not yet been delegated power to change the substance or subjects of the census. What happens if a person refuses to answer questions related to subjects other than a literal headcount?

Title 13 U.S.C. §221(a) lays a penalty for refusing to answer census questions:

Sec. 221. Refusal or neglect to answer questions; false answers

(a) Whoever, being over eighteen years of age refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.

Americans have been prosecuted and fined under §221(a) when they refused to answer questions on constitutional grounds. Reviewing the case of one such peaceful rebel, the Second Circuit explained the government’s rationale for requesting information not otherwise authorized by the Constitution: In McCullough v. Maryland, 17 U.S. 316 (1819), the Supreme Court held that Congress had the authority to establish a national bank in the absence of a constitutional provision specifically setting one forth because the Constitution "empower[ed] congress to pass all necessary and proper laws for carrying its powers into execution." Id. at 324. The government argues that the Necessary and Proper Clause of the Constitution, together with the clear language of Article I, Section 2, Clause 3, which gives to Congress the power to conduct the decennial census "in such Manner as they shall by Law direct," gives to Congress the authority to collect demographic information about the nation's population in order to enable Congress to exercise its delegated powers to govern that population intelligently." United States v. Rickenbacker, 309 F.2d 462 (2nd Cir. 1962). [emphases added] So for the federal government and its court parasites, the simple word "manner" — meaning the way to make a headcount — has miraculously transformed itself into meaning permission to collect whatever information Congress thinks it needs to "govern … intelligently." Indeed, Congress desperately needs to "govern intelligently." A good ‘manner’ of doing that is to start by reading and understanding the limits of the constitution.

If the courts aren’t for you ... The Rickenbacker court also cited a district court case, United States v. Moriarity, 106 F. 886 (S.D.N.Y. 1901) as having long ago rejected the argument that the power of Congress conferred by Article I, Section 2, Clause 3 "is limited to a headcount of the population." It appears, then, from the relatively few cases that have addressed the matter, that the courts are unlikely to find any constitutional reason why they shouldn’t punish a person for "refusing" or "willfully neglecting" to answer all the Census questions.

So the question then becomes: what type of evidence is necessary, at minimum, for the government to charge a person over 18 with "refusing or willfully neglecting" to answer questions? 13 U.S.C. § 241 states:

Sec. 241. Evidence

When any request for information, made by the Secretary or other authorized officer or employee of the Department of Commerce or bureau or agency thereof, is made by registered or certified mail or telegram, the return receipt therefor or other written receipt thereof shall be prima facie evidence of an official request in any prosecution under such section. [emphasis added] Thus, in order to charge a person under § 221(a), the government must first show that said person received an official request. From all accounts, however, the Census is not being mailed to Americans by registered or certified mail, nor by telegram, but — if mailed at all — by regular mail. Without proof of delivery, mere claims by the Census Bureau that it mailed a form would not be sufficient evidence to establish the form had been received. Unless, of course, you sent it back. With only some of it filled in. As the Census Bureau itself says: "We can’t move forward until you mail it back." Then again, thousands of Census workers will be going door to door, leaving forms on doors, or giving them to whomever opens the door, or asking the questions in person. In the latter two instances, a census worker might be able to testify that they hand delivered the form to a person who received it from them, or that a person refused to answer their questions, in the event of a prosecution for not answering. Not in the habit of answering the door when strangers call? Then it’s likely you’ll miss out on that kind of fun. In conclusion, it seems an out-of-control Congress has created a dilemma for the person who wishes to obey the letter of the Constitution: Option one: shall I respond by answering only those questions authorized by the Constitution, and thereby open myself to the potential of prosecution and ultimately a fine?