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Is a White House take over of the census constitutional?

MSNBC reports that:

The Capitol Hill publication Congressional Quarterly yesterday reported that the White House, responding to minority groups’ concerns about Gregg’s commitment to funding the census, has decided to have the director of the Census Bureau report directly to the White House.

Why am I expecting ACORN to get the census contract?

In Article I, Section 2 the US Constitution orders that “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.”

The Congress, by law directed that:

“The Secretary [of Commerce] shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary to carry out such functions and duties, and may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of Commerce as he may designate.”

As I read it, the Director of the Census must, by law, be within the Department of Commerce and under the direction of the (Senate approved) Secretary of Commerce who then reports to the president. Am I missing something?

Correction: From reading through Title 13, Chapter 1 it appears obvious to me that the POTUS has no role in the census whatsoever beyond, with Senate approval, selecting the Secretary of Commerce and, also with Senate approval, selecting the Director of the Census who shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary.” Hhmmm… No president mentioned.

The Secretary of Commerce is the only authority the law recognizes. Since as commenter Laird points out, 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.

I think that interpretation is supported by phrasing such as this taken from Subchapter 1 section 9 “No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall …”

The Secretary of Commerce does not even report his findings to the President, but rather is instructed to ‘publish’ them. It looks quite clear to me that any incursion by the White House after those two Senate approved appointments is clearly against the law.

42 comments to Is a White House take over of the census constitutional?

  • I think, well, basically we are going to be screwed for our own good so many ways in the next four years that the USA is going to walk bow-legged for the rest of the century. This is just the foreplay, intended to gather and enumerate the Faithful who’ll help hold the rest of us down.

    The older I get, the more I appreciate the old saying: “By then, I’ll be safe six feet underground.”

  • PersonFromPorlock

    I’m pretty sure the Obama administration will argue that the Secretary’s seconding control of the census to the White House doesn’t remove the Office of the Census either from the Department of Commerce or the Secretary’s control: he’s simply delegating authority, not responsibility.

    Other than that, ACORN, yup, you betcha.

  • Midwesterner

    But even that would be a violation, I think.

    may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of Commerce as he may designate.

    I don’t see any legal way, barring other laws I don’t know about, that they can avoid the process of ordering the Secretary of Commerce to order the Director of the Census. The Director of Census is required to obey the Secretary of Commerce so even if he is an Obama sock puppet, the Secretary of Commerce needs to be cooperative.

    I don’t think it was lost on the congress that passed this law that the Secretary of Commerce has to be approved by the Senate and that congress can have some control on the process via that connection. One more reason to repeal the XVII amendment, I guess.

  • Larry Sheldon

    Yeah. You are missing someting.

    “I won.”

  • Laird

    Nope, Midwesterner, you’re absolutely correct; the Census falls squarely withing the jurisdiction of Congress. If its mere inclusion within Article I didn’t make that point clear enough, how about the following language: “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.” [My emphasis.]

    You’re also correct that the 17th Amendment was the beginning of the downward slide. Any successful repeal of the Electoral College system of presidential selection (as has been seriously discussed in recent years, including [IIRC] by some otherwise sensible people on this site) would represent its completion.

    Unfortunately, Larry is also correct. We’re screwed; relax and enjoy it.

  • Am I missing something?

    Other than the fact that the oath sworn to “uphold and defend the Constitution of the United States” is perhaps the second-most violated oath after the one swearing to “forsake all others,” no. You’re not missing a thing.

  • F

    I cannot tell you how glad I am you’re posting on this. I’m very worried by the prospect of the census (and attendant Congressional districting, distribution of funds, etc.) being taken over by the White House (and, as has been suggested, by ACORN). I’m outraged and frightened by the prospect, and I invite you to take a guess how this would have been received by the national press if it had been suggested by the Bush White House. Sheeehs! F

  • Some Guy

    Add that to the list of powers shirked by the Congress and assumed by the executive branch. Of course, there are a few that are somewhat more troublesome, like letting the president send our troops into battle without a declaration of war.

  • PapayaSF

    I think the real fight will come over the word “enumeration.” For years Democrats have been claiming that the census undercounts minorities, the homeless, etc. many of whom live in Democratic congressional districts. There will be a push to change census rules to allow for estimating “undercounts,” thus inflating the number of Democrats in the House. I’ll bet they’ll also try to get voting rights for representatives from D.C., Guam, etc.

  • Subotai Bahadur

    The Constitution is a dead letter, as far as the regime is concerned. Law is whatever the Left wants. The Executive has no respect for any law or the forms thereof. The Legislative Branch is in the hands of the Left, and while they make law, they do not respect it. Their sole goals are graft and kickbacks, combined with an avoidance of responsibility for anything. The Courts are controlled by the Left, albeit with some Conservative opposition. How long has it been since it has been possible to go into a court with any confidence that the law will prevail over the whims of the judge? Since when has any court held that a Democrat is subject to the same law that those not of the ruling caste are subject to?

    If a Republican could gather up his manhood, and try to take the matter to court, what are the odds that the courts would hear the case? And if they heard it, what are the odds that they would rule against Obama? And if they did, what are the odds that he would comply?

    The real 4th branch of government, the various Administrative Boards and Courts that deal in red tape and bureaucracy outside the judicial system, is run by Leftists and is determined that the State is the font of all knowledge and power.

    The supposed check and balance provided by the news media disappeared some years ago. The main stream media is nothing more than a cheering section for the State, and given the amount of bailout money going to broadcast media owners, and the expected government bailouts for print media; they will soon be wholly owned government subsidiaries.

    The drumbeat is getting louder in Congress, as soon as the “Loot the Treasury” Bill is signed, to begin hearings into right-wing bias on the radio and online. Samizdata may not be allowed into the US for much longer if the Democrats have their way, along with any other sites to the Right of Rosa Luxemburg. I note that Google, who helps the Chinese government manage the “Great Firewall of China”, is a staunch supporter of Hussein Pasha and has been caught repeatedly ‘editing’ postings critical of him. One can assume that there is a large and lucrative contract with the Federal government for a new Firewall in their future.

    There is nothing that is beyond the power of B. Hussein Obama to attempt to enforce in this country. Whether he will be allowed to maintain it, is the subject of much conjecture outside the Beltway. But for now, Force Majeure trumps both jus scriptum and jus commune.

    Subotai Bahadur

  • Brown Line

    The census is more about distributing money than it is about congressional apportionment. The census decides how many congressional districts a state gets, but drawing district lines within the states is the states’. And no amount of sleight of hand will disguise the broad demographic trends: population growth in Texas and the middle South; population loss in New York, Michigan, and California. The push, rather, will be to increase the amount of money apportioned for people – real or imaginary – who are Democratic clients.

    But Obama’s attempt to seize control of the census is just one more step in what I call the “Cook Countification” of the nation: a kinder, gentler Leninism in which party and government are intertwined and together dominate the economy under the direction of a benevolent leader. If you like Chicago politics and governance, then you’ll just love what Obama is building for the USA.

  • RRS

    There is already a bill part way through Congress making the representative of D C a voting memeber of Congress, in direct violation of the Constitutional provisions establishing the Federal District. That is, D C is NOT a State.

    In return Utah will get one extra rep. How’s that for compromise?

  • Tully

    I noted the unconstitutionality of this two days ago. I’m very glad to see I’m not the only one paying attention. Shout it from the rooftops!

  • Diggs

    So, who’s gonna stop him?
    In your dreams maybe.
    Keep dreamin.

  • nim

    I’m seriously disturbed by this. Yes, ACORN will get the contract, and this president has been one busy bee. With the exception of keeping Gates literally everything he is doing is striking me as consolidating his power and his party’s place. This man does not want to “lead.” He wants to “rule.”

  • Ken Hahn

    President Obama does not recognize any limitations on his power and the spineless majority in Congress is unlikely to recognize any so long as their earmarks are approved. The lapdog media will never report anything that would limit “progress”. The Constitution is clear and it makes no difference whatsoever. Either the courts will step in with a solution that enhances their already too great power or Obama will get away with it.

    This administration combines the competence of Jimmie Carter with the integrity of Bill Clinton. It is going to be a very long four years.

  • guy herbert

    Why am I expecting ACORN to get the census contract?

    Because you are mistaking an excutive reflex to centralise power without regard for party with a partisan action merely because it is the action of a politician?

    Arrangements are being made for UK census data to be passed to the Whitehouse, too, and there are no votes in it.

  • Gary Rosen

    “reflex to centralise power without regard for party”

    So you really believe this is “without regard for party”. I’ve got a nice bridge to sell you.

  • Real American

    just like the rest of the Constitution, the liberals will find these sections to be optional.

  • Dandapani

    According to BO, the Constitution is nothing but a document of Dont’s. He wants to remake the Constitution of Do’s. One can only imagine all the fun the Government doing things to us. Over and over and over.

  • BumperStickerist

    On the plus side, if ACORN does conduct the census there will be an additional 274 members in the House of Representatives.

    Which will make things a bit cramped when Congress meets.

  • comatus

    Gosh, what kind of lily-livered fool would take the Commerce job under these conditions? Oops.

    One way to remove the overcount impetus from Census would be to use other, more flexible demographic “estimates” for largessification. There would still be political pressure, sure, but it would be on GPS, Arbitron and the post office. It’s a stimulus.

    nim, don’t get into a sugar-coma over Gates. He’s only there because he’s so good at deplaning those big meanies in the Air Force. Sooner or later he’ll mention his Navy dreams, and then he’ll be history. Don’t you envy the suit they send to re-gut the Corps?

  • RRS


    The rise of factions within factions.

    The continuing demise of the previous functions of political “parties.”

    Along about March 20011 (at least), things will have begun to fall apart in this forming administration, initiated by internal tensions principally, but possibly accelerated by an “unanticipated” but clearly foreseeable event (Iran?) (Taiwan?) (catastrophe of nature on our continent?).

    Government by Executive Manipulation (of personalities) simply will not work.

    As to “crowding” in Congress, the number is fixed; it is a matter of apportioning representation. Given the mobility of populations, and the growth of ex-urbia (fringe cities) manipulation by census may not be very effective politically.

  • Vinny Vidivici

    Thanks for posting on this.

    ” . . . minority groups’ concerns about Gregg’s commitment to funding the census.”

    As opposed to our concerns that the same groups which have been busy undermining the electoral process through fraudulent voter registration, fraudlent voting and open encouragement of foreign campaign contributions might subvert the census as well.

    Like ‘voter supression’, ‘stifling dissent’ and ‘shredding the Constitution’, assuring accurate minority representation in the census is another one of the Left’s straw bogeymen. Misdirection aimed at keeping political opponents on the defensive, the faithful agitated and supplicants hopeful, while distracting attention from its ceaseless, whatever-it-takes campaign to dominate and destroy the society it loathes.

  • Ennis

    By then Alcee Hastings H.R.645 will have passed. Under that Obama can declare a ‘national emergency’ without having to consult anyone (including congress) and take over all federal, state, local, territorial and tribal governments. If any oppose there will be at least six ‘detention centers’ already built to put them in.

  • Kim du Toit

    “Is a White House take over of the census constitutional?”

    No, it isn’t.

    But liberals always find ways to subvert the Constitution, through narrow, lawyerly interpretations.

    Excuse me, I’m off to sharpen my bayonet.

  • K

    I believe the number of Representatives is set by a law passed by Congress itself. They can expand or even contract as long as it results in roughly equal representation by population.

    Ditto for letting Representatives from DC and Territories vote.

    I have never seen anything to the contrary about the size and composition of the House. But if that is wrong I would appreciate a citation.

    The power of the Census lies, IMO, in the fact that it is vague yet totally controlled by Congress and statute.

    My reading says the courts cannot intervene. Others will differ about that.

    With O as President and the present Congress I see few limits in the antics possible for manipulating the Census enumeration and funding. The media will back them 110%.

  • Laird

    Ennis, thank you for the citation to Alcee Hastings'[1] bill (you didn’t provide a link, so I had to look it up, but for anyone interested here it is). It’s a short bill, but chilling.

    On its face it seems pretty benign. The principal purpose cited is to prepare six locations “capable of meeting for an extended period of time the housing, health, transportation, education, public works, humanitarian and other transition needs of a large number of individuals affected by an emergency or major disaster”. Sounds OK, doesn’t it? Temporary housing for Katrina-type victims, etc. However, purpose (4) provides that the locations will be available “to meet other appropriate needs, as determined by the Secretary of Homeland Security.” Hmmm, I wonder what those could be?

    Then the bill goes on to require that these “national emergency centers” (carefully not called “detention centers”) be located on military bases and, if possible, on closed military installations. In those cases the facilities are to be transferred to the jurisdiction of Homeland Security. [See sections 3(d) and (e)] In other words, carefully out of sight of everyone, including even the military.

    These facilities are to be used in the event of an “emergency” , which is defined (by reference to a separate statute, 42 U.S.C. 5122) as any occasion or instance for which, in the determination of the President, Federal assistance is needed . . . .” [my emphasis].

    I’m feeling better already.

    (FYI, on Friday this bill was referred to the Subcommittee on Terrorism, Unconventional Threats and Capabilities within the House Armed Services Committee. An odd place to put it, don’t you think?)

    [1] Alcee Hastings is the only federal judge to be impeached and removed from the bench in the 20th Century. It says a lot about the Florida populace that they would elect, and continue to re-elect, this criminal to Congress.

  • watcher in the dark

    In the next four years we will have a new phrase on our lips: “It’s just Obama.”

    The question will be whether it is complimentary or derogatory.

    Currently I’m thinking the latter…

  • Laird

    A little OT, perhaps, but New Hampshire (and, I’m told a few other states as well) is now considering a Concurrent Resolution “affirming States’ rights based on Jeffersonian principles”. It’s interesting reading. I don’t think it goes far enough in some areas, but it affirms the “compact” theory of the Constitution and, at the end, lists several actions which, if taken by the national government, would “constitute a nullification of the Constitution”. Among these are “Establishing martial law or a state of emergency within one of the States comprising the United States of America without the consent of the legislature of that State” and “Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition”. All in all, pretty incendiary stuff. I’ll be following this closely. (I also know that it has been sent to my state representative, who is considering offering a similar resolution is SC.)

  • Paul Marks

    Of course what Comrade Barack Obama is doing is against the law – and therefore, as you have cited in this case, unconstitutional.

    Does anyone think that N.B.C. (or the rest of the establishment media) will report it that way?

    And of course the federation of far left (indeed Marxist) “Community Groups” that make up ACORN will be involved – Comrade Obama was a trainer for these thugs in Chicago (although he did not have the guts to go on any jobs himself).

    Indeed ACORN has already been getting millions of Dollars of the TARP money (thanks to Bank of America) – but only people who go on to M. Malkin’s internet sites or watch a few Fox News shows (such as the Glenn Beck show) know this. And such people are hardly likely to vote for Comrade Obama anyway.

    However, Judd Greg will not object to any of the above.

    He is what people call a “nice Republican” – or what I call “a moron”.

    People objected when I called President Bush that – but I did not mean it as some sort of curse word. I meant that I looking at a man who had before him evidence so basic that a young child would understand it – and yet the man did not understand.

    The Bush Administration handed out money to leftist groups (such as Planned Parenthood) every year – and every year tried to cooperate with the most fanatical leftists. Ignorning all the information that I know they were given (both by Senators and Congressmen and people at various institutes) showing that the people they were trying to cooperate with had nothing but hatred for the United States.

    Only a few weeks ago President Bush was doing his best to help Comrade Obama – as if this was a decent man who had the best interests of the United States at heart.

    People like Judd Greg and George Bush are not “RINOs” – that implies some dishonesty.

    No I stand by my description.

    They are people who do not see what someone of average intelligence (or even below average intelligence) would see at once – given all the information they have.

    In short they are morons.

  • Withheld

    One should note that the Census Bureau takes on duties beyond just that of the “Decennial” though I’m sure they would love to estimate the under-counts… i would think to do this they’d have to use census data or establish a method that is not likely yet in the works so it would be my impression that it would be difficult to do for 2010 without a plan in hand. I’d worry more about influencing the American Community Survey than 2010 explicitly.

    The other issues may have to come to data analysis and reports. The Census undertakes some economic work (at least that which is not covered by the Bureau of Labor Statistics). It also undertakes the analysis of Poverty surveys and Health surveys but I forget the exact acronym… let your mind wander on that one.

    My personal worry, and it could very well be personal in the future, is that pressure may be brought to establish certain results. Granted you would see that in re-defining certain items from the technical standpoint. Changes of definitions will do a bit on its own. I’d be worried about further pressure if those do not provide enough gains.

    The answers from the census should shape public policy… public policy on the other hand should not shape the answers. The Census Bureau like any other statistical organ should be in the business of speaking the clearest truth and facts about our nation as it can within regard for the ability to collect data to ascertain those facts. While public policy will, undoubtedly, shape the census from president to president the more independence given in terms of being accurate from a technical and mathematical standpoint the better.

    In an ideal world it would be that the government asks a question and the Census Bureau would be able to provide an answer within its purview (which is nothing more to say that we know nothing about rockets but can answer something about the trend of income in Yakima.)

    does not work for the government right now

  • Ted

    Since Obama’s earnest drive to convince the nation to weaken its economic strength through redistribution as well as weaken its national defense, COUPLED WITH HIS UNPRECEDENTED WHITE HOUSE TAKEOVER OF DECENNIAL CENSUS TAKING FROM THE COMMERCE DEPARTMENT, has confirmed the very threats to our Republic’s survival that the Constitution was designed to avert, it no longer is sustainable for the United States Supreme Court and Military Joint Chiefs to refrain from exercising WHAT IS THEIR ABSOLUTE CONSTITUTIONAL DUTY TO DEFEND THE NATION FROM UNLAWFUL USURPATION. The questions of Obama’s Kenyan birth and his father’s Kenyan/British citizenship (admitted on his own website) have been conflated by his sustained unwillingnes to supply his long form birth certificate now under seal, and compounded by his internet posting of a discredited ‘after-the-fact’ short form ‘certificate’. In the absence of these issues being acknowledged and addressed, IT IS MANIFEST THAT OBAMA REMAINS INELIGIBLE TO BE PRESIDENT UNDER ARTICLE 2 OF THE UNITED STATES CONSTITUTION. Being a 14th Amendment ‘citizen’ is not sufficient. A ‘President’ MUST BE an Article 2 ‘natural born citizen’ AS DEFINED BY THE FRAMERS’ INTENT.

  • David

    Mr. Larry Sheldon ,


    A Good One Larry

  • David

    Mr. Larry Sheldon ,


    A Good One Larry

  • Eric

    Excuse me, I’m off to sharpen my bayonet.

    I would, too, but bayonets are illegal in California.

  • Rich Rostrom

    Control of the Census results will allow reapportionment of Representatives and electoral votes to states that are firmly in the owning party’s control.

    In addition, such control would allow friendly state governments to shift legislative representation to preferred regions at both state and Federal levels.

    My estimate is that this will shift 20-25 House seats to the Democrats.

    Finally, it will provide additional cover for fraudulent voting in certain areas. It would be embarrassing if more votes were cast than there were residents.

  • Subotai Bahadur

    Eric at 2313 on 9 February:

    I suspect to survive, or to regain the Constitution, we are going to be doing quite a bit that is illegal. Sharpening a bayonet in California is a peccadillo.

    Rich Rostrom at 0311 on 10 February:

    Agreed except for the last paragraph. In cities in Wisconsin and Illinois during the last two elections, it was common to have more votes for the Democrat than there were men, women, children, and household pets combined. They showed absolutely no embarrassment at all, and accused anyone who mentioned it of racism and voter suppression. It worked then, it will work in the future. After all, it is not like anyone is going to make any sort of fuss in court or on the news in this country.

    Subotai Bahadur

  • Paul

    It seems that if acorn gets any of the work from this… it should be obvious why this is wrong.

    The census should always be independent of WH or in other words like it has been.

  • Russell Strong

    Deo Vindice

  • Laird

    Deo Vindice

    Not sure of your point, Mr. Strong. Serious or sarcastic?