Everybody knows that the U.S. Constitution requires that a census be taken once every ten years. Less well known – much less – is the requirement that the census be conducted “by law.”
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. – U. S. Const., Art. I, § 2, cl. 3. (emphasis added)
That’s an important phrase: “they shall by Law direct.” It doesn’t appear anywhere else in the Constitution. Most of the Constitution details laws Congress can’t write, such as the prohibition against ex post facto laws; or can write if it chooses, such as election laws; or must write, under certain circumstances, like the requirement to write a law when drawing money from the Treasury. But there are only two laws that the Constitution requires Congress to write no matter what.
The first one has to do with how much money they pay themselves. Article 1, Section 6 requires Congress to write laws that determine their salaries, and the reasons are obvious. If they weren’t required to obey a law, they could just pay themselves whatever they wanted, and the public would have no way of knowing how much they were getting or should be getting. But, If Congress has to put it in law, the public knows what Congress is paying itself, and can hold them accountable.
It’s the same thing with the census. If there were no law mandating how the government was to determine where people lived for census purposes, the people conducting the census would manipulate it in order to shift representative power towards themselves, or towards other people in exchange for money or other considerations. So the Constitution requires a law like the original census law, which outlined the rules for defining residence and described the record keeping in explicit detail. Here’s part of it:
“That every person whose usual place of abode shall be in any family on the aforesaid first Monday in August next, shall be returned as of such family; and the name of every person, who shall be an inhabitant of any district, but without a settled place of residence, shall be inserted in the column of the aforesaid schedule, which is allotted for the heads of families, in that division where he or she shall be on the said first Monday in August next, and every person occasionally absent at the time of the enumeration, as belonging to that place in which he usually resides in the United States.” – Census Act of 1790
There’s no law like that now. Current census law, known as Title 13, doesn’t direct anything. It leaves it all up to the Secretary of Commerce. Once every ten years he’s supposed to take a census “in such form and content as he may determine” and report it to the President. That’s basically it. There is no law requiring apportionment be based on that report. According to the Supreme Court, it’s just a ''tentative recommendation,'' with “no direct consequences” on reapportionment. Instead, reapportionment is based on a statement by the President, who is not required to use the data from the Secretary’s report at all.
So, to sum up current U.S. census law, once every ten years the Secretary of Commerce must create a tentative recommendation with no direct consequences on reapportionment.
Not only is there no real census law, there are also no regulations setting requirements for how the “actual enumeration” is supposed to be conducted. The closest we have is something the Census Bureau calls “the Residence Rules.” The Census Bureau says it’s the residence rules that determine where people are counted. At various times the bureau has claimed that it has to follow the residence rules, and that it cannot, or should not, change them.
“At issue is the Census Bureau’s residency rules, which, bureau officials said, would require another act of Congress to change.” FOXNews.com – More Prison Inmates Could Mean More Money for Towns – Politics Republican Party Democratic Party I Political Spectrum
But the residence rules are not like any law or regulation I learned about in law school. They’re not published in the federal register, as required by the Administrative Procedure Act, nor is the public made aware of potential changes to the rules or given a chance to comment on them, also as required by the Administrative Procedure Act. Instead, the Residence Rules are “hidden,” “purely internal” to the Census Bureau, and ''not for public consumption.''
Sometimes they publish lists or partial lists of the residence rules – the one’s I’ve seen contradicted each other, were generally nonsensical, and the bureau sure doesn’t appear to actually follow them, but there’s no way of knowing, because the Census Bureau does not keep records of the census process. The whole thing is conducted in the dark. They should call it the Census Intelligence Agency. They don’t retain any of the information needed to evaluate their work, despite repeated requests from the National Research Council.
The bureau also keeps no records of important managerial decisions – including the names of the managers who made the decisions – on things like what methods of taking the census they should use, or how and when information should be released to the public, or what the cost estimate should be.
Surprisingly, the Census Bureau is not good at keeping records. For instance, financial records – the Census Bureau has the worst luck when it comes to financial records. For the past three decades, they have managed to mess things up so badly that the oversight agencies cannot audit them. They’re always saying things like
“Inadequacies in the Bureau’s accounting system made it difficult to determine the actual cost of decennial census activities,” or
“Major deficiencies in the Bureau’s internal controls precluded the Bureau from producing financial reports that were auditable,” or
“We are unable to account for $1.3 billion.”
I don’t understand how that’s even possible. How can somebody accidentally make billions of dollars disappear? Even if the Census Bureau itself didn’t keep any records at all, wouldn’t the banks have the information? They should be able to trace every penny they were given until it was spent or converted into cash. But they never can, and everyone seems to accept that it’s just incompetence over and over and over and over and over again, and not malfeasance.
Meanwhile, the census is getting very expensive, and nobody knows why.
Roughly 5 years from now – on April fool’s day – the Census Bureau is going to conduct something they call “the 2020 Census.” It will be done off the record, without the benefit of law, without effective oversight, it will cost around $20 billion, and there will be no way to verify any of it. We’ll just have to trust the Census Bureau.
“Because the Secretary’s report to the President carries no direct consequences for the reapportionment, it serves more like a tentative recommendation than a final and binding determination.” Franklin v. Massachusetts, 505 U.S. 788, 11 (1992)
“Section 2a does not expressly require the President to use the data in the Secretary’s report, but, rather, the data from the “decennial census.” There is no statute forbidding amendment of the “decennial census” itself after the Secretary submits the report to the President.” Franklin v. Massachusetts, 505 U.S. 788, 11 (1992)
“What we do find is that, in contrast with the enabling laws for international censuses, it is somewhat unusual for core census residence concepts in the United States to be as “hidden” as they have been in the past, deriving from the spirit of a centuries-old statute and kept in full form as a purely internal Census Bureau document. Accordingly, we suggest that census residence rules and concepts be made more transparent. Approaches to promote the transparency of census residence concepts to the public and decision makers could include posting notice of, and inviting comment on, residence standards through promulgation in the Federal Register, as the Bureau does with other basic operational plans.
“The first impression that comes from reviewing the 2000 census residence rules is that they are not organized in a way that a general reader can follow; in large part, this is attributable to the internal (not for public consumption) nature of the full residence rules document.”
Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census, Panel on Residence Rules in the Decennial Census, National Research Council, page 53 (emphasis added)
“A major problem and frustration in 2000 was the lack of an audit trail; because the logical flags on the MAF were not time stamped in any way, it was difficult if not impossible to tell how and when various updating operations touched address records. Such an audit trail is essential for effective evaluation.”
Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census, Panel on Residence Rules in the Decennial Census, National Research Council, page 250
“Since 1985 several National Research Council panels on the decennial census have called for the development of a “master trace sample” database. Such a database would retain the crucial elements of the census procedural history for a sample of addresses to support census evaluation studies.….it is critical to retain sufficient data, preserving all relevant linkages, so that the result supports the examination of how the decennial census processes functioned for various subpopulations and domains.….. By guaranteeing access to this information, the Census Bureau would ensure that it could carry out evaluations that would guide the Bureau towards a more effective and cost-efficient design for the 2020 census. Therefore, we recommend that—as systems for the 2010 census are finalized by the Census Bureau and its contractors—appropriate archival outlets be created for all systems, including components of the field data operational control system, so that the relevant data to construct a master trace database or “audit trail” of census processes are retained.
ENVISIONING THE 2020 CENSUS, Panel on the Design of the 2010 Census Program of Evaluations and Experiments, NATIONAL RESEARCH COUNCIL, pages 312-313
“the bureau did not document the methods it considered but decided not to test during the 2010 testing cycle or the rationale behind those decisions. Further, for methods that the Bureau decided to test, officials could not provide support for how they selected or prioritized those methods
“clear and specific documentation does not exist for how and when the release date and location are to be determined for the Income and Poverty Estimates and who should make those decisions…because this was not thoroughly documented, it is unclear to the public who made these decisions and how they were made. Furthermore, Bureau officials told us that they did not retain any internal memos or e-mails that documented the decision to change the 2003 Income and Poverty Estimates release.”
“Officials acknowledged that the Bureau docs not have a centralized location in which to keep detailed documentation to support the assumptions and decision-making process. Further, Bureau officials stated that there is no written documentation of the process used by management to agree upon particular assumptions for use in the life cycle cost estimate, and that there is no systematic documentation regarding management decisions to make changes to the cost model or life cycle cost estimates. According to an official, changes to the cost model have not always been well documented, and sometimes a decision memo is created to justify a change but not always. Best practices call for management approval of the cost estimate. Management approval of the cost estimate should also be documented, including management approval memorandums or recommendations for change, as well as management feedback.”
Cost data for years 1800 to 1900 and 1930 to 1990 come from Measuring America: The Decennial Censuses From 1790-2000, by the Census Bureau. I took the data for years 1910 and 1920 from “Decennial Census: Overview of Historical Census Issues“,by the Government Accountability Office, because the data in Measuring America is clearly wrong for those two decades, a decimal was misplaced. I used Measuring America for the rest of the years because the data is more precise. Year 2000 comes from the June, 2008 GAO report entitled “2010 Census: Census Bureau Should Take Action to Improve the Credibility and Accuracy of Its Cost Estimate for the Decennial Census,” which, parenthetically, is one of the world’s great understatements. I used that data instead of the 2000 data from Measuring America because it is more recent. Year 2010 cost data comes from The Economist, “Censuses: Costing the count” . I then adjusted the costs for inflation, using 2012 dollars, using this website: http://www.westegg.com/inflation/ I used 2012 dollars because it was 2012 at the time, and I’m too lazy to do it again.