Obama Census Director Nominee Rules Out Use Of Most Accurate Methodology
In an Orwellian lede, the AP reports:
President Barack Obama's pick to lead the Census Bureau is ruling out the use of statistical sampling in the 2010 head count, seeking to allay GOP concerns that he might be prone to put politics over science.(Emphasis supplied.) Of course what occurred is exactly the opposite - politics was put over science. It is undisputed that the most accurate census count requires the use of statistical sampling due to the difficulties of getting an accurate count. More . . .
From the AP report:
Robert M. Groves, a veteran survey researcher from the University of Michigan, faces questioning in his confirmation hearing Friday before a Senate committee. In prepared remarks obtained by The Associated Press, Groves said he would not pursue statistical adjustment next year — despite his support for it in previous censuses — because it is now legally barred for the use of apportioning House seats.
(Emphasis supplied.) It is barred precisely because Republicans put politics over science and apparently the Obama Administration has chosen to get rolled on the issue, despite the damage done to both an accurate count AND to the political fortunes of the Democratic Party.
Another important question:
Left unanswered by Groves was whether the Census Bureau would seek a government halt to immigration raids — as it successfully did in 2000 — to ensure a better count of immigrants. The bureau made such a request for the 2010 census two years ago, but the request was rejected by the Bush administration.
One hopes his silence on this point is a de facto affirmative response.
Much of this furor stems from the outrageous decision issued by the Supreme Court in Department of Commerce v. US house of Representatives. In an act of blatant judicial activism, the 5 Republicans on the Court took sides in a political debate. They clothed their actions in a supposed interpretation of the Census Act, which springs from the powers granted in Article 1, §2, cl. 3, of the United States Constitution, which states in pertinent part:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other 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 supplied.) "They" in the clause refers to the Congress acting by law. This clause was amended by the following language in the 14th Amendment:
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.In Dep't of Commerce, Justice O'Connor wrote for the 5 "conservatives" on the Court:
Congress enacted the Census Act (hereinafter Census Act or Act), 13 U.S.C. § 1 et seq., delegating to the Secretary of Commerce (Secretary) authority to conduct the decennial census. §4. The Act provides that the Secretary “shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year.” §141(a). It further requires that “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.” §141(b). Using this information, the President must then “transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled.” 2 U.S.C. § 2a(a). Within 15 days thereafter, the Clerk of the House of Representatives must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled.” 2 U.S.C. § 2a(b) (1994 ed., Supp. III).
So far so good. Here is where the mischief was done:
[T]he [Census] Bureau has always failed to reach–and has thus failed to count–a portion of the population. This shortfall has been labeled the census “undercount.” . . . In a further effort to address growing concerns about undercount in the census, Congress passed the Decennial Census Improvement Act of 1991, which instructed the Secretary to contract with the National Academy of Sciences (Academy) to study the “means by which the Government could achieve the most accurate population count possible.” §2(a)(1), 105 Stat. 635, note following 13 U.S.C. § 141. Among the issues the Academy was directed to consider was “the appropriateness of using sampling methods, in combination with basic data-collection techniques or otherwise, in the acquisition or refinement of population data.” Ibid. Two of the three panels established by the Academy pursuant to this Act concluded that “[d]ifferential undercount cannot be reduced to acceptable levels at acceptable costs without the use of integrated coverage measurement,” a statistical sampling procedure that adjusts census results to account for undercount in the initial enumeration, Census 2000 Report 7-8, and all three panels recommended including integrated coverage measurement in the 2000 census, id., at 29. See National Research Council, Preparing for the 2000 Census: Interim Report II (A. White & K. Rust eds. 1997) (report of Panel to Evaluate Alternative Census Methodologies); Modernizing the U.S. Census, supra (report of Panel on Census Requirements in the Year 2000 and Beyond); U.S. Dept. of Commerce, Bureau of the Census, Census 2000 Operational Plan (1997).
The SCIENCE was and is clear -- statistical sampling is NECESSARY to achieve the most accurate count. The law was also clear, as is the Constitution - the Congress had directed that the enumeration included the most accurate techniques available, including statistical sampling. Here is how the political dispute played out:
The Bureau’s announcement of its plan to use statistical sampling in the 2000 census led to a flurry of legislative activity. Congress amended the Census Act to provide that, “[n]otwithstanding any other provision of law, no sampling or any other statistical procedure, including any statistical adjustment, may be used in any determination of population for purposes of the apportionment of Representatives in Congress among the several States,” H. R. Conf. Rep. No. 105-119, p. 67 (1997), but President Clinton vetoed the bill, see Message to the House of Representatives Returning Without Approval Emergency Supplemental Appropriations Legislation, 33 Weekly Comp. of Pres. Doc. 846, 847 (1997). Congress then passed, and the President signed, a bill providing for the creation of a “comprehensive and detailed plan outlining [the Bureau’s] proposed methodologies for conducting the 2000 Decennial Census and available methods to conduct an actual enumeration of the population,” including an explanation of any statistical methodologies that may be used. 1997 Emergency Supplemental Appropriations Act for Recovery From Natural Disasters, and for Overseas Peacekeeping Efforts, Including Those in Bosnia, Tit. VIII, 111 Stat. 217. Pursuant to this directive, the Commerce Department issued the Census 2000 Report. After receiving the Report, Congress passed the 1998 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, §209, 111 Stat. 2482, which provides that the Census 2000 Report and the Bureau’s Census 2000 Operational Plan “shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census.” The Act also permits any person aggrieved by the plan to use statistical sampling in the decennial census to bring a legal action and requires that any action brought under the Act be heard by a three-judge district court. Ibid. It further provides for review by appeal directly to this Court. Ibid.
So the case landed before the Supreme Court. what issues were they to decide?
We accordingly arrive at the dispute over the meaning of the relevant provisions of the Census Act. The District Court below examined the plain text and legislative history of the Act and concluded that the proposed use of statistical sampling to determine population for purposes of apportioning congressional seats among the States violates the Act. We agree.
Read the tortured logic if you please. I prefer to cite you to Justice Stevens' dissent:
Justice Stevens with whom Justice Souter and Justice Ginsburg join as to Parts I and II, and with whom Justice Breyer joins as to Parts II and III, dissenting.
The Census Act, 13 U.S.C. § 1 et seq., unambiguously authorizes the Secretary of Commerce to use sampling procedures when taking the decennial census. That this authorization is constitutional is equally clear. Moreover, because I am satisfied that at least one of the plaintiffs in each of these cases has standing, I would reverse both District Court judgments.
The Census Act, as amended in 1976, contains two provisions that relate to sampling. The first is an unlimited authorization; the second is a limited mandate.
The unlimited authorization is contained in §141(a). As its text plainly states, that section gives the Secretary of Commerce unqualified authority to use sampling procedures when taking the decennial census, the census used to apportion the House of Representatives. It reads as follows:
“(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the ’decennial census date’, in such form and content as he may determine, including the use of sampling procedures and special surveys.” 13 U.S.C. § 141(a).
The limited mandate is contained in §195. That section commands the Secretary to use sampling, subject to two limitations: he need not do so when determining the population for apportionment purposes, and he need not do so unless he considers it feasible. The command reads as follows:
“Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as ‘sampling’ in carrying out the provisions of this title.” 13 U.S.C. § 195.
Although §195 does not command the Secretary to use sampling in the determination of population for apportionment purposes, neither does it prohibit such sampling. Not a word in §195 qualifies the unlimited grant of authority in §141(a). Even if its text were ambiguous, §195 should be construed consistently with §141(a). Moreover, since §141(a) refers specifically to the decennial census, whereas §195 refers to the use of sampling in both the mid-decade and the decennial censuses, the former more specific provision would prevail over the latter if there were any conflict between the two. See Edmond v. United States, 520 U.S. 651, 657 (1997). In my judgment, however, the text of both provisions is perfectly clear: They authorize sampling in both the decennial and the mid-decade census, but they only command its use when the determination is not for apportionment purposes.
. . . Congress changed §195 by replacing the word “may” with the word “shall.” Both amendments unambiguously endorsed the use of sampling. The amendment to §141 gave the Secretary authority that he did not previously possess, and the amendment to §195 changed a limited authorization into a limited command.
. . . Nevertheless, in an unusual tour de force, the Court concludes that the amendments made no change in the scope of the Secretary’s authority: Both before and after 1976 he could use sampling for any census-related purpose, other than apportionment. The plurality finds an omission in the legislative history of the 1976 enactment more probative of congressional intent than either the plain text of the statute itself or the pertinent comment in the Senate Report. For the plurality, it is incredible that such an important change in the law would not be discussed in the floor debates. See ante, at 25. [n1] It appears, however, that even though other provisions of the legislation were controversial, [n2] no one objected to this change. That the use of sampling has since become a partisan issue sheds no light on the views of the legislators who enacted the authorization to use sampling in 1976. [n3] Indeed, the bill was reported out of the House Committee by a unanimous vote, both the House and Senate versions easily passed, and the Conference was unanimous in recommending the revised legislation. [n4] Surely we must presume that the legislators who voted for the bill were familiar with its text as well as the several references to sampling in the Committee Reports. [n5] Given the general agreement on the proposition that “sampling and surveys” should be encouraged because they can both save money and increase the reliability of the population count, it is not at all surprising that no one objected to what was perceived as an obviously desirable change in the law. [n6]
What is surprising is that the Court’s interpretation of the 1976 amendment to §141 drains it of any meaning. [n7] If the Court is correct, prior to 1976 the Secretary could have used sampling for any census-related purpose except apportionment, and after 1976 he retained precisely the same authority. Why, one must wonder, did Congress make this textual change in 1976? [n8] The substantial revision of §141 cannot fairly be dismissed as “only a subtle change in phraseology.” Ante, at 26. Indeed, it “tests the limits of reason to suggest” that this change had no purpose at all. Id. at 25.
Of course, there are strict consturctionists and there are "strict constructionists." The are judicial minimalists and there are "judicial minimalists." And finally, there are judicial activists and "judicial activists."
In fact, what there really are is, both "Left" and "Right," Legal Realists.
Speaking for me only
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