March 18, 2010

2010 Census: What is Your Obligation?

There has been a lot of talk and controversy covering the 2010 US Census.  What are we obligated to answer?  Are we obligated to answer?  What happens if we don't?  Is it too intrusive?

Never fear; I'm here to help.  I'm here to help provide information, that is.  Whatever you do with this information you do at your own risk.  If you decide to decline to answer any of the questions on the 2010 US Census or American Community Survey, any fines or penalties you incur are strictly yours; don't come crying to me.  You're a grown-up, so make up your own mind on what to do.

With that little disclaimer out of the way, let's explore what, exactly, the Census is and why we do it.  Dust off your Constitution (you may have to fight it out of the hands of a Liberal who's about to set it on fire) and turn with me to Article 1, Section 2.  Specifically:
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 [US House of Representatives] shall by Law direct.  [Emphasis mine.]

The bolded statement is the meat an' taters of the Census.  It's purpose is the enumeration (fancy-pants for "counting") of the Persons in the Union in order to levy direct taxes and determine the number of Representatives for the House.

So, to answer the questions as to whether or not we're obligated to participate in the Census: yes.  The US House of Representatives has a Constitutional mandate to conduct an enumeration, for the purpose of apportioning direct taxes and representatives, every ten years in whatever manner they write into law. Currently, they have elected to use a mailer and/or canvassers (basically, people going door to door).  Should you decide not to fill out your 2010 Census form or to tell the canvasser to take a hike, you're in violation of the US Constitution.

This doesn't take into account, however, the questions being asked on the Census.  Per the Constitution, the purpose of the Census is enumeration of the People.  Nowhere does the Constitution say that there is a mandate to collect your name, age, race, sex, phone number (duh), type of home, or anything else.  Number of people.  Period.

The Census Bureau, though, has made it quite clear that people failing to answer the questions on the Census (or the extremely intrusive American Community Survey, which asks questions about wages, fertility, ancestry, what time you leave for work, and many more) can face up to $5,000 in fines.  For serious.  We'll explore the fine aspect in a minute; let's get to the actual questions first.

For 2010, there are ten questions that we're all asked to fill out (though a lucky 3,000,000 will get the American Community Survey).  The following are the questions (in bold), followed by the reasoning for the questions (in italics) given by the Census Bureau, followed by my response to their reasoning (in plain text).  Enjoy!

Question 1: How many people were living or staying in this house, apartment, or mobile home on April 1, 2010?
We ask this question to help get an accurate count of the number of people in the household on Census Day, April 1, 2010.
Sounds fine to me.  Article 1, Section 2 of the Constitution mandates this.

Question 2: Were there any additional people staying here April 1, 2010 that you did not include in Question 1?
Asked since 1880. We ask this question to help identify people who may have been excluded in the count provided in Question 1. We use the information to ensure response accuracy and completeness and to contact respondents whose forms have incomplete or missing information.
Sounds reasonable to get an accurate count, though a bit redundant.  Oh, and I don't care how long it's been asked for.  What does that have to do with anything?

Question 3: Is this house, apartment, or mobile home: owned with mortgage, owned without mortgage, rented, occupied without rent?
Asked since 1890. Homeownership rates serve as an indicator of the nation's economy. The data are also used to administer housing programs and to inform planning decisions.
None of your business since 1890.

Question 4: What is your telephone number?
We ask for a phone number in case we need to contact a respondent when a form is returned with incomplete or missing information.
I can see asking this, but I can't see having to provide an answer.  If my form is complete, there's no need to have anyone contact me.

Question 5: Please provide information for each person living here. Start with a person here who owns or rents this house, apartment, or mobile home. If the owner or renter lives somewhere else, start with any adult living here. This will be Person 1. What is Person 1's name?
Listing the name of each person in the household helps the respondent to include all members, particularly in large households where a respondent may forget who was counted and who was not. Also, names are needed if additional information about an individual must be obtained to complete the census form. Federal law protects the confidentiality of personal information, including names.
Really?  That's the best reason you could come up with for this question?  Sorry if that cockamamie farce of a reason set off my BS meter like nothing else.  Do they think we're so stupid that we can't count the people in our own home without listing names, or that we're so stupid that we'll buy this reason for asking an unconstitutional question during an enumeration?  I'll go with the former, though I know it's the latter.  Since I can actually count the number of people in my household without having to reference their names, and I'll provide complete information on each (which, Constitutionally, is limited to how many people there are), then I don't need to answer this question.  I think I can count to two, thank you very much.

Question 6: What is Person 1's sex?
Asked since 1790. Census data about sex are important because many federal programs must differentiate between males and females for funding, implementing and evaluating their programs. For instance, laws promoting equal employment opportunity for women require census data on sex. Also, sociologists, economists, and other researchers who analyze social and economic trends use the data.
So, in 1790 they asked this unconstitutional question to discriminate against women.  Now they ask it to discriminate against men.  Pass.  Oh, and I don't see where I have a Constitutional duty (nor where the House has a Constitutional mandate) to help out sociologists, economists, and other researchers.

Question 7: What is Person 1's age and Date of Birth?
Asked since 1800. Federal, state, and local governments need data about age to interpret most social and economic characteristics, such as forecasting the number of people eligible for Social Security or Medicare benefits. The data are widely used in planning and evaluating government programs and policies that provide funds or services for children, working-age adults, women of childbearing age, or the older population.
I can maybe see providing my age, but date of birth?  How does my specific date of birth change anything?  As far as Social Security is concerned, I think that the Social Security Administration has all the information they need on me already.  But it has been asked since 1800, so maybe I ought to answer it.  After all, if something's been around long enough it's just gotta be Constitutional!

Question 8: Is Person 1 of Hispanic, Latino or Spanish origin?
Asked since 1970. The data collected in this question are needed by federal agencies to monitor compliance with anti-discrimination provisions, such as under the Voting Rights Act and the Civil Rights Act. State and local governments may use the data to help plan and administer bilingual programs for people of Hispanic origin.
So, no other ethnicities are covered under the Voting Rights Act and Civil Rights Act?  Also, how on Earth does this help to enforce those Acts?  It's nice that they think everyone of Hispanic, Latino, or Spanish origin can't speak English, too.  That's not insulting to an entire group of Americans at all, I'm sure.  I see no reason to answer this question as it is completely useless and irrelevant; especially as it applies to enumeration.

Question 9: What is Person 1's race?
Asked since 1790. Race is key to implementing many federal laws and is needed to monitor compliance with the Voting Rights Act and the Civil Rights Act. State governments use the data to determine congressional, state and local voting districts. Race data are also used to assess fairness of employment practices, to monitor racial disparities in characteristics such as health and education and to plan and obtain funds for public services.
Wait a minute, this is used to determine congressional, state, and local voting districts?  There are so many things wrong with that statement that it makes my head spin.  Since I don't believe in the concept of races (and this little known science called Biology backs me up), I see no reason to answer this question.

Question 10: Does Person 1 sometimes live or stay somewhere else?
This is another question we ask in order to ensure response accuracy and completeness and to contact respondents whose forms have incomplete or missing information.
I could see the use for this question, as we don't want anyone being counted twice if they live in more than one place.

So, to sum it all up, I can see the usefulness of questions 1, 2, 10, and arguably 4 for the purpose set forth in the Constitution.  The rest are pure bunk; and do let's not even start on the American Community Survey.  How a woman's fertility relates to enumeration can only be thought up by the Federal government.

So, what's with the threat of a $5,000 fine if you don't answer?  Well, let's explore.

The US Census is governed under Title 13 of the US Code.  Penalties are found in Section 221, which reads: 
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.
(b) Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500. 
(c) Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.

Pretty clear, right?  Wait, I don't see anything in there about a $5,000 fine.  And, come to think of it, there's a bit of caveats in there, too.  It seems that these penalties are only in effect should the questions be in connexion with subchapters I, II, IV, or V of chapter 5 in Title 13.  OK, so what do those say?

Subchapter I deals with Manufactures, Mineral Industries, and Other Business.  So, no relevance there to private citizens and the 2010 Census or American Community Survey.  Subchapter IV mainly deals with the Secretary of Commerce's duties and how the information obtained is to be reported and used.  Subchapters II and V may have some relevancy to the rest of us.

Subchapter II, §141, states (among other things):
(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. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section 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.
(g) As used in this section, “census of population” means a census of population, housing, and matters relating to population and housing.

Part (a) basically states that, starting in 1980, the decennial census of population will take place every ten years on April 1st, and that the Secretary can ask pretty much whatever he wants towards that end.  (b) defines the purpose of (a) as "required for the apportionment of Representatives in Congress among the several States," and says the information needs to get to the President within 9 months.  (g) states that census, basically, means whatever they want it to mean.

On to Subchapter V, §193 (then we'll start 'splainin):
In advance of, in conjunction with, or after the taking of each census provided for by this chapter, the Secretary may make surveys and collect such preliminary and supplementary statistics related to the main topic of the census as are necessary to the initiation, taking, or completion thereof.

This is basically stating that the Secretary can survey for any topic the Census is being used for.   Perusing Title 13, there are quite a few Census topics that can be used, so this would pertain to whatever was being ascertained (e.g., a survey on how much gold was mined in a year should the census be on mineral industries).  The purpose of this section, though, is really to allow the Secretary to use sample populations as opposed to actual populations for any census matter not pertaining to apportionment of direct taxes or House representatives, so it really doesn't apply here.

To sum the above up, you can be fined up to $100 for failure to answer, or up to $500 for lying on, any question posed by the Secretary of Commerce in a census.  However, the purpose of the 2010 (and all decennial) Census is for enumeration.  Therefore, there's a good argument that you can only be fined up to $100 for not answering the population questions (Questions 1, 2, and 10), and up to $500 for lying about said questions.

As far as any other census on any other subject, I fail to find anything in the Constitution that states we must participate.  It could be argued that the entirety of Title 13, other than as it relates to enumeration for the purpose of direct taxes and House representatives, is unconstitutional; especially the portion on fines. Now, I can see how the Secretary of Commerce could be vested with the power to ask the questions; but not how that corresponds to a duty on the part of the citizenry to answer them.

So, again, where do they get the $5,000 figure from?  Some have suggested that, since there are ten questions and you can be fined up to $500 for lying, the figure is for lying on all ten questions.  This is incorrect.  According to the Census Bureau, US Code Title 18, Sections 3571 and 3559 supersede Title 13, Section 221.  Holy crap, another rabbit trail.

OK, so what is the specific text relating to a $5,000 fine?  That's in Title 18, Section 3571, which states:
(b) Fines for Individuals.— Except as provided in subsection (e) of this section, an individual who has been found guilty of an offense may be fined not more than the greatest of— 
(7) for an infraction, not more than $5,000.

Let's now see two things begged by this section: what is an "infraction" (as defined for this particular section), and what does subsection (e) state?  To answer the second question first:
(e) Special Rule for Lower Fine Specified in Substantive Provision.— If a law setting forth an offense specifies no fine or a fine that is lower than the fine otherwise applicable under this section and such law, by specific reference, exempts the offense from the applicability of the fine otherwise applicable under this section, the defendant may not be fined more than the amount specified in the law setting forth the offense.

So, basically,  you cannot be fined the $5,000 if a law specifically states a fine that ought to be levied in the case of said law being violated, and that fine is less than $5,000.  Oh, wait; it also says that the law must specifically exempt the offense from the fine in this section.  So, even though Title 13, Section 221 specifically states how much you can be fined, it doesn't explicitly state that it applies over and above Title 18, Section 3571.  Great; so it's worthless.

This still doesn't answer the question as to whether or not failing to answer (or lying on) a Census question counts as an "infraction," thus leaving it open to the penalties in Title 18, Section 3571.  For that, we go to Section 3559 of Title 18, which defines an infraction as:
(a) Classification.— An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(9) five days or less, or if no imprisonment is authorized, as an infraction.

All right, so something is an infraction if it carries no jail time (which is true, so far, for the Census) and it is not assigned a letter grade in that section.  The letter grades it references are for misdemeanors and felonies.

Thus, since it's neither a misdemeanor nor a felony to lie or fail to answer Census questions, it's an infraction.  Infractions, per Title 18, carry a maximum fine of $5,000.  And, since Title 13, Section 221, doesn't specifically state that Title 18, Section 3571 doesn't apply, you theoretically could be fined up to $5,000 for non-compliance with the 2010 Census and/or the 2010 American Community Survey.  Pretty slick; and equally slimy.

Now, I think it's pretty clear that these fines, if levied for non-compliance with all but the enumeration questions, are beyond the Constitutional scope of the Federal government.  It seems the Census Bureau thinks this, too, as they have very seldom enforced their measures with the threatened fines (I actually could find no cases in which a person was fined for failure to answer a question; though I wouldn't doubt that some cases exist).  So, not to worry.  No one will come after you if you only answer the questions mandated by the Constitution, right?

Right?

I don't know that I would put money on it (which would be literal, in this case).  Consider these fun facts: the government is broke, they are threatening fines for the Census that have never been threatened before (classically, they have only threatened the $100 and $500 fines), and revenue collected wouldn't technically be a tax hike.  If ever there was a better recipe for extorting information out of people, I don't know what it is.

To be fair, the Census Bureau has only threatened the $5,000 fine for those who fail to fill out the American Community Survey, and the $100-500 fines for those failing to fill out the 2010 Census.  But, to be even more fair, they have no Constitutional right to any information beyond a simple head count!!

So, what to do?  I know that the Supreme Court has previously ruled that, "Neither branch of the legislative department [House of Representatives or Senate], still less any merely administrative body [such as the Census Bureau], established by congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen."  I suppose that one could stand upon this as grounds for a refusal to answer questions, were one so inclined.

The Census Bureau does address the issue of Constitutionality, albeit rather clumsily.  They quote a few Supreme Court cases that really have nothing to do with the issue (the case I quoted was Kilbourn v. Thompson, a case investigating the reach of the House of Representatives in questioning citizens), such as an opinion draughted by a District Court judge in a legal tender case (the opinion was not the holding in that case, to my understanding), and the second and third cases they use, though relevant to the Census, had to do with using statistical sampling rather than an actual head count.

So, what's the point?  The government already knows my name, address, phone number, social security number, and a lot of other stuff (they probably have more information on my wife and me than I do).  Who cares?  Why risk a big, fat fine for essentially nothing?

And that's how it happens.  Why risk a lot to gain a little?  After all, it's only slightly unconstitutional; and that thing was written so long ago, anyway.  What's the harm in it?

Two things: the first theoretical, the second fiercely pragmatic.  First, a stand ought to be taken on every right for every person in this Union.  We are supposed to be born free, and the Constitution was written not as a limit on the People's freedoms, but a limit on the Federal government's abilities.  In other words, the Constitution is a "hands off" document from the Founders (on our behalf) to the Federal government.  When they start ignoring it in the small things, what's next?

Second: the pragmatism.  In World War II, in one of the lowest moral moments in our country's history apart from slavery, the Federal government rounded up and interred some 110,000 persons of Japanese descent.  According to a good deal of evidence collected well after the fact, the US Census Bureau played a key role in helping the War Department find and round up said persons of Japanese descent.  Don't believe it (it seems a good deal of liberal bloggers don't)?  Kenneth Prewitt, then head of the US Census Bureau, said in 2000, "the historical record is clear that senior Census Bureau staff proactively cooperated with the internment, and that census tabulations were directly implicated in the denial of civil rights to citizens of the United Sates who happened to also be of Japanese ancestry."

But at least they said they're sorry and they promise not to ever abuse our private, personal, biographical information ever again.  And besides, that was a long time ago (this is seriously the argument I hear most as to why it's ridiculous to think something like this can happen again).

Forgive me if I'm not overly impressed when the Federal government promises not to use unconstitutionally obtained  information in unconstitutional ways, like they did in the past.

8 comments:

  1. Fantastic job! Finally, someone with a thoughtful walk through of each question on the 2010 Census. Also a great job on the analysis of Title 13 and Section 221. I can't thank you enough for doing this.

    ReplyDelete
  2. Im left with more Questions Than answers.Damm if you do or dont . I wouldnt want to be the scapegoat challenging the obama administration .Ill wait another 10 years before I decide to take a stand against this encroaching government.Constitutional Lawyers are very expensive.

    ReplyDelete
  3. Well, Anonymous, you know what they say: First they came for the Census protestors . . .

    Seriously, though, the article's ambiguous as to the correct course of action for a reason. I personally believe that any question other than one pertaining to enumeration is unconstitutional, but I don't think that's ever stopped the government in the past. I only answered the enumeration questions, but you have to decide how far you're willing to go and how straight you're willing to stand on your own. If you're looking for an article that'll hold your hand through your decision, I can't oblige.

    ReplyDelete
  4. Wow!Exactly what I was looking for.Received one of these offending surveys a few weeks ago, and almost tossed it in the trash at first, thinking it was probably a scam survey.Now it appears even more sinister as I actually had time to sit down and open it up.(The estimated 38 minutes to complete it is estimated by whom?I couldn't finish it in that time unless I had the calculations right in front of me or pre-answered circles filled in)Many of my honest answers,were I so inclined to feel my blood pressure rise during this mental anal exam, are not even listed as a possible response.Pigeonholing?In my pollyanna way,I supposed whoever wrote these possible responses naively believed these to be the only answers available to American citizens/naturalized/illegals who may be answering ?'s under duress.Aaah,nope -not for how many hundreds of millions of dollars(?) was that again.Did WE ask or demand the Federal Gov to spend,excuse me, OUR money for THEIR purpose...Uh Oh, the blood pressure is going up again.That's okay IF the feet,the hands,the mind get going as well to actually do something about it.I started to go through this 'survey' earlier today in the rare quiet time of my very busy day, and became so agitated that I could not even finish it.Violated and angry.Please don't tell 'em,my spouse is a retired lawyer and insurance investigator.He handed/tossed me this mailing with a smirk on his face and a comment I won't bother to repeat.There are obvious IRS issues in these questions I won't even get into; but if anyone believes the information on these forms will be safe from the IRS, please get real or get informed.Coincidentally,when I first started looking stuff up on the web, there was an attack on the computer, but our protection alerted me and held, hopefully.

    ReplyDelete
  5. Thanks for the information.. I'm being called daily by the census bureau (cell and work) because I refuse to answer the community survey questions. I'll let you know if they actually go through charging me any fines for not cooperating.

    ReplyDelete
  6. While I am writing this, I am on the phone with the bureau. I told them I only wish to disclose enumeration questions and they were fine with it.. they proceeded to ask me all the questions; those I did not wish to answer I informed them I "did not wish to disclose" and they were fine with it and move onto the next question. I recommend you do this. just call them; tell them you wish to answer over the phone (have your census packet with you) and proceed. at the end of the questions they said thank you and bye. easy-peasy. I did give them some ethnicity answers and a few other tidbits that may help with census purposes but not real personal info. I felt like I did my civic duty but kept my privacy intact. cheers America!

    ReplyDelete
    Replies
    1. Haven't looked at my own blog in a while (can you tell?). Well done and good on you for this; if we capitulate on the little things, where does it end? I think we're seeing that played out on a grand scale as we speak.

      Delete
  7. dui lawyers san diego

    Good point arise for Obligation. Good post Thank you its no doubt automated spam is a huge problem clouding blog posts. Its important to separate well meaning commenter with a website from those who did not even look at the material offered. I need to do this on a golf blog I own this will be a big help. I love the blog engine platform.

    ReplyDelete

There was an error in this gadget