 Constitutionality of State-Imposed Restrictions on Responses
                      to Census Questions

T h e S u p re m acy C lause o f th e C o n stitu tio n b ars a sta te from im posing restrictio n s on its
   resid en ts’ responses to q u estio n s c o n ta in e d in cen su s form .

S p ecific lim ited g ran t o f p o w e r in th e C o n stitu tio n d o es not p re c lu d e C o n g ress from
   e n a c tin g b ro a d e r cen su s legislation u n d e r th e N e ce ssa ry and P ro p e r C lause.

S ta tu to ry d eleg atio n to th e S e c re ta ry o f C o m m e rc e an d D ire c to r o f th e B ureau o f C ensus
   is not excessive, c o n sid e rin g lo n g h isto ry o f cen su s legislation and p ractice, and census
   fo rm s are w ith in th at deleg atio n .


                                                                                       February 22, 1980

  M E M O R A N D U M O P IN IO N FO R T H E G E N E R A L C O U N SEL,
                   D E PA R T M EN T O F COM M ERCE

   This responds to the letter o f the Legal Adviser, Bureau of the
Census, seeking the opinion o f this Office on the constitutionality o f a
bill introduced into the Senate o f the State o f Arizona that would limit
census responses by residents o f A rizona to their name, address, and
age. It is our conclusion that such legislation, if enacted, would be
unconstitutional under the Suprem acy Clause o f the Constitution (Art.
VI, cl. 2) to the extent that it would purport to excuse residents of
Arizona from answering questions in the census form that are author­
ized by federal law.
   T he prim ary authority for the census form for the 1980 census is 13
U.S.C. 141(a), pursuant to which:
          T he Secretary [of Com merce] shall, in the year 1980 and
          every 10 years thereafter, take a decennial census o f popu­
          lation as o f the first day o f A pril o f such year, which date
          shall be known as the “decennial census date,” in such
          form and content as he may determ ine, including the use
          o f sampling procedures and special surveys. In connection
          with any such census, the Secretary is authorized to
          obtain such other census inform ation as necessary.
Section 141(g) defines the term “census o f population” as a “census o f
population, housing, and m atters relating to population and housing.”
13 U.S.C. § 141(g). Section 5 o f title 13 gives the Secretary o f Com ­

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 merce general implementing authority,1 and the Joint Resolution o f
June 16, 1976, 90 Stat. 688, imposes on the Secretary o f Com m erce
 special obligations to collect and publish statistics indicating the condi­
 tions o f Americans o f Spanish origin or descent and to develop credit­
 able estimates o f undercounting o f Am ericans of Spanish origin or
descent in future censuses.
    Under A rticle VI, clause 2 o f the Constitution, state laws must yield
to federal laws and regulations if these federal authorities are made “in
pursuance” o f the Constitution. T he sponsors o f the A rizona legislation
seem to suggest that the census legislation conflicts with the C onstitu­
tion o f the United States because A rticle I, § 2, clause 3 o f the C onstitu­
tion provides only for the enum eration o f the population, and, hence,
that the Constitution does not permit the inclusion in the census o f any
additional questions. T he notion that a specific limited grant in the
Constitution precludes Congress from enacting broader statutes under
other powers granted to it in the C onstitution was rejected by the
Supreme C ourt m ore than a century ago w ith specific reference to the
census legislation. In the Legal Tender Cases, 79 U.S. (12 W all.) 457,
536 (1871), which involved the constitutionality o f the statutes making
paper money legal tender, the argum ent was made that because the
Constitution specifically authorized Congress to coin money and regu­
late its value (Art. I, § 8, cl. 5), Congress did not have any other
powers in the m onetary field. T he C ourt held that under the Necessary
and Proper Clause (Art. I, § 8, cl. 18) Congress could enact legislation
in aid o f one or m ore express pow ers “even if there is another express
pow er given relating in part to the same subject but less extensive.” As
an example for this proposition, the C ourt stated:
        T he Constitution orders an enum eration o f free persons in
        the different States every ten years. T he direction extends
        no further. Yet Congress has repeatedly directed an enu­
        meration not only o f free persons in the States but o f free
        persons in the Territories, and not only an enum eration o f
        persons but the collection o f statistics respecting age, sex,
        and production. W ho questions the pow er to do this?
12 Wall, at 536.
   W hile this approval o f the broad scope o f census questions in the
L egal Tender Cases was in the nature o f dictum , the C ircuit C ourt for
the Southern D istrict o f N ew York in United States v. Moriarity, 106 F.
886, 891-92 (1901) discussed the pertinent constitutional considerations

 1 This section provides:
       T h e Secretary (of C om m erce] shall prepare schedules, and shall determ ine the inquir­
       ies, and the number, form, and subdivisions thereof, fo r th e statistics, surveys, and
      censuses provided for in this title.
 A ug. 31. 1954, ch. 1158, § 5 , 68 Stat. 1013.


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at length, and little can be added to this classic analysis. T he court
stated:
      Respecting the suggestion that the pow er o f congress is
      limited to a census o f the population, it should be noticed
      that at stated periods congress is directed to make an
      apportionm ent, and to take a census to furnish the neces­
      sary information therefor, and that certain representation
      and taxation shall be related to that census. This does not
      prohibit the gathering o f other statistics, if “necessary and
      proper,” for the intelligent exercise o f other pow ers enu­
      m erated in the constitution, and in such case there could
      be no objection to acquiring this information through the
      same m achinery by w hich the population is enum erated,
      especially as such course w ould favor econom y as well as
      the convenience o f the governm ent and the citizens. . . .
      It would be curious governm ental debility that should
      incapacitate the nation from directing its census enum era­
      to r to ask an inhabitant concerning his business because
      for certain purposes he was only to be counted, and
      perhaps his gender ascertained. T he functions vested in
      the national governm ent authorize the obtainm ent o f the
      information dem anded by section 7 o f the census act, and
      the exercise o f the right befits an exalted and progressive
      sovereign power, enacting laws adapted to the needs of
      the vast and varied interests o f the people, after acquiring
      detailed know ledge thereof. . . . F or the national govern­
      ment to know something, if not everything, beyond the
      fact that the population o f each state reaches a certain
      limit, is apparent, w hen it is considered w hat is the de­
      pendence o f this population upon the intelligent action of
      the general governm ent. Sanitation, immigration, natural­
      ization, the opening and developm ent o f the public
      domain; the laying o f taxes, duties, imposts, and excises,
      involving the adjustm ent o f duties for the purposes of
      revenue to the dom estic products o f every kind, and the
      taxation o f industries, . . . for these and similar purposes
      the governm ent needs each item o f information demanded
      by the census act, and such information, w hen obtained,
      requires the most careful study, to the end that the fulfill­
      ment o f the governm ental function may be wise and
      useful. . . . A governm ent whose successful maintenance
      depends upon the education o f its citizens may not blindly
      legislate, but may exercise the right to proclaim its com ­
      mands, after careful and full know ledge o f the business

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        life o f its inhabitants, in all its intricacies and activities.
        The dem urrer should be overruled.
   In United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962),
cert, denied, 371 U.S. 962 (1963), also a case involving the validity of
the questions contained in the census form, the court, per then Circuit
Judge Thurgood Marshall, held:
          T he authority to gather reliable statistical data reason­
        ably related to governmental purposes and functions is a
        necessity if modern governm ent is to legislate intelligently
        and effectively. United States v. Moriarity, 106 F. 886,
        891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow,
        309 F.2d 77 (2d Cir. 1962). The questions contained in the
        household questionnaire related to im portant federal con­
        cerns, such as housing, labor, and health, and w ere not
        unduly broad or sweeping in their scope.
The Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971),
referred with approval to the holding in Rickenbacker concerning the
scope o f the census questions.
   N or can it be said that 13 U.S.C. §§ 5 and 141(a) contain excessive
delegations o f statutory power, or that the census form, as prom ul­
gated, goes beyond the scope o f the delegation. It is true that the
delegations contained in 13 U.S.C. § 5 and in the last sentence o f 13
U.S.C. § 141(a) are broad. It should be remembered, how ever, that
these statutes involve an area in which Congress has legislated since
1790, and which legislation and practice have crystallized into well-
known standards that guide the discretion o f the Secretary o f Com ­
merce and the D irector o f the Bureau o f the Census. Fahey Mallonee,
332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 424-
25 (1944). Hence the district court properly held in United States v.
Little, 321 F. Supp. 388, 391 (D.Del. 1971):
       Congress has in 13 U.S.C. §§5 and 141(a) described the
       job to be done by the Secretary o f Com m erce and delin­
       eated the scope o f his authority, viz. to “take a census of
       population unemployment, and housing (including utilities
       and equipment).” 2 T he fact that there is a zone for the
       exercise o f discretion by the Secretary in framing the
       questions which will elicit the necessary statistical infor­
       mation within the scope o f the census to be undertaken
       does not render the delegation invalid. Yakus v. United
       States, 321 U.S. 414, 42 4 ^2 5 , 64 S. Ct. 660, 88 L. Ed. 834
       (1944). F urther, in the absence o f a clear showing (which
       has not been made in this case) that the Secretary’s

 2 This quotation is based on the language o f 13 U.S.C. § 141(a) prior to its 1976 am endm ent.


                                            419
         exercise o f discretion was irrational, arbitrary or capri­
         cious, his actions will not be disturbed.
   W e have examined the 1980 census form. T he questions asked appear
to be either within the scope o f the information traditionally asked in
census forms or within the mandate o f the Joint Resolution o f June 16,
 1976. It is therefore our conclusion that 13 U.S.C. §§5 and 141(a), as
implemented by the 1980 census form, are valid laws o f the United
States made in pursuance o f the Constitution. M oreover, in view of the
statistical nature o f census operations, it is im perative that the census
questionnaire be answ ered uniformly throughout the United States.
State legislation that purports to excuse the inhabitants o f a state from
having to answ er some o f the questions contained in the census forms
would constitute “an obstacle to the accom plishm ent and execution of
the full purposes and objectives o f Congress.” Accordingly, the state
legislation must give way to the federal law. Hines v. Davidowitz, 312
U.S. 52, 67 (1941); Jones v. R ath Packing, 430 U.S. 519, 526 (1977).

                                         L arry A. H am m ond
                                  D eputy Assistant Attorney General
                                       Office o f Legal Counsel




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