        The Authority of the Bureau of the Census to Adjust
      Population Data for Purposes Other Than Apportionment

T h e C o m m e rc e D e p artm e n t h a s th e a u th o rity to use sa m p lin g and o th e r re c o g n iz e d s tatistic a l p ro c e ­
    d u re s in o rd e r lo c o rre c t th e u n a d ju ste d p o p u la tio n fig u res o b ta in e d in the d e ce n n ia l c e n s u s for
    th e y e a r 2 0 0 0 , a t least fo r p u rp o se s .o th e r th an p ro v id in g the b a sis fo r a p p o rtio n in g s e a ts in the
     U n ite d S ta te s H o u se o f R e p rese n ta tiv es.


                                                                                                                    O ctober 7, 1998


                              M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                                           O f f ic e o f M a n a g e m e n t & B u d g e t


  Y o u have asked for our opinion whether the Secretary of Commerce ( “ Sec­
retary” ), and the Secretary’s subordinate, the Director of the Bureau o f the
Census, have the authority, under existing statutory law, to use sampling and other
recognized statistical procedures in order to correct the unadjusted population fig­
ures obtained in the decennial census for the year 2000, at least for purposes
other than providing the basis for apportioning seats in the United States House
of Representatives. We believe that those officials have such authority.
  Article I, Section 2, Clause 3, vests in Congress “ virtually unlimited discretion
in conducting the decennial ‘actual Enumeration’ ” for which that Clause calls.
Wisconsin v. City o f New York, 517 U.S. 1, 19 (1996). “ Through the Census
Act, Congress has delegated its broad authority over the census to the Secretary.
See 13 U.S.C. § 141(a).” Id. (footnote omitted). The Secretary’s authority for
establishing census procedures may be delegated to the Director of the Bureau
of the Census. See Franklin v. Massachusetts, 505 U.S. 788, 792, appeal dis­
missed, 505 U.S. 1215 (1992).
  The provision in the Census Act primarily governing the Secretary’s conduct
of the decennial census is 13 U.S.C. § 141 (1994) (“ Population and other census
information” ). Subsection 141(a) provides in part (emphasis added):

               The Secretary shall, in the year 1980 and every 10 years there­
            after, 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 o f sampling procedures and special surveys.

  Further, § 141(b) provides that “ [t]he tabulation of total population by States
under subsection (a) . . . as required for the apportionment of Representatives
in Congress among the several States” is to be completed within nine months
of the census date and reported to the President.

                                                                  239
                             Opinions o f the Office o f Legal Counsel in Volume 22


   Although (as § 141(b) indicates) the “ initial purpose” of the national decennial
census was to provide a basis for apportioning seats in the House of Representa­
tives among the States, “ [t]he census today serves an important function in the
allocation of federal grants to states based on population. In addition, the census
also provides important data for Congress and ultimately for the private sector.”
Baldrige v. Shapiro, 455 U.S. 345, 353 (1982). For example, “ [t]he Federal
Government considers census data in dispensing funds through federal programs
to the States, and the States use the results in drawing intrastate political districts.”
Wisconsin, 517 U.S. at 5 -6 .1
  The authority of the Secretary under § 141 over the procedures for conducting
the census is unquestionably broad. See Wisconsin, 517 U.S. at 19; Franklin, 505
U.S. at 819 n.20 (Stevens, J., concurring) (§ 141(a) “ gives the Secretary broad
discretion with respect to the ‘form and content’ of the census” ). As one appellate
court has said:

           The Constitution directs Congress to conduct a decennial census,
           and the implementing statutes delegate this authority to the Census
           Bureau. U.S. Const. Art. I, § 2, cl. 3; 2 U.S.C. § 2a; 13 U.S.C. § 141.
           There is a little more to the statutes — they specify a timetable,
           and a procedure for translating fractional into whole seats — but
           they say nothing about how to conduct a census or what to do about
           undercounts.

Tucker, 958 F.2d at 1417.2
  We recognize, o f course, the disputed question whether 13 U.S.C. § 195 (1994)
limits the authority of the Bureau to make statistical adjustments for the specific
purpose o f determining the population figures to be used in apportioning congres­
sional seats. Section 195 ( “ Use of sampling” ) provides:

   *See also 13 U.S C. § 141(e)(1) (requiring use o f most recent data available from either decennial or mid-decade
census for making eligibility determinations for federal grant programs based on taking account of data obtained
in decennial census), Franklin, 505 U.S at 814 (Stevens, J , concurring) ( “ [T]he census report is distributed to
federal and state agencies because it provides the basis for the allocation of various benefits and burdens among
the States under a variety o f federal programs. T he Secretary also transmits the census figures directly to the States
to assist them in redistncting.” ); Glavin v. C linton, 19 F. Supp. 2d 543, 550 (E D . Va 1998) (three-judge district
court) ( “ [cjourts recognize that there is a direct correlation between decennial census population counts and federal
and state funding allocations” ); National Law Ctr. on Homelessness & Poverty v Kantor, 91 F 3 d 178, 183-84
(D C . Cir. 1996) (plaintiffs “ receive federal monies pursuant to a host of ‘census-based’ programs” ); City o f Detroit
v Franklin, 4 F.3d 1367, 1374 (6th C ir 1993) ( “ m any federal programs do disburse funds based upon population
figures as reported in the decennial census” ), Tucker v United States D ep’t o f Commerce, 958 F.2d 1411, 1415
(7th C ir 1992) ( “ the allocation o f state and federal funds is heavily influenced by census figures” ), City o f
Willacoochee v. Baldrige, 556 F. Supp 551, 553 (S.D . Ga 1983) (identifying two programs that “ distribute benefits
on the basis o f population data supplied by the Census Bureau” ); Jeffery S. Crampton, Lies, Damn Lies and Statistics
Dispelling Som e M yths Surrounding the United States Census, 1990 Det. C L. Rev 71, 87-91; Note, Demography
and Distrust: Constitutional Issues o f the Federal C ensus, 94 Harv. L. Rev. 841, 844-45 (1981)
   2See also City o f Camden v. Plotkin, 466 F Supp. 44,52-53 (D N J 1978) (reviewing cases holding that there
is only limited scope for judicial review o f methods used by Bureau o f Census).


                                                          240
    The A uthority o f the Bureau o f the Census to A djust Population D ata f o r P urposes O ther Than
                                              A pportionm ent

            Except for the determination of population for purposes of appor­
         tionment 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.

  This Office has followed several courts in concluding that § 195 does not bar
the use of statistical adjustments even in determining the population count for
use in apportionment. See The Twenty-Second Decennial Census, 18 Op. O.L.C.
184 (1994).3 Two recent decisions, however, have held otherwise. See Glavin,
19 F.Supp. 2d at 550-53; United States House o f Representatives v. United States
Dep't o f Commerce, 11 F. Supp. 2d 76, 97-104 (D.D.C. 1998)(three-judge district
court). The United States has appealed the latter of these two decisions to the
Supreme Court, see Jurisdictional Statement, United States D ep’t o f Commerce
v. United States House o f Representatives, Sup. Ct. No. 98—404 (O.T. 1997), and
we shall not address here the substantive question presented to the Court for
review. The sole question we presently consider is whether, even if the ‘‘except’ ’
clause in § 195 limits the Secretary’s authority to use statistically adjusted popu­
lation figures for purposes of apportionment, §§ 141 and 195 otherwise authorize
him to adjust such population data for all other purposes for which such data
are used. In our opinion, the Secretary does possess such statutory authority under
the Census Act.
   First, the plain language of both § 141 and § 195 vests the Secretary with the
authority to use methods of statistical adjustment in deriving final population fig­
ures. Section 141(a) authorizes theSecretary to “ take a decennial census of popu­
lation . . . in such form and content as he may determine, including the use of
sampling procedures and special surveys” (emphasis added). Subsection 141(g)
defines “ census of population” to mean “ a census of population, housing, and
matters relating to population and housing.” Thus, the Secretary is authorized
to use techniques of statistical adjustment in determining population figures, as
well as in collecting other types of information sought in the census. Similarly,
the plain terms of § 195 affirmatively direct the Secretary to use sampling in “ car­
rying out the provisions” of the Census Act “ if he considers it feasible” to do
so (again, with the arguable exception of apportionment). The provisions of the
Act of course include the statutory charge to take a census o f the population.
   Even the two courts that have held that the “ except” clause of § 195 limits
the Secretary’s authority under § 141 appear to acknowledge that the plain lan­
guage of § 141 authorizes the Secretary to use sampling and other such statistical
procedures in contexts other than apportionment. ‘‘A reading of the plain language

  1 See also City o f N ew York v United States D ep’t o f Commerce, 34 F 3 d 1114, 1124—25 (2d Cir 1994), rev 7/
on other grounds sub nom , Wisconsin v City o f New York, 517 U.S 1 (1996); Carey v. Klutznick, 508 F. Supp
404, 415 (S.D N Y 1980), City o f Philadelphia v Klutznick, 503 F Supp 663, 679 (E.D Pa 1980), Young v
Klutznick, 497 F. Supp 1318, 1334-35 (E.D. Mich 1980), rev'd on other grounds, 652 F.2d 617 (6th C ir 1981)


                                                    241
                           Opinions o f the Office o f Legal Counsel in Volume 22


of Section 141 itself . . . establishes that Congress’ intent was to authorize sam­
pling for numerous purposes of the census other than congressional apportion­
ment. . . . [T]he only plausible interpretation o f the plain language and structure
of the Act is that Section 195 prohibits sampling for apportionment and Section
141 allows it fo r all other purposes.'" Glavin, 19 F. Supp. 2d at 551-53 (emphasis
added). See also United States House o f Representatives, 11 F. Supp. 2d at 104
( “ sampling should be used in any and all areas in which that use is legal and/
or constitutional, but . . . not . . . in . . . apportionment” ) (emphasis added)).
   We note also that the House of Representatives takes the position that §§ 141
and 195 “ indisputably permit (indeed, require) the use of sampling in the decen­
nial census to collect a myriad of statistical data about our nation.” Memorandum
for Plaintiff United States House o f Representatives in Support of its Motion for
Summary Judgment, at 30, United States House o f Representatives v. United States
D ep’t o f Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998). The House further argues
that “ [sjection 141(a) gives the Secretary the general authority to use sampling
and special surveys in the decennial census to collect data respecting population
and housing. That section surely permits sampling in lieu of a complete enumera­
tion for purposes other than apportionment.” Id. at 37 (emphasis added).4
   The legislative history of the provisions in question also supports the under­
standing advanced here. Consider first § 195. As originally enacted in 1957, § 195
authorized, rather than required, the use of sampling. See Pub. L: No. 85-207,
§14, 71 Stat. 481, 484 (1957) (Secretary “ may, where he deems it appropriate,
authorize . . . ‘sampling’ ” ); 18 Op. O.L.C. at 193-94. Congress amended the
section in 1976 to require the Secretary to use sampling, whenever “ feasible”
(i.e., possible). See Pub. L. No. 94—521, § 10, 90 Stat. 2459, 2464 (1976); City
o f New York, 34 F.3d at 1125. The Conference Report states that the amendment
“ differ[ed] from the [original] provisions of section 195 which grant[ed] the Sec­
retary discretion to use sampling when it [wa]s considered appropriate. The sec­
tion, as amended, strengthens the congressional intent that, whenever possible,
sampling shall be used.” H.R. Conf. Rep. No. 94-1719, at 13 (1976), reprinted
in 1976 U.S.C.C.A.N. 5476, 5481 (emphasis added). See also S. Rep. No. 94—
1256, at 6 (1976), reprinted in 1976 U.S.C.C.A.N. 5463, 5468.
   Section 141(a) was also amended by the same 1976 legislation. See Pub. L.
No. 94—521, §7(a), 90 Stat. at 2461. The amendatory language authorized the
Secretary to take the decennial census “ in such form and content as he may deter­
mine, including the use of sampling procedures and special surveys.” Id. The
Senate Report on this amendment states that it was “ added at the end o f the
subsection to encourage the use o f sampling and surveys in the taking of the
decennial census.” S. Rep. No. 94—1256, at 4, reprinted in 1976 U.S.C.C.A.N.
at 5466. M ore generally, in describing the purposes of the 1976 legislation as

   4 See also U nited States House o f Representatives, 11 F. Supp 2d at 103 (noting that the House views § 141(a)
as conferring “ broad authorization      to use sampling in most aspects of data collection” )


                                                      242
   The A uthority o f the Bureau o f the C ensus to A djust Population Data f o r P urposes O ther Than
                                              Apportionm ent

a whole, the Senate Report explained that one of its purposes was “ to direct
the Secretary of Commerce to use sampling and special surveys in lieu of total
enumeration in the collection of statistical data whenever feasible.” Id. at 1,
reprinted in 1976 U.S.C.C.A.N. at 5464.
   In light of the plain meaning of §§ 141 and 195, the judicial and congressional
construction given to those sections, and the legislative history of the 1976 amend­
ments to them, we conclude that they permit the Secretary to make statistical
adjustment to an initial population count for — at least — all purposes other than
providing the basis for apportionment.
   In addition, we have reviewed the provisions of some 140 statutes that your
Office advised us depend on population figures or census data for their
implementation. We determined that nothing in the terms of any of these provi­
sions prohibits the Bureau of the Census from using sampling in deriving popu­
lation figures.

                                                                TODD D. PETERSON
                                                           Deputy Assistant Attorney General
                                                               Office o f Legal Counsel




                                                  243
