Thursday, March 18, 2010

Census Kooks

As faithful readers know, I have an interest in "tax protestors," who are kooks who believe that there's no law that requires payment of federal income taxes. Every ten years, these tax kooks are joined by census kooks, who proclaim that people shouldn't fill out their census forms.

The latest nonsense along these lines is the idea that the census is unconstitutional because it asks for more information than the Constitution authorizes. The Constitution, the argument goes, only allows the government to gather sufficient information to apportion the House of Representatives, which would require only knowledge of how many people live in each place. Depending on how far this argument is pressed, it could theoretically mean that the census isn't even allowed to ask people for their names, but it would certainly suggest that the census isn't authorized to ask for people's race, age, or home ownership status, as in fact it does. People who should know better, including Cato Institute members and members of Congress are pushing these arguments.

It's always tiresome to see people making arguments like this without doing even the most basic research. As can be easily discovered on the Census Bureau's website, courts have considered and upheld the constitutionality of the census. As early as 1870, the Supreme Court used the census questions as an example of a "power [that] may exist as an aid to the execution of an express power, or an aggregate of such powers, though there is another express power given relating in part to the same subject but less extensive." Legal Tender Cases, 79 U.S. 457, 536 (1870). The Court did not have the census before it, so technically it did not pass on the issue, but it used the extra census questions as an example of something that was not specifically provided for in the Constitution, but was so clearly constitutional that no one would even question it. Other court cases, cited on the Census Bureau website, specifically uphold the constitutionality of the census against the objection that it gathers unnecessary information.

The census kooks conveniently ignore the fact that Congress, in addition to its specific powers, has the general power to do all things "necessary and proper" to carry its powers into execution, and this power has always been read broadly. As one court that considered a challenge to the census pointed out, the Census Clause only requires the gathering of enough information to apportion the House of Representatives, but nothing in the clause forbids the gathering of additional information, and if the information is "necessary and proper" to the intelligent exercise of Congress's powers, it is perfectly constitutional for Congress to gather it, and there can be no objection to doing so through the convenient mechanism of the census. United States v. Moriarity, 106 F. 886 (C.C.N.Y. 1901).

So census protesting seems about as logical as tax protesting. But having said that, let me add that if census kooks want to throw their census forms in the trash, fine, it'll just end up helping people like me. The more people refuse to fill out the census, the fewer representatives their states will get, and the less federal money too. So go ahead, census kooks, we all know which states you're mostly from, and if you want those states to get less representation in the House and less federal money, those of us who will end up with more representation and more federal money aren't going to complain too much.


Anonymous said...

"...nothing in the clause forbids the gathering of additional information,..."

All things not specifically forbidden are not therefore automatically authorized - except in the eyes of those who favor virtually unlimited federal government.

This is the principal fallacy that has given us an overly intrusive and overly excessive and expansive federal government.

Jon Siegel said...

True, it has to be authorized by some other constitutional power. But always remember the Necessary and Proper Clause -- that's a pretty broad power.

Anonymous said...

Except perhaps in the federal legislative and bureaucratic mindset, it is neither necessary nor proper, let alone necessary and proper for the census, to ask the myriad of additional questions about each person at a residence to simply determine the number of persons at the residence.

Will apportionment change if I am a Cuban rather than a Mexican Hispanic, or live in a mobile home rather than an apartment?

... the same Anonymous