Title XIII, Sections 193 and 221

The upshot of my Section 141 analysis is that CB has exceeded its statutory authority in its de-facto substitution of a “special survey” for THE decennial census long form.  CB has stated that the ACS does *not* help them to gather data for updating Congressional districts/representation– which is the sole purpose for the decennial census.  Nothing in Section 141 allows for this.

However, let’s continue to look at the other two sections CB uses to force citizens and legal residents to answer questions about their private lives.  

Title 13, Subchapter 5, Section 193 (13 USC Sec. 193)reads in its entirety: 

“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.”

• Well.  Now that the ACS is now viewed by the CB as “replacing” the decennial census long form, how can we interpret CB’s citation of this section as one of the ACS authorities?  Does this simply allow CB to follow up with anything they feel needs “clarification?”  Additional PII mining, or more even more intrusive surveys?  Where does it end?  However, in view of the ACS exceeding the provision of Section 141, all these additional surveys when based on the ACS would also not be covered under this section. 

Title 13, Chapter 7, Subchapter II, Section 221 (13 USC Sec. 221) reads:

“(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.”  [emphasis added]

• Here we go, kids.  Once all the little clauses are stripped from the language, the plain meaning of the text of paragraphs a) and b) are that:  1)  Failure to answer any of the questions results in a fine of not more than $100; and 2) Giving false answers results in a fine of not more than $500.  Unless there is clarification in the legislative history, it would appear that $100 is the maximum fine for failure to respond.  The language simply does NOT read “per question.”  The section is ambiguous enough that this point could be easily argued.  Paragraph b) has the same problem.  Giving a false answer to a ACS question is definitely a less desirable route than simply a non-response.  Given this situation, it is very intriguing that CB supervisors (in the few MSM stories that can be found on the subject) have actually encouraged people to put down made up or inaccurate information.  (Such as here— please note that this article also documents CB threats for noncompliance.  They have never followed through.  Also a story here from the Chicago Trib, note that once the light of publicity was shining on the harrassment, it stopped.)

The Census Bureau also attempts to link a maximum $5k fine from a completely different (and earlier, so don’t let anyone tell you that Sec. 221 was “amended” with this because that is not the case) statute for post-conviction fines.  I have no doubt they would attempt to get such a fine if anyone ever was hauled before a Federal judge on ACS non response.  Given the number of people who already have chosen not to play (or have given patently false answers) without prosecution, such a scenario is presently remote. 

So, sections 193 and 221 would be in play, if and only IF, Census had not extended the ACS past its section 141 statutory authority.  As previously stated, section 141 does not give CB the authority to make a special survey into a replacement for any part of the decennial census– especially because they are not confining the ACS to a decennial or even mid-decade format– the ACS is a continual, “rolling” survey of expanding proportions.  The statutory authority for this just doesn’t exist.  (If it indeed does, please send along any other links or analyses for that.  I am NOT finding it.)

And the more people who are aware of this and object to it, the more remote the $100/$500 penalties will become.

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Title XIII, Section 141

Right.  As promised, here is the statute on which the Census Bureau is hanging its authority to conduct the American Community Survey.  Title XIII or 13, Chapter 5 contains the authorities granted the Census Bureau by Congress.  The full Chapter can be accessed here:  http://www.law.cornell.edu/uscode/text/13/chapter-5

The section where CB thinks it has authority for everything they want to do with the American Community survey is in Subchapter II, especially Section 141 (there are two others as well).  This is how it reads [my comments are indented and italicized]:

(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.

• Well, right off the mark we get into broad and undefined mention of “special surveys.”  CB is Constitutionally limited to a headcount in order to draw Congressional districts.  Period.  What other census information did Congress think CB would be wanting?  Too broad, too undefined in this paragraph.

(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.

• Fine.  Give them a timeline to get their mission accomplished.

(c) The officers or public bodies having initial responsibility for the legislative apportionment or districting of each State may, not later than 3 years before the decennial census date, submit to the Secretary a plan identifying the geographic areas for which specific tabulations of population are desired. Each such plan shall be developed in accordance with criteria established by the Secretary, which he shall furnish to such officers or public bodies not later than April 1 of the fourth year preceding the decennial census date. Such criteria shall include requirements which assure that such plan shall be developed in a nonpartisan manner. Should the Secretary find that a plan submitted by such officers or public bodies does not meet the criteria established by him, he shall consult to the extent necessary with such officers or public bodies in order to achieve the alterations in such plan that he deems necessary to bring it into accord with such criteria. Any issues with respect to such plan remaining unresolved after such consultation shall be resolved by the Secretary, and in all cases he shall have final authority for determining the geographic format of such plan. Tabulations of population for the areas identified in any plan approved by the Secretary shall be completed by him as expeditiously as possible after the decennial census date and reported to the Governor of the State involved and to the officers or public bodies having responsibility for legislative apportionment or districting of such State, except that such tabulations of population of each State requesting a tabulation plan, and basic tabulations of population of each other State, shall, in any event, be completed, reported, and transmitted to each respective State within one year after the decennial census date.

• State/local authorities can request special attention to areas which may be in need of redistricting.  Population counts in the decennial census.  Fine.

 

(d) Without regard to subsections (a), (b), and (c) of this section, the Secretary, in the year 1985 and every 10 years thereafter, shall conduct a mid-decade census of population in such form and content as he may determine, including the use of sampling procedures and special surveys, taking into account the extent to which information to be obtained from such census will serve in lieu of information collected annually or less frequently in surveys or other statistical studies. The census shall be taken as of the first day of April of each such year, which date shall be known as the “mid-decade census date”.

• Here we go with what CB has now interpreted to mean “we can do and ask anything we want.”  Cleverly written to encompass the undefined “special surveys” which Congress apparently did not limit to the mid-decade census.  However, in the later section, we see that there is indeed a limiting definition to all of this…

(e)

(1) If—

(A) in the administration of any program established by or under Federal law which provides benefits to State or local governments or to other recipients, eligibility for or the amount of such benefits would (without regard to this paragraph) be determined by taking into account data obtained in the most recent decennial census, and

(B) comparable data is obtained in a mid-decade census conducted after such decennial census,

then in the determination of such eligibility or amount of benefits the most recent data available from either the mid-decade or decennial census shall be used.

(2) Information obtained in any mid-decade census shall not be used for apportionment of Representatives in Congress among the several States, nor shall such information be used in prescribing congressional districts.

(f) With respect to each decennial and mid-decade census conducted under subsection (a) or (d) of this section, the Secretary shall submit to the committees of Congress having legislative jurisdiction over the census—

(1) not later than 3 years before the appropriate census date, a report containing the Secretary’s determination of the subjects proposed to be included, and the types of information to be compiled, in such census;

(2) not later than 2 years before the appropriate census date, a report containing the Secretary’s determination of the questions proposed to be included in such census; and

(3) after submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, a report containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.

• Some important waffle here.  paragraph 3 is providing the Census Bureau with a mechanism to report back to Congress and request additional authorities due to “new circumstances…which necessitate…types of information, or questions as proposed” be modified (or new surveys instituted).  Hmmm.  Ok, if this authority would be predicated on reports, well, time to do more research and see just what reports have been sent along and what they contain.

(g) As used in this section, “census of population” means a census of population, housing, and matters relating to population and housing. 

• And CB is drawing “matters relating to population and housing” very very very broadly indeed.  When does infrastructure, or hospitals, or schools, etc. intersect with a census of population and housing?  What does an individual’s income, or racial/ethnic makeup, or marital status, or time one leaves for work, or utility bills, or in fact almost ALL the ACS questions have to do with a census of population or housing.  Housing stuff is easily obtained from local jurisdictions.  The rest, well… do you really trust a CB contractor without a security clearance or HSPD12 badge?  If you do, then go ahead and volunteer for this.  I decline to participate in any more buracratic insanity than absolutely necessary, ie NOT this.

This is the first section CB cites to in its ACS material.  The two other Title XIII sections will be examined in a later post.  A full legislative history of Section 141 would be very interesting to put together to see if Congress actually understood the broadness of the authority they were giving away.  I can’t bring myself to believe at this moment, without the research, that they *meant* to have surveys with such intrusive PII questions done on a continual basis by Census.  But I used to be even more of an optimist than that and this is why research and analysis is so important to countering the ACS. 

Further, in reading more of CB’s material, they are stating (not proposing– stating) that the ACS has replaced the decennial census long form.  THERE IS NO STATUTORY AUTHORITY FOR THIS.  No language in Section 141 allows a “special survey” to replace the decennial census.  The decennial census *cannot* be replaced– that would take either additional amendment of this Section or a new Section altogether.  The use of the ACS is improper and contrary to statutory authority provided for in Section 141. 

UPDATE, 2/17:  As I had feared, it does appear that the terms “population and housing” in Section 141 have indeed morphed into catch-alls for any information CB decides it wants to track.  This .pdf from the University of Kentucky includes a little table on page 1 that notes “Population Characteristics” and “Housing Characteristics.”  Changing the function of the terms “population” and “housing” from a census descriptor into an adjective defining characteristics appears to be quite beyond the approved authorities of this section.  (Link here)

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