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December 17, 2017

8/25/2009 9:51:00 AM
Critics say 2010 census is unconstitutional
Illegal immigrants to be officially counted for the first time

Richard Moore
Investigative Reporter

Every 10 years, the federal government undertakes a constitutionally mandated count of the American population to determine the apportionment of elected representatives among the 50 states, and, given the political stakes, it has always been a lodestone for controversy.

In recent decades, the blasts and the blows have been mostly about the counting - or undercounting, as the case may be - of minorities. The squalls this year are blowing in from three different directions, and two of them are based on constitutional complaints.

First fury up, a charge that President Barack Obama has made a power grab by transferring oversight of the 2010 census from the Department of Commerce to the White House, a move critics contend is not only politically motivated but unconstitutional.

The constitution, they say, gives Congress the power to delegate the duties and responsibilities of the census by law, and it has done so to the Department of Commerce, not to the White House.

If that didn't rankle Obama's adversaries enough, the Census Bureau teamed up early this year with the Association of Community Organizations for Reform Now (ACORN), ostensibly to recruit census volunteers. Republicans say ACORN workers have been convicted of filing fraudulent voter registration forms in the past and the group is both politically biased and ethically untrustworthy.

Perhaps the most important controversy has been the most recently debated one: The census, it turns out, is planning to count everybody, as usual, per the constitution, but this year for the first time residents will not asked if they are citizens. In other words, there will no longer be a delineation between legal residents and total population.

The bottom line is, critics assert, millions of illegal immigrants will be counted for apportionment purposes, handing states with large illegal immigrant populations - California, Texas, Florida - new congressional seats at the expense of others.

That doesn't include the $300 billion in federal aid dispensed each year to states on the basis of population.

The moves haven't just bothered Republicans. At a recent listening session in Mercer, Democratic U.S. Sen. Russ Feingold said he too was concerned about the impacts of the upcoming census.

A power grab

The controversies got rolling not long after Obama became president and then announced he was appointing a Republican senator, Judd Gregg, to be the Department of Commerce secretary. That didn't make some minority leaders very happy, and they complained to the president about Gregg's history with the census.

"Secretary of Commerce-Designate Judd Gregg's record raises serious questions about his willingness to ensure that the 2010 Census produces the most accurate possible count of the nation's population," the National Association of Latino Elected Officials said in a statement on Feb. 3. "As a current member and former chairman of the subcommittee that funds the U.S. Census Bureau, Secretary-Designate Gregg fought President Clinton's efforts to increase funding for the Commerce Department to administer the 2000 census. During his tenure in the U.S. Senate, some policymakers questioned his commitment to supporting the basic functions of the Bureau."

After black lawmakers chimed in as well, it didn't take the Obama White House long to respond, just two days, in fact.

Congressional Quarterly reported in a bombshell Feb. 5 story that the Obama administration was transferring control of the census from the Commerce Department to the White House.

"The director of the Census Bureau will report directly to the White House and not the secretary of Commerce, according to a senior White House official," the CQ story stated. "The decision came after black and Hispanic leaders raised questions about Commerce Secretary nominee Judd Gregg's commitment to funding the census."

That, in turn, prompted an angry letter to Obama from U.S. Reps. Darrell Issa (R-Calif.) and Patrick McHenry (R-N.C.), both members of the House Committee on Oversight and Government Reform.

"Requiring the Census director to report directly to White House Chief of Staff Rahm Emanuel is a shamefully transparent attempt by your administration to politicize the Census Bureau and manipulate the 2010 Census," Issa and McHenry wrote. "The constitutionally mandated decennial Census needs to be fair, accurate and trusted. By circumventing the secretary of commerce's oversight of the Census Bureau and handing it directly to a political operative such as Mr. Emanuel, you are severely jeopardizing the fairness and accuracy of the 2010 Census."

What's more, they wrote, requiring the census director to report directly to the White House and placing responsibility for administration of the bureau outside the Department of Commerce was most likely a violation of federal law. 

"According to Title 13 of the U.S. Code, the Bureau is to be administered 'within, and under the jurisdiction of, the Department of Commerce,'" they wrote. "According to U.S. Code, the Executive Branch is limited to providing support for the Bureau in the form of information and resources. Under Title 13, the Secretary of the Department of Commerce may interact with the Executive Branch, and the entirety of the federal government 'for information pertinent to the work' of the Bureau."

The law derives from a constitutional mandate. Article I, Section 2 of the constitution orders that "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 shall by Law direct."

And Congress, by law, directs the secretary of Commerce to conduct the census: "The Secretary [of Commerce] shall perform the functions and duties imposed upon him by this title, may issue such rules and regulations as he deems necessary to carry out such functions and duties, and may delegate the performance of such functions and duties and the authority to issue such rules and regulations to such officers and employees of the Department of Commerce as he may designate."

Here's how Michael Barone, formerly of U.S. News & World Report and now of the Washington Examiner, summed up both the constitutional argument, and the practical reality of the situation:

"Article I (as Joseph Biden didn't know in debate) is about the legislative, not the executive branch," Barone wrote. " . . . However, it is undoubtedly true that the president can fire the secretary of commerce for any reason, including failure to conduct the Census the way he wants the Census conducted."

Nonetheless, after the furor erupted, the White House distanced itself from CQ's source's claims that it was going to actually run the census.

"From the first days of the transition the Census has been a priority for the president, and a process he wanted to reevaluate," White House spokesman Ben LaBolt said in a statement. "There is historic precedent for the director of the Census, who works for the commerce secretary and the president, to work closely with White House senior management, given the number of decisions that will have to be put before the president. We plan to return to that model in this administration."

The vague language left, and leaves, everybody wondering just who - experts in the census bureau or politicos in the White House - is directing the census, as did the abrupt withdrawal of Gregg for consideration of the Commerce post, citing his differences with the administration over the census and other policies.


The revelation about ACORN's census involvement only stoked fears that White House politicos were running the show. In March, the Census Bureau announced, ACORN signed on as a national partner to assist in recruiting temporary census workers.

Speaking on the Senate floor in July, Alabama Republican Sen. Richard Shelby put it this way in announcing he would oppose Obama's nomination of Robert Groves as the new census director this year.

"On March 20, 2009, I wrote to President Obama regarding reports that the Association of Community Organizations for Reform Now (ACORN) had signed as a national partner with the U.S. Census Bureau to assist with recruiting temporary census workers," Shelby said.

"This letter remains unanswered. I cannot support the nomination of Mr. Groves when the Administration he works for would partner with such a questionable organization. Further, I am dismayed that Mr. Groves, the nominee to head the U.S. Census Bureau, would not denounce ACORN's role in the census."

Just what is ACORN allegedly guilty of?

"This is an organization ... that has numerous allegations of fraud, which should raise great concern about the accuracy of the data it would provide," Shelby said. "Washington State filed felony charges in 2007 against several paid ACORN employees and supervisors for falsifying 1,700 fraudulent voter registration cards. An ACORN worker in Pennsylvania was sentenced in 2008 for fabricating 29 falsified voter registration forms. In Ohio in 2004, a worker for one affiliate was given crack cocaine in exchange for fraudulent registrations that included underage, as well as dead, voters." 

Shelby said ACORN has been implicated in similar voter registration schemes around the country.

"The census must be nonpartisan," he said. "We cannot allow a biased, politically active organization to take any type of official role in the process, let alone recruitment. By over counting here, and under counting there, manipulation could take place solely for political gain."

Shelby said the issue was important not only from an apportionment standpoint but for the allocation of federal funds.

"Theoretically, if the census were to become politicized, the political party controlling the census process could disproportionately steer federal funding to areas dominated by its own members through a skewing of census numbers," he said. "This could shift billions of federal dollars for roads, schools, and hospitals over the next decade from some parts of the country to others because of population-driven financing formulas."

On July 10, before Shelby spoke, the Census Bureau's acting director, Thomas Mesenbourg, had written Congress a letter asserting that, as a matter of record, ACORN workers were not recruiting census workers, but documents by a watchdog group subsequently contradicted that assertion.

After Groves was sworn in July 23, McHenry wrote a letter demanding an explanation.

"Mr. Mesenbourg stated definitively that ACORN 'will not be involved in recruiting or hiring census employees,'" he wrote to Groves. "Documents from the Bureau obtained by Judicial Watch contradict Mr. Mesenbourg's letter to Congress. One such document details the organization's partnership responsibilities, including 'Identify job candidates and/or distribute and display recruiting materials.' Bearing his signature from February 12, 2009, this form indicates that Mr. Mesenbourg approved ACORN's role as a recruiter of census enumerators."

Furthermore, McHenry continued, promotional materials for the national partnership program indicated very clearly that partners would play a role in recruiting enumerators.

If indeed ACORN had been barred from the recruitment process, that raised an even larger question, the senator stated.

"If ACORN has been singled out in such a manner because of its long criminal history, it begs the question, why are they a national partner in the first place?" he wrote. "If they cannot be trusted to recruit enumerators, it would seem to me that ACORN should be disqualified as a partner altogether."

McHenry requested an answer from Groves by Aug. 24. That issue is pending.

Counting illegal immigrants

If Republicans are worried about potentially unscrupulous counting practices by census volunteers, they have even more to fear from what some say is a planned but unconstitutional overcount caused by the inclusion of illegal immigrants.

Census Bureau officials say the constitution requires them to count everybody in the country, and that's what they intend to do, but this year there's a twist. For the first time, the Bureau won't be asking people if they are citizens.

The inflated official count would give states with high illegal immigrant populations a big advantage in the next congressional reapportionment. The big winners could be states such as California - which could gain as many as nine seats, from 48 to 57 - Texas and Florida, while states such as Ohio, Louisiana, Michigan and Pennsylvania stand to lose seats.

Writing in the Wall Street Journal, John Baker, a constitutional law professor at Louisiana State University, and Elliot Stonecipher, a Louisiana pollster, argue that, constitutionally, only legal, permanent residents should be counted.

"In 1790, the first Census Act provided that the enumeration of that year would count 'inhabitants' and 'distinguish various subgroups by age, sex, status as free persons, etc,'" they wrote. "Inhabitant was a term with a well-defined meaning that encompassed, as the Oxford English Dictionary expressed it, one who 'is a bona fide member of a State, subject to all the requisitions of its laws, and entitled to all the privileges which they confer.'"

Accordingly, they argued, census questionnaires early on included a question to resolve the issue of citizenship or permanent resident status.

By 1980, they observed, there were two census forms - a short form with no citizenship question was sent to everybody physically present in the country, and a long form with a citizenship question went to a sampling of the population.

Since the short form was used for apportionment, the last two censuses had already begun to skew the numbers, they argued. This time around, however, the bureau is using the short form only, and officials told Baker and Stonecipher the citizenship question was not asked because Congress did not ask them to do so.

John Fund of the Wall Street Journal says the new practice could prove, in his words, "extremely dangerous."

"In the last 10 years, we've had a large increase in illegal immigration," Fund said recently on The Journal Editorial Report on Fox News. "There's somewhere between seven million and 12 million illegal aliens in this country. Adding them into the decision about which states get how many House seats really will dramatically change our politics."

Others make the point that counting or estimating total population is important because the census is not only about apportionment but about the allocation of federal money, some $3 trillion over the next decade, and that states with higher counts of illegal immigrants deserve more aid because they have to foot the bill for services for those immigrants.

Even so, Fund said, the nation could return to the two-question process that allows for an overall population total and a separate legal citizenship tally.

"Well, what has been done in the past is you've had two separate numbers, one that could be used, in theory, to apportion the money that these border states, for example, have to bear costs from illegal aliens, and the other to reapportion the House districts," he said. "So I think you can do something that I think preserves the original intent of the Constitution and also takes into account the need for federal money to be allocated fairly."

However one feels about the money problem, Fund said, the apportionment problem can no longer be ignored.

"But the distortions are now becoming so large," he said. "If California has nine more congressmen and -women than it's allowed normally, that's an enormous distortion of our political process."

Reader Comments

Posted: Monday, July 12, 2010
Article comment by: bill

you lost youre job because corporations make billions in extra profit from the cheap labour.our paid off gov(by lobbyists)make sure these huge engineering,construction,road,etc

Posted: Friday, July 9, 2010
Article comment by: Emilia

"On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed," Thomas Jefferson. The Census was created so the correct number of seats in the House could be apportioned. There is NO need to know race, marital status or if you have plumbing in your house. As Patric Henry once wrote: "The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government." The 2010 Census would have gotten the Founding Fathers out in the streets at arms! Americans no longer deserve the wonderful country they created. "Posterity, you will never know how much it cost the present generation to preserve your freedom. I hope you will make good use of it. If you do not, I shall repent in heaven that ever I took half the pains to preserve it," John Adams.

Posted: Tuesday, April 20, 2010
Article comment by: Susan Cooper

i think the original purpose of the census was to gather a head count so government could serve the people more fairly and effectively, and we were originally a country of pioneers from all sorts of places. sad to see that race is an issue touched on at all as part of the census, to me this is the essence of un-american.

Posted: Wednesday, April 14, 2010
Article comment by: Mara

Recently, I found the 2010 Census form hanging on my door. As I began filling it out, I came across a dilemma. The U.S. government wants to know if my children are adopted or not and it wants to know what our races are. Being adopted myself, I had to put “Other” and “Don’t Know Adopted” for my race and “Other” and “Don’t Know” for my kids’ races.

Can you imagine not knowing your ethnicity, your race? Now imagine walking into a vital records office and asking the clerk for your original birth certificate only to be told “No, you can’t have it, it’s sealed.”

How about being presented with a “family history form” to fill out at every single doctor’s office visit and having to put “N/A Adopted” where life saving information should be?

Imagine being asked what your nationality is and having to respond with “I don’t know”.

It is time that the archaic practice of sealing and altering birth certificates of adopted persons stops.

Adoption is a 5 billion dollar, unregulated industry that profits from the sale and redistribution of children. It turns children into chattel who are re-labeled and sold as “blank slates”.

Genealogy, a modern-day fascination, cannot be enjoyed by adopted persons with sealed identities. Family trees are exclusive to the non-adopted persons in our society.

If adoption is truly to return to what is best for a child, then the rights of children to their biological identities should NEVER be violated. Every single judge that finalizes an adoption and orders a child’s birth certificate to be sealed should be ashamed of him/herself.

I challenge all readers: Ask the adopted persons that you know if their original birth certificates are sealed.

Posted: Monday, March 15, 2010
Article comment by: Baby

Keep in mind that it is a very well known FACT that in 1942 Census records were used to round up Asian people in this country and send them to make shift concentration camps and it is public information that they did so. Remember that when they tell you your information is "confidential". Also on the census form it states that Hispanic people or people of Latino origin are not "considered a race"...WHAT????...it also has the nerve to ask whether you are "Black, African AM. or NEGRO"....Negro????? Are you kidding me? It also wants your phone number and your ALL of your childrens first and last names not to mention their birth dates...yet America wants the rest of the world to think it doesnt have an agenda and its not racist. Why not just ask whether or not the person is of African, European, Asian, Central or South American, or Native America ancestry, or middle eastern? Why do the words "White, Black and Negro" appear on this form? they tell you in n commercials "well if you dont fill it out we cant give your state any money"...hahaha yeah right...it then has the nerve to tell you if you dont fill it out they will fine you for it...its a catch 22 it may as well start asking what religion you are too....

Posted: Monday, March 15, 2010
Article comment by: Cale


I am white. I was raised in white, middle to upper class community. I would consider myself middle class currently. I lost my job as a construction worker to Mexican workers who are hired illegally but hired because their employers do not need to carry insurance for these workers (who do not exist). Your claim that illegals take jobs that regular Americans don't want is a false claim.

Do you your homework and stop your racist whining chant.

Great article Richard!

Posted: Tuesday, March 9, 2010
Article comment by: andy

If congress did their role of overseeing the powers, and enforced the constitution, we wouldnt have this problem. However we are also asking the same congress to do their job, the ones that dont declare war, they create illegal powers to a dictator and he takes us to war.

So since congress has and will fail to do its job of oversight, the only thing left is to create a new government since this one is bringing about tyranny.

Posted: Wednesday, March 3, 2010
Article comment by: T. SEEKRR

It's really funny to see just how many are surprised by this administration shenanigans! The writing was on the wall, from ACORN to Chicago Mob Politics, which includes our very own known American Terrorist!

Here a question for America...

What's going to be the most expensive commodity of the 21 Century?


I'm a big fan of acronyms I hope you enjoy this one...


One Big Ass Mistake America!

Posted: Tuesday, January 26, 2010
Article comment by: Hannah

I'm not worried about counting us, I'm worried about the million other invasive questions. And no, Eric, this isn't the "land of the free" anymore.

Posted: Wednesday, January 6, 2010
Article comment by: MIKE


Posted: Friday, September 25, 2009
Article comment by: Eric

I am amazed at how many bigots there are in this country we call the land of the free home of the brave. If you want to kick out all the "illegals" and "non-citizens" then go for it...but just a forewarning, these are the people that are doing all the sh"t jobs that us "natives" don't feel the need or want to do. My concern is lies with the lazy "Americans" that are sitting on their welfare checks and government handouts and truly robbing the system of the taxpayer dollars. The walls will come down whether by choice or force, but its the nations choice as to whether we want to become a nation as was declared by our forefathers, or a nation of bigots and hypocrites.

Posted: Sunday, September 6, 2009
Article comment by: Palmer

The constitution means nothing to the Obama administration. We made a mistake putting him in office.

Posted: Friday, September 4, 2009
Article comment by: Mr. Strauterman

the whole thing sounds inadequate to me. I think they should wait until our economy hopefully strengthens to take a census. This way we have more strength to help push out illegals to have a more fair count. This would keep the dems at a power level that we can all accomodate

Posted: Thursday, September 3, 2009
Article comment by: Linda Bentley

Hi, Richard

You may find the case I wrote about in this article interesting, or at least amusing. I can send you the complaint if you want.

Linda Bentley
Sonoran News
6812 E Cave Creek Rd #1
Cave Creek, AZ 85331
480-488-2021 ext 26
480-488-6216 fax

Posted: Tuesday, August 25, 2009
Article comment by: joe turner

"After black lawmakers chimed in as well, it didn't take the Obama White House long to respond, just two days, in fact." I don't know what this means and what it has to do with the article. Chimed in with what? what did they say or do? Doesn't this sound a bit fishy to you? I detect the R word strongly in this article.

Posted: Tuesday, August 25, 2009
Article comment by: Brittanicus

If another AMNESTY sneaks past Americans, then their must be at least a ten year moratorium of the 20 million plus Path to Citizenship recipients. The consequence for these millions getting immediate access to government welfare, would be financial ruin to our national wilting economy. Nor will a new amnesty end there, because millions more in every impoverished niche around the world, will come--expecting a welcome? Only if we enforce the border with engagement by the National Guard, who are armed and ready to stop drug smugglers, terrorists and a host of other criminal enterprises, will US citizens feel safe. We desperately need strong immigration laws such as E-Verification. Do not let politicians undermine the "Rule of Law" and our very Constitution pandering to the profiteering special interest lobbyists, while jobless American workers numbers grow.

Of all the states that should be using E-Verify, is the illegal immigrant sanctuary state of California. Illegal immigration attributed to the near bankruptcy of California and many of the bordering territories.

We are still conveying many entitlement programs to illegal aliens and their families, with extorted taxes including health care. Free health care given in the hospitals and passed onto taxpayers. We have always been the recipients of business welfare and likely always will be? Pariah businesses that hire illegals, never pay anything to their support. THATS THE TAXPAYERS YOKE TO BARE! . GET RAW ANSWERS AT NUMBERSUSA Contact those in WASHINGTON! NO MORE AMNESTIES. USE ATTRITION TO DEPORT THEM THROUGH E-VERIFY, 287 G, NO MATCH SOCIAL SECURITY LETTERS AND LIGHTENING ICE RAIDS. CONTACT YOUR POLITICIAN 202-224-3121 AND DEMAND NO WEAKENING OF CURRENT 1986 (IRCA), also Simpson-Mazzoli Act (Pub.L. 99-603, 100 Stat. 3359,LAWS? We already have the laws, that become saturated with corruption. The legislation made it illegal to knowingly hire or recruit illegal immigrants (immigrants who do not possess lawful work authorization), required employers to attest to their employees' immigration status. It also granted amnesty to certain illegal immigrants who entered the United States before January 1, 1982 and had resided there continuously. From its inception it was full of fraud leading to 5 million illegal aliens instead of 3.5 receiving green cards.

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