Critics say 2010 census is unconstitutional (counts illegal aliens)

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.

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."

"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."

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."

I totally agree. The census is about legal representation by our elected Representatives. Illegal aliens have no representation.

“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.”

Republicans do not “say” IT’S A PROVEN FACT!

Listen, this is clearly unconstitutional, and ACORN clearly is going to orchestrate this, but we are powerless to stop them! The courts do nothing, republicans were seemingly castrated a decade ago in order to appear “bipartisan”. Aside from armed conflict, we can't do anything.

I know very little about Islam except that they’re a pox on civilized society, but conservatives need to do something to offset the rampant fraud that will be perpetrated by ACORN people.

Make no mistake, they intend to massage the numbers to give themselves as many congressional seats as possible and we have all known for years that the truth means absolutely nothing to leftists. It’s time the conservatives do something to level the playing field.

I wish congress could pass a law that each enumerated person had to have a social security number that corresponded with the name they provided. That would be a solution every honest person should be able to live with. Until that happens, we have to fight fire with fire.

I wish congress could pass a law that each enumerated person had to have a social security number that corresponded with the name they provided.

While that may be your wish, it would be in clear violation of the Constitution which states, that we must count the whole number of persons in each State.

BTW, as far as I can see, there is no part of the US Code that mandates you answer questions from a Commerce Department contractor (i.e., ACORN). If I understand correctly, the law (Title 13 US Code) only mandates you answer questions posed to you by an actual government employee. Please, somebody, correct me if I’m wrong.
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Isn’t it in our interests to at least tell them how many live in our household (right?)

But, the way they count the elections in WA and MN, you can guarantee they’ll mess with the census numbers.

I do NOT trust them as far as I can throw ‘em. Maybe we should try that? THROW ‘EM OUT!!

the sooner we get rid of acorn and orgs like it the better.
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Recall the uproar over Acorn funding leading up to 11/2008. How in world can they have activist groups like this doing something so VITAL and basic, and non-partisan as this??

It’s unconscienable!

Well, the whole GPS scare is silly. You've been able to put an address into mapquest/google/ms live, and get a sat image of the address for years now. I've used it as a house hunting tool to get a lay of the land to determine if I even wanted to go see the house in person. MS Live was particularly nice in that in addition to the look down view, it allowed for a more angled look, from all 4 compass points.

Google Earth on my iPhone; put in address and there you are, complete with Lon/Lat coordinates.

they should not have funding or contracts ......because they have an interest in the outcome.....we should never force taxpayers to support organizations like this...i dont see how it can be constitutional make taxpayers support an organizagion who is working against part of the population...
its like paying someone to shoot you.

You need to think this thru a bit.

Google MAP is not a government data base, and using it for surveillance data on US citizens would be highly illegal.
Not to mention that Google maps could have an accessible record of who the government is surveilling.

Now the whihte house can set anyone under the eye of Sat Surveillance, no records, no trail and no justification. There isn;t even a federal agency in the way to track its use. The White house has it directly.

You can call me silly all you want. This is a grave and serious matter.

You are certainly free to disagree all you want,but your position hardly holds up to any genuine scrutiny.

I hope that there will be suits in court blocking this count done this way from happening, and if that does not succeed, suits after the count challenging the results. Any red state that has grown and deserves a new seat or new seats in the US may well have to sue and fight very hard to get its citizens deserve.

Not to mention that ACORN, an organization that should be investigated under the RICO statutes, has been tasked with
“assitsting” in the census process by the Obama Administration.
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This is obscene. One of the accused, has already struck a plea agreement in NV, I think...they are flipping and going up the stack...

How can Obama admin, in good conscience, keep this group involved...

Oh...I answered my question, didn’t I?

And this is why it is absolutely critical that we take back the Congress and as many state legislatures as possible in 2010. If we don't do it then, it'll be too late.

they will have their numbers in place for Nov 2010 - false or not...I fear there will not be a legitimate election again -

These socialist/marxists have had their ducks in a row for a long time... I suspicion the only 'hope' we have is that, somehow, the little caesar is dethroned long before then

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