Dealing a blow to the Clinton administration and victory to congressional Republicans, a three-judge federal panel on Monday unanimously ruled against a White House plan to use a statistical method to count Americans in the year 2000 census.
The judges, responding to a lawsuit filed by the GOP-led House of Representatives, said the proposed use of statistical sampling by the Census Bureau to supplement a head count of the nation’s population would violate the federal Census Act.
The administration has argued that sampling, a way of estimating the size of a group when a complete head count is difficult or impossible, would help avoid the undercounts of minorities and the poor that plagued the 1990 Census.
Republicans say the plan is politically inspired and would increase the tally of people who tend to vote Democratic, an advantage for Democrats when political districts are redrawn after the year 2000, particularly those for House seats.
The Commerce Department, the Census Bureau’s parent agency, said it would seek to have the decision appealed to the Supreme Court, which doesn’t return to work until October. That ensures continued uncertainty over the census count, complicating the Census Bureau’s preparations for the massive undertaking.
The federal government uses the census figures to decide funding levels for numerous social-spending programs such as the provision of school lunches and health services. For that reason a number of states, counties and cities, including Chicago, joined the administration’s side in the lawsuit.
Siding with Republicans in interpreting the federal law, the judges said that Congress intended to permit the use of sampling in some population surveys, like those done by the Census Bureau at mid-decade. But they said Congress clearly banned the use of sampling in the decennial censuses required by the Constitution to reapportion House seats.
The panel said that because the Census Act was clear in prohibiting sampling, it was unnecessary to address the constitutionality of the method.
The Constitution calls for an “actual enumeration” of the nation’s population.
The opinion was written by U.S. District Court Judge Royce C. Lamberth, who was appointed to the federal bench by President Ronald Reagan. He was joined by another Reagan appointee, Appeals Court Judge Douglas Ginsburg and District Judge Ricardo Urbina, a Clinton appointee.
Rep. Dennis Hastert (R-Ill.), a member of the House leadership who has managed much of the census battle for the Republicans, said he was “obviously very encouraged by today’s ruling.
“The three-judge panel, which includes a Clinton appointee, unanimously sided with those of us on the side of common sense who are trying to prevent the Clinton administration from trampling over the Constitution solely for their political gain,” Hastert said.
Commerce Secretary William Daley said the fight isn’t over. “We are obviously disappointed with today’s ruling on the census,” Daley said in a statement.
“What is at stake here is the ability of the Census Bureau to use the most modern scientific methods to ensure an accurate and fair census,” he said. “We will ask the solicitor general to appeal the ruling and we expect the Supreme Court to reverse it.”
That is not an unreasonable expectation, said Laurence Tribe, a Harvard University law professor who has closely followed the census debate. “I think (Monday’s decision) is quite vulnerable to reversal by the Supreme Court on appeal.
“The fact that the decision was unanimous is perhaps misleading,” Tribe said. “It just happens that these three judges read the precedents this way and read the Census Act this way and I think they were wrong on both counts.”
For instance, the three-judge panel took a position that the House had the legal standing to plead its case in court. But Tribe said that view is “almost certainly mistaken and is very hard to reconcile with the Supreme Court’s decision in Raines vs. Byrd, where it held that Sen. (Robert) Byrd did not have standing to challenge the line-item veto.”
In his opinion, Lamberth ruled the lawmakers have legal standing to sue, saying the House “has a concrete and particularized interest in its lawful composition. . . . In sum, the injuries (from the new census) are now imminent.”
Rep. Rod Blagojevich (D-Ill.), who sits on the House subcommittee that oversees the census, said the judicial panel framed the question too narrowly. “They erred in not looking at the constitutional aspect of it,” he said.
“In matters like this, when we’re discussing something as fundamental as counting people in America to allow them all the rights and privileges as citizens or legal immigrants in our society, I would think that constitutional concerns should be considered in any ruling and decision,” Blagojevich said.
The decision was not just a setback for the administration and House Democrats but also for many cities and states with large percentages of minorities–such as Chicago and Illinois–and for children, who were significantly undercounted in 1990.
If the Census Bureau can’t use sampling, the result could be the expenditure of millions of additional taxpayer dollars, the administration has said. That money would have to be spent on sending out additional waves of enumerators, the foot soldiers of the national census, to try to get to the hardest-to-reach members of the population.
For all the increased spending and efforts, the census’ accuracy would not necessarily improve, the administration and many experts contend. The abandonment of sampling would “make for the less accurate census,” said Eugene Ericksen, professor of sociology and statistics at Temple University. “It’s a shame,” he said of the court decision.
“The use of sampling and adjustment and so forth was a way to improve the quality of the census data,” he said. “Because the volume of omissions that were in these enumerations was so high, the bureau needed to use sampling so they could improve the quality of the data.”
