OCTOBER TERM, 1998
Syllabus
DEPARTMENT OF COMMERCE ET AL.
v. UNITED STATES HOUSE OF
REPRESENTATIVES ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA
No. 98-404. Argued November 30, 1998-Decided January
25,1999*
The Constitution's Census Clause authorizes Congress to direct
an "actual Enumeration" of the American public every 10 years to
provide a basis for apportioning congressional representation among
the States. Pursuant to this authority, Congress has enacted the
Census Act, 13 U. S. C. § 1
et seq., delegating the
authority to conduct the decennial census to the Secretary of
Commerce (Secretary). The Census Bureau (Bureau), which is part of
the Department of Commerce, announced a plan to use two forms of
statistical sampling in the 2000 Decennial Census to address a
chronic and apparently growing problem of "undercounting" of some
identifiable groups, including certain minorities, children, and
renters. In early 1998, two sets of plaintiffs filed separate suits
challenging the legality and constitutionality of the plan. The
suit in No. 98-564 was filed in the District Court for the Eastern
District of Virginia by four counties and residents of 13 States.
The suit in No. 98-404 was filed by the United States House of
Representatives in the District Court for the District of Columbia.
Each of the courts held that the plaintiffs satisfied the
requirements for Article III standing, ruled that the Bureau's plan
for the 2000 census violated the Census Act, granted the
plaintiffs' motion for summary judgment, and permanently enjoined
the planned use of statistical sampling to determine the population
for congressional apportionment purposes. On direct appeal, this
Court consolidated the cases for oral argument.
Held:
1. Appellees in No. 98-564 satisfy the requirements of Article
III standing. In order to establish such standing, a plaintiff must
allege personal injury fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief.
E. g., Allen v.
Wright, 468 U. S. 737, 751. A
plaintiff must establish that there exists no genuine issue of
material fact as to justiciability or the merits in order to
prevail on a summary judgment motion. See,
e. g.,
Lujan v.
*Together with No. 98-564,
Clinton, President of the United
States, et al. v.
Glavin et al., on appeal from the
United States District Court for the Eastern District of
Virginia.
317
National Wildlife Federation, 497 U. S. 871, 884. The
present controversy is justiciable because several of the appellees
have met their burden of proof regarding their standing to bring
this suit. In support of their summary judgment motion, appellees
submitted an affidavit that demonstrates that it is a virtual
certainty that Indiana, where appellee Hofmeister resides, will
lose a House seat under the proposed census 2000 plan. That loss
undoubtedly satisfies the injury-in-fact requirement for standing,
since Indiana residents' votes will be diluted by the loss of a
Representative. See,
e. g.,
Baker v.
Carr,
369 U. S. 186,
208. Hofmeister also meets the second and third standing
requirements:
There is undoubtedly a "traceable" connection between the use of
sampling in the decennial census and Indiana's expected loss of a
Representative, and there is a substantial likelihood that the
requested relief-a permanent injunction against the proposed uses
of sampling in the census-will redress the alleged injury.
Appellees have also established standing on the basis of the
expected effects of the use of sampling in the 2000 census on
intrastate redistricting. Appellees have demonstrated that voters
in nine counties, including several of the appellees, are
substantially likely to suffer intrastate vote dilution as a result
of the Bureau's plan. Several of the States in which the counties
are located require use of federal decennial census population
numbers for their state legislative redistricting, and States use
the population numbers generated by the federal decennial census
for federal congressional redistricting. Appellees living in the
nine counties therefore have a strong claim that they will be
injured because their votes will be diluted vis-a-vis residents of
counties with larger undercount rates. The expected intrastate vote
dilution satisfies the injury-in-fact, causation, and
redressibility requirements. Pp. 328-334.
2. The Census Act prohibits the proposed uses of statistical
sampling to determine the population for congressional
apportionment purposes. In 1976, the provisions here at issue took
their present form. Congress revised 13 U. S. C. § 141(a), which
authorizes the Secretary to "take a decennial census ... in such
form and content as he may determine, including the use of sampling
procedures." This broad grant of authority is informed, however, by
the narrower and more specific § 195. See
Green v.
Bock
Laundry Machine Co., 490 U. S. 504, 524. As
amended in 1976, § 195 provides: "Except for the determination of
population for purposes of [congressional] apportionment ..., the
Secretary shall, if he considers it feasible, authorize the use of
... statistical ... 'sampling' in carrying out the provisions of
this title." Section 195 requires the Secretary to use sampling in
assembling the myriad demographic data that are collected in
connection with the decennial census, but it maintains the
longstanding prohibition on the use of such sampling in calcu-
318
Syllabus
lating the population for congressional apportionment. Absent
any historical context, the "except/shall" sentence structure in
the amended § 195 might reasonably be read as either permissive or
prohibitive. However, the section's interpretation depends
primarily on the broader context in which that structure appears.
Here, that context is provided by over 200 years during which
federal census statutes have uniformly prohibited using statistical
sampling for congressional apportionment. The Executive Branch
accepted, and even advocated, this interpretation of the Census Act
until 1994. pp. 334-343.
3. Because the Court concludes that the Census Act prohibits the
proposed uses of statistical sampling in calculating the population
for purposes of apportionment, the Court need not reach the
constitutional question presented. See,
e. g., Spector Motor
Service, Inc. v.
McLaughlin,
323 U. S. 101, 105. The
Court's affirmance of the judgment in No. 98-564 also resolves the
substantive issues presented in No. 98-404, therefore that case no
longer presents a substantial federal question and the appeal
therein is dismissed. Cf.
Sanks v.
Georgia, 401 U. S. 144, 145. Pp.
343-344.
No. 98-404, 11 F. Supp. 2d 76, appeal dismissed; No. 98-564, 19
F. Supp. 2d 543, affirmed.
O'CONNOR, J., delivered the opinion of the Court with respect to
Parts I, III-A, and IV, in which REHNQUIST, C. J., and SCALIA,
KENNEDY, and THOMAS, JJ., joined, the opinion of the Court with
respect to Part II, in which REHNQUIST, C. J., and SCALIA, KENNEDY,
THOMAS, and BREYER, JJ., joined, and an opinion with respect to
Part III-B, in which REHNQUIST, C. J., and KENNEDY, J., joined.
SCALIA, J., filed an opinion concurring in part, in which THOMAS,
J., joined, and in which REHNQUIST, C. J., and KENNEDY, J., joined
as to Part II,
post, p. 344. BREYER, J., filed an opinion
concurring in part and dissenting in part,
post, p. 349.
STEVENS, J., filed a dissenting opinion, in which SOUTER and
GINSBURG, JJ., joined as to Parts I and II, and in which BREYER,
J., joined as to Parts II and III,
post, p. 357. GINSBURG,
J., filed a dissenting opinion, in which SOUTER, J., joined,
post, p. 365.
Solicitor General Waxman argued the cause for appellants in both
cases. With him on the briefs were Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and
Mark B. Stern. Joseph Remcho, Kathleen J. Purcell, and James C.
Harrison filed briefs for the California Legislature et al. as
appellees under this Court's Rule 18.2. Brian S. Currey, Richard M.
Jones,
319
Thomas M. Riordan, Karen M. Wahle, Thomas J. Karr, Alfredo
Barrios, James K. Hahn, Jessica F. Heinz, Lorna B. Goodman, David
B. Goldin, De Witt W Clinton, Mary F. Wawro, Donovan M. Main,
Manuel A. Valenzuela, Brian L. Crow, Louise H. Renne, Burk E.
Delventhal, Robert A. Ginsburg, Jack Ballas, Susan T. Taylor, Helen
M. Gros, Daniel E. Muse, Stan Sharoff, John R. Calhoun, Joan Gallo,
George Rios, Jayne W Williams, Ann M. Ravel, Susan B. Swain, Alan
K. Marks, William C. Katzenstein, and Tom Udall filed briefs for
the City of Los Angeles et al. as appellees under this Court's Rule
18.2. Moses Silverman and Jeannie S. Kang filed briefs for the
National Korean American Service & Education Consortium, Inc.,
et al. as appellees under this Court's Rule 18.2. Paul M. Smith,
Donald B. Verrilli, Jr., and J. Gerald Hebert filed briefs for
Richard A. Gephardt et al. as appellees under this Court's Rule
18.2.
Maureen E. Mahoney argued the cause for appellee United States
House of Representatives in No. 98-404. With her on the brief were
Richard P. Bress, Geraldine R. Gennett, Kerry W Kircher, and
Michael L. Stern. Michael A. Carvin argued the cause for appellees
Matthew J. Glavin et al. in No. 98-564. With him on the brief were
David H. Thompson, Theodore M. Cooperstein, L. Lynn Hogue, Valle
Simms Dutcher, Edward J. Fuhr, and Richard B. Harper.t
tBriefs of
amici curiae urging reversal in No. 98-404
were filed for the State of Texas by
Dan Morales, Attorney
General of Texas,
Jorge Vega, First Assistant Attorney
General, and
Javier P. Guajardo and
Daniel T. Torrez,
Special Assistant Attorneys General; for the County of Westchester
by
Alan D. Scheinkman and
Stacey Dolgin-Kmetz; for
the American Federation of State, County, and Municipal Employees
et al. by
Peter J.
Rubin and
Jonathan S.
Massey; for the Brennan Center for Justice et al. by
Burt
Neuborne, Deborah Goldberg, Steven R. Shapiro, and
Louis M.
Bograd; for the Japanese American Citizens League by
Mike
Traynor, William S.
Freeman, Darryl M. Woo, and
Gary
H. Ritchey; for the NAACP Legal Defense and Educational Fund,
Inc., by
Elaine R. Jones, Theodore M. Shaw, Norman J.
Chachkin, and
Jacqueline A. Ber-
320
JUSTICE O'CONNOR delivered the opinion of the Court, except as
to Part III-B.
The Census Bureau (Bureau) has announced a plan to use two forms
of statistical sampling in the 2000 Decennial Census to address a
chronic and apparently growing problem of "undercounting" certain
identifiable groups of individuals. Two sets of plaintiffs filed
separate suits challenging the legality and constitutionality of
the Bureau's plan. Convened as three-judge courts, the District
Court for the Eastern District of Virginia and the District Court
for the District of Columbia each held that the Bureau's plan for
the 2000 census violates the Census Act, 13 U. s. C. § 1
et
seq., and both courts permanently enjoined the Bureau's planned
use of statistical sampling to determine the population for
purposes of congressional apportionment. 19 F. Supp. 2d 543 (ED Va.
1998); 11 F. Supp. 2d 76 (DC 1998). We noted probable jurisdiction
in both cases, 524 U. S. 978 (1998); 525 u. S. 924 (1998), and
consolidated the cases for oral argument, 525
rien; for Jerome Gray et al. by Barbara R. Arnwine, Thomas J.
Henderson, and Edward Still.
Donald Dinan filed a brief for the District of Columbia
State Democratic Committee urging reversal in No. 98-564.
Briefs of
amici curiae urging affirmance in No. 98-404
were filed for the State of Wisconsin et al. by
James E.
Doyle, Attorney General of Wisconsin, and
Peter C.
Anderson, Assistant Attorney General,
Mike Fisher,
Attorney General of Pennsylvania, and
Calvin R. Coons,
Senior Deputy Attorney General; and for the Washington Legal
Foundation et al. by
Daniel J.
Popeo and
Richard
A. Samp.
Briefs of
amici curiae urging affirmance in No. 98-564
were filed for the City of Omaha by
Paul D. Kratz; and for
the Landmark Legal Foundation by
Richard P. Hutchison.
William J.
Olson, John S.
Miles, and
John F.
Callender, Jr., filed a brief for the
National Citizens Legal Network et al. as
amici curiae
urging affirmance in both cases.
Briefs of
amici curiae were filed in No. 98-404 for the
Foundation to Preserve the Integrity of the Census by
James B.
Hamlin; and for the National Republican Legislators Association
et al. by
E. Mark Braden and
Clark Bensen.
321
u. S. 924 (1998). We now affirm the judgment of the District
Court for the Eastern District of Virginia, and we dismiss the
appeal from the District Court for the District of Columbia.
I A
Article I, § 2, cl. 3, of the United States Constitution states
that "Representatives ... shall be apportioned among the several
States ... according to their respective Numbers." It further
requires that "[t]he 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."
Ibid. Finally, § 2 of the
Fourteenth Amendment provides that "Representatives shall be
apportioned among the several States according to their respective
numbers, counting the whole number of persons in each State,
excluding Indians not taxed."
Pursuant to this constitutional authority to direct the manner
in which the "actual Enumeration" of the population shall be made,
Congress enacted the Census Act (hereinafter Census Act or Act), 13
U. S. C. § 1
et seq., delegating to the Secretary of
Commerce (Secretary) authority to conduct the decennial census. §
4. The Act provides that 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." § 141(a). It further
requires that "[t]he tabulation of total population by States ...
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." § 141(b). Using this information, the President
must then "transmit to the Congress a statement showing the whole
number of persons in each State ... and the number of
Representatives to which each State
322
would be entitled." 2 U. S. C. § 2a(a). Within 15 days
thereafter, the Clerk of the House of Representatives must "send to
the executive of each State a certificate of the number of
Representatives to which such State is entitled." 2 U. S. C. §
2a(b) (1994 ed., Supp. III).
The instant dispute centers on the problem of "undercount" in
the decennial census. For the last few decades, the Bureau has sent
census forms to every household, which it asked residents to
complete and return. The Bureau followed up on the mailing by
sending enumerators to personally visit all households that did not
respond by mail. Despite this comprehensive effort to reach every
household, the Bureau has always failed to reach-and has thus
failed to count-a portion of the population. This shortfall has
been labeled the census "undercount."
The Bureau has been measuring the census undercount rate since
1940, and undercount has been the subject of public debate at least
since the early 1970's. See M. Anderson, The American Census: A
Social History 221-222 (1988). It has been measured in one of two
ways. Under one method, known as "demographic analysis," the Bureau
develops an independent estimate of the population using birth,
death, immigration, and emigration records. U. S. Dept. of
Commerce, Bureau of the Census, Report to Congress: The Plan for
Census 2000, p. 2, and n. 1 (Aug. 1997) (hereinafter Census 2000
Report). A second method, first used in 1990, involves a large
sample survey, called the "Post-Enumeration Survey," that is
conducted in conjunction with the decennial census. The Bureau
compares the information gathered during the survey with the
information obtained in the census and uses the comparison to
estimate the number of unenumerated people in the census. See
National Research Council, Modernizing the U. S. Census 30-31 (B.
Edmonston & C. Schultze eds. 1995).
Some identifiable groups-including certain minorities, children,
and renters-have historically had substantially
323
higher undercount rates than the population as a whole. See
Census 2000 Report 3-4. Accordingly, in previous censuses, the
Bureau sought to increase the number of persons from whom it
obtained information. In 1990, for instance, the Bureau attempted
to reach out to traditionally undercounted groups by promoting
awareness of the census and its importance, providing access to
Spanish language forms, and offering a toll free number for those
who had questions about the forms.
I d., at 4. Indeed, the
1990 census was "better designed and executed than any previous
census."
Id., at 2. Nonetheless, it was less accurate than
its predecessor for the first time since the Bureau began measuring
the undercount rate in 1940.
Ibid.
In a further effort to address growing concerns about undercount
in the census, Congress passed the Decennial Census Improvement Act
of 1991, which instructed the Secretary to contract with the
National Academy of Sciences (Academy) to study the "means by which
the Government could achieve the most accurate population count
possible." § 2(a)(1), 105 Stat. 635, note following 13 U. S. C. §
141. Among the issues the Academy was directed to consider was "the
appropriateness of using sampling methods, in combination with
basic data-collection techniques or otherwise, in the acquisition
or refinement of population data."
Ibid. Two of the three
panels established by the Academy pursuant to this Act concluded
that "[d]ifferential undercount cannot be reduced to acceptable
levels at acceptable costs without the use of integrated coverage
measurement," a statistical sampling procedure that adjusts census
results to account for undercount in the initial enumeration,
Census 2000 Report 7-8, and all three panels recommended including
integrated coverage measurement in the 2000 census, id., at 29. See
National Research Council, Preparing for the 2000 Census: Interim
Report II (A. White & K. Rust eds. 1997) (report of Panel to
Evaluate Alternative Census Methodologies); Modernizing the U. S.
Census,
supra (report of Panel
324
on Census Requirements in the Year 2000 and Beyond); U. S. Dept.
of Commerce, Bureau of the Census, Census 2000 Operational Plan
(1997).
In light of these studies and other research, the Bureau
formulated a plan for the 2000 census that uses statistical
sampling to supplement data obtained through traditional census
methods. The Bureau plan provides for two types of sampling that
are the subject of the instant challenge.1 First, appellees
challenge the proposed use of sampling in the Nonresponse Followup
program (NRFU). Under this program, the Bureau would continue to
send census forms to all households, as well as make forms
available in post offices and in other public places. The Bureau
expects that 67 percent of households will return the forms. See
Census 2000 Report 26. The Bureau then plans to divide the
population into census tracts of approximately 4,000 people that
have "homogenous population characteristics, economic status, and
living conditions."
Id., at 27. The Bureau would then visit
a randomly selected sample of nonresponding housing units, which
would be "statistically representative of all housing units in [a]
nonresponding tract."
Id., at 28. The rate of nonresponse
followup in a tract would vary with the mail response rate to
ensure that the Bureau obtains census data from at least 90 percent
of the housing units in each census tract.
Ibid. For
instance, if a census tract had 1,000 housing units and 800 units
responded by mail, the Bureau would survey 100 out of the 200
nonresponding units to obtain information about 90 percent of the
housing units. However, if only 400 of the 1,000 housing units
responded by mail, the Bureau would visit 500 of the 600
nonresponding units to achieve the same result.
I d., at 29.
The informa-
1 The Postal Vacancy Check program is not challenged here. See
19 F. Supp. 2d 543, 545 (ED Va. 1998) ("The Bureau's plan to use
sampling in the Postal Vacancy Check is not in dispute in this
lawsuit"). See also 11 F. Supp. 2d 76, 80 (DC 1998) ("The Postal
Vacancy Check sampling plan is not at issue in this
litigation").
325
tion gathered from the nonresponding housing units surveyed by
the Bureau would then be used to estimate the size and
characteristics of the nonresponding housing units that the Bureau
did not visit. Thus, continuing with the first example, the Bureau
would use information about the 100 nonresponding units it visits
to estimate the characteristics of the remaining 100 nonresponding
units on which the Bureau has no information. See
ibid.
The second challenged sampling procedure-which would be
implemented after the first is completed-is known as Integrated
Coverage Measurement (ICM). ICM employs the statistical technique
called Dual System Estimation (DSE) to adjust the census results to
account for undercount in the initial enumeration. The plan
requires the Bureau to begin by classifying each of the country's 7
million blocks into "strata," which are defined by the
characteristics of each block, including state, racial, and ethnic
composition, and the proportion of homeowners to renters, as
revealed in the 1990 census.
Id., at 30. The Bureau then
plans to select blocks at random from each stratum, for a total of
25,000 blocks, or an estimated 750,000 housing units.
Ibid.
Enumerators would then conduct interviews at each of those 750,000
units, and if discrepancies were detected between the pre-ICM
response and ICM response, a followup interview would be conducted
to determine the "true" situation in the home.
Ibid. The
information gathered during this stage would be used to assign each
person to a poststratum-a group of people who have similar chances
of being counted in the initial data collection-which would be
defined by state geographic subdivision (e. g., rural or urban),
owner or renter, age, sex, race, and Hispanic origin.
Id.,
at 31.
In the final stage of the census, the Bureau plans to use DSE to
obtain the final count and characteristics of the population. The
census plan calls for the Bureau to compare the dual systems of
information-that is, the data gathered on the sample blocks during
the ICM and the data gathered on
326
those same blocks through the initial phase of the censusto
produce an estimation factor for each poststratum. The estimation
factors would account for the differences between the ICM numbers
and the initial enumeration and would be applied to the initial
enumeration to estimate the total population and housing units in
each poststratum.
Id., at 31-32. The totals for the
poststrata would then be summed to determine state and national
population totals.
I d., at 32.
The Bureau's announcement of its plan to use statistical
sampling in the 2000 census led to a flurry of legislative
activity. Congress amended the Census Act to provide that,
"[n]otwithstanding any other provision of law, no sampling or any
other statistical procedure, including any statistical adjustment,
may be used in any determination of population for purposes of the
apportionment of Representatives in Congress among the several
States," H. R. Conf. Rep. No. 105-119, p. 67 (1997), but President
Clinton vetoed the bill, see Message to the House of
Representatives Returning Without Approval Emergency Supplemental
Appropriations Legislation, 33 Weekly Compo of Pres. Doc. 846, 847
(1997). Congress then passed, and the President signed, a bill
providing for the creation of a "comprehensive and detailed plan
outlining [the Bureau's] proposed methodologies for conducting the
2000 Decennial Census and available methods to conduct an actual
enumeration of the population," including an explanation of any
statistical methodologies that may be used. 1997 Emergency
Supplemental Appropriations Act for Recovery From Natural
Disasters, and for Overseas Peacekeeping Efforts, Including Those
in Bosnia, Tit. VIII, 111 Stat. 217. Pursuant to this directive,
the Commerce Department issued the Census 2000 Report. After
receiving the Report, Congress passed the 1998 Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, § 209, 111 Stat. 2482, which provides that the
Census 2000 Report and the Bureau's Census 2000 Operational Plan
"shall be deemed to constitute final agency
327
action regarding the use of statistical methods in the 2000
decennial census." The Act also permits any person aggrieved by the
plan to use statistical sampling in the decennial census to bring a
legal action and requires that any action brought under the Act be
heard by a three-judge district court.
Ibid. It further
provides for review by appeal directly to this Court.
Ibid.
B
The publication of the Bureau's plan for the 2000 census
occasioned two separate legal challenges. The first suit, styled
Clinton v.
Glavin, was filed on February 12, 1998, in
the District Court for the Eastern District of Virginia by four
counties (Cobb County, Georgia; Bucks County, Pennsylvania;
Delaware County, Pennsylvania; and DuPage County, Illinois) and
residents of 13 States (Arizona, California, Connecticut, Florida,
Georgia, Illinois, Indiana, Montana, Nevada, Ohio, Pennsylvania,
Virginia, and Wisconsin), who claimed that the Bureau's planned use
of statistical sampling to apportion Representatives among the
States violates the Census Act and the Census Clause of the
Constitution. They sought a declaration that the Bureau's plan is
unlawful and/or unconstitutional and an injunction barring use of
the NRFU and ICM sampling procedures in the 2000 census.
The District Court held that the case was ripe for review, that
the plaintiffs satisfied the requirements for Article III standing,
and that the Census Act prohibited use of the challenged sampling
procedures to apportion Representatives. 19 F. Supp. 2d, at 547,
548-550, 553. The District Court concluded that, because the
statute was clear on its face, the court did not need to reach the
constitutional questions presented.
Id., at 553. It thus
denied defendants' motion to dismiss, granted plaintiffs' motion
for summary judgment, and permanently enjoined the use of the
challenged sampling procedures to determine the population for
purposes of congressional apportionment.
Id., at 545, 553.
We noted probable jurisdiction on October 9, 1998. 525 U. S.
924.
328
The second challenge was filed by the United States House of
Representatives on February 20, 1998, in the District Court for the
District of Columbia. The House sought a declaration that the
Bureau's proposed use of sampling to determine the population for
purposes of apportioning Members of the House of Representatives
among the several States violates the Census Act and the
Constitution. The House also sought a permanent injunction barring
use of the challenged sampling procedures in the apportionment
aspect of the 2000 census.
The District Court held that the House had Article III standing,
the suit was ripe for review, equitable concerns did not warrant
dismissal, the suit did not violate separation of powers
principles, and the Census Act does not permit the use of the
challenged sampling procedures in counting the population for
apportionment. 11 F. SUpp. 2d, at 93, 95, 97, 104. Because it held
that the Census Act does not allow for the challenged sampling
procedures, it declined to reach the House's constitutional
challenge under the Census Clause.
I d., at 104. The
District Court denied the defendants' motion to dismiss, granted
the plaintiffs' motion for summary judgment, and issued an
injunction preventing defendants from using the challenged sampling
methods in the apportionment aspect of the 2000 census.
Id.,
at 79, 104. The defendants appealed to this Court and we noted
probable jurisdiction on September 10, 1998, 524 U. S. 978, and
consolidated this case with
Clinton v.
Glavin, No.
98-564, for oral argument, 525 U. S. 924 (1998).
II
We turn our attention first to the issues presented by
Clinton v.
Glavin, No. 98-564, and we begin our
analysis with the threshold issue of justiciability. Congress has
eliminated any prudential concerns in this case by providing that
"[a]ny person aggrieved by the use of any statistical method in
violation of the Constitution or any provision of law (other
329
than this Act), in connection with the 2000 census or any later
decennial census, to determine the population for purposes of the
apportionment or redistricting of Members in Congress, may in a
civil action obtain declaratory, injunctive, and any other
appropriate relief against the use of such method." § 209(b), 111
Stat. 2481. In addition, the District Court below correctly found
that the case is ripe for review, and that determination is not
challenged here. 19 F. Supp. 2d, at 547; see
Abbott
Laboratories v.
Gardner, 387 U. S. 136, 149
(1967). Thus, the only open justiciability question in this case is
whether appellees satisfy the requirements of Article III
standing.
We have repeatedly noted that in order to establish Article III
standing, "[a] plaintiff must allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct and likely
to be redressed by the requested relief."
Allen v.
Wright, 468 U.
S. 737, 751 (1984). See also
Lujan v.
Defenders of
Wildlife, 504 U.
S. 555, 560-561 (1992);
Valley Forge Christian College
v.
Americans United for Separation of Church and State,
Inc., 454 U. S.
464, 472 (1982). To prevail on a Federal Rule of Civil
Procedure 56 motion for summary judgment-as opposed to a motion to
dismiss-however, mere allegations of injury are insufficient.
Rather, a plaintiff must establish that there exists no genuine
issue of material fact as to justiciability or the merits. See
Lujan v.
National Wildlife Federation, 497 U. S. 871, 884
(1990). See also id., at 902 (Blackmun, J., dissenting). Here, the
District Court, considering a Rule 56 motion, held that the
plaintiffsappellees, residents from 13 States, had established
Article III standing to bring suit challenging the proposed method
for conducting the 2000 census because they had made "[g]eneral
factual allegations of injury resulting from Defendant's conduct."
19 F. Supp., at 548-550. The court did not, however, consider
whether there was a genuine issue of material fact as to
standing.
330
Nonetheless, because the record before us amply supports the
conclusion that several of the appellees have met their burden of
proof regarding their standing to bring this suit, we affirm the
District Court's holding. See
Director, Office of Workers'
Compensation Programs v.
Perini North River Associates,
459 U. S. 297,
303-305 (1983) (holding that presence of one party with standing
assures that controversy before Court is justiciable);
Arlington
Heights v.
Metropolitan Housing Development Corp.,
429 U. S. 252,
264, and n. 9 (1977) (same). In support of their motion for summary
judgment, appellees submitted the affidavit of Dr. Ronald F. Weber,
a professor of government at the University of Wisconsin, which
demonstrates that Indiana resident Gary A. Hofmeister has standing
to challenge the proposed census 2000 plan.2 Affidavit of Dr.
Ronald F. Weber, App. in No. 98-564, pp. 56-79 (hereinafter Weber
Affidavit). Utilizing data published by the Bureau, Dr. Weber
projected year 2000 populations and net undercount rates for all
States under the 1990 method of enumeration and under the
Department's proposed plan for the 2000 census. See id., at 62-63.
He then determined on the basis of these projections how many
Representatives would be apportioned to each State under each
method and concluded that "it is a virtual certainty that Indiana
will lose a seat ... under the Department's Plan."
Id., at
65.
Appellants have failed to set forth any specific facts showing
that there is a genuine issue of standing for trial. See
2 Appellants suggested at oral argument before this Court that
appellees had conceded that Indiana was not likely to lose a House
seat under the Bureau's sampling plan. Tr. of Oral Arg. 30. Indeed,
during a motions hearing before the District Court, appellees
"concede[d],"
arguendo, that Indiana "is not going to lose a
house [sic] seat." Tr. 85 (Aug. 7, 1998). Clearly this purported
concession was made only for the sake of argument and was treated
as such by the District Court. Moreover, appellants did not raise
this issue until oral argument before this Court. Accordingly, we
decline to view the appellees' statement as amounting to a true
concession.
331
Fed. Rule Civ. Proc. 56(e). Appellants have submitted two
affidavits that detail various deficiencies in the statistical
analysis performed by Dr. Weber. See Declaration of Signe 1.
Wetrogan, Assistant Division Chief for Population Estimates and
Projections, United States Bureau of the Census, App. in No.
98-564, pp. 92-99 (hereinafter Wetrogan Declaration); Declaration
of John H. Thompson, Associate Director for the Decennial Census,
United States Bureau of the Census, id., at 100-110 (hereinafter
Thompson Declaration). Appellants' experts do not, however,
demonstrate that any alleged flaw in Dr. Weber's analysis calls
into question his ultimate conclusion that Indiana is virtually
certain to lose a seat. One expert, for example, claims that Dr.
Weber's statement that Indiana is virtually certain to lose a seat
is "of dubious credibility," but she fails to provide any specific
factual support for this assertion. Wetrogan Declaration 97. She
claims that Dr. Weber used outdated population numbers, but she
does not demonstrate the impact that using more recent population
data would have on Dr. Weber's ultimate conclusion about Indiana.
Id., at 97-98. Neither of the appellants' experts
reestimates the populations of the States using more "accurate" or
"up-to-date" data to show that this data would produce different
results. Indeed, the Associate Director for the Decennial Census
specifically admits in his declaration that Dr. Weber used
precisely the same data that the Bureau uses "to help it estimate
expected error rates for Census 2000." Thompson Declaration 106.
Appellants have therefore failed to raise a genuine issue of
material fact regarding Indiana's loss of a Representative.
Appellee Hofmeister's expected loss of a Representative to the
United States Congress undoubtedly satisfies the injury-in-fact
requirement of Article III standing. In the context of
apportionment, we have held that voters have standing to challenge
an apportionment statute because "[t]hey are asserting 'a plain,
direct and adequate interest in
332
maintaining the effectiveness of their votes.'"
Baker v.
Carr, 369 U.
S. 186, 208 (1962) (quoting
Coleman v.
Miller,
307 U. S. 433,
438 (1939)). The same distinct interest is at issue here: With one
fewer Representative, Indiana residents' votes will be diluted.
Moreover, the threat of vote dilution through the use of sampling
is "concrete" and "actual or imminent, not 'conjectural' or
'hypotheticaL'"
Whitmore v.
Arkansas, 495 U. S. 149, 155
(1990). It is clear that if the Bureau is going to alter its plan
to use sampling in the 2000 census, it must begin doing so by March
1999. See Oversight of the 2000 Census: Putting the Dress
Rehearsals in Perspective, Hearing before the Subcommittee on the
Census of the House Committee on Government Reform and Oversight,
105th Cong., 2d Sess., 84 (1998) (statement of James F. Holmes,
Acting Director of the Bureau) ("I must caution that by this time
next year [i.
e., March 1999] the train for census 2000 has
to be on one track. If the uncertainty continues, if our staff
continues to have to do two jobs, ... [the census] will truly be
imperiled"). See also § 209, 111 Stat. 2480 (providing that the
Bureau's plan to use statistical sampling in the 2000 census
constitutes "final agency action"). And it is certainly not
necessary for this Court to wait until the census has been
conducted to consider the issues presented here, because such a
pause would result in extreme-possibly irremediable-hardship. In
addition, as Dr. Weber's affidavit demonstrates, Hofmeister meets
the second and third requirements of Article III standing. There is
undoubtedly a "traceable" connection between the use of sampling in
the decennial census and Indiana's expected loss of a
Representative, and there is a substantial likelihood that the
requested relief-a permanent injunction against the proposed uses
of sampling in the census-will redress the alleged injury.
Appellees have also established standing on the basis of the
expected effects of the use of sampling in the 2000 census on
intrastate redistricting. Dr. Weber indicated in his affi-
333
davit that "[i]t is substantially likely that voters in Maricopa
County, Arizona, Bergen County, New Jersey, Cumberland County,
Pennsylvania, LaSalle County, Illinois, Orange County, California,
St. Johns County, Florida, Gallatin County, Montana, Forsyth
County, Georgia, and Loudoun County, Virginia, will suffer vote
dilution in state and local elections as a result of the [Bureau's]
Plan." Weber Affidavit 77-78. Several of the appellees reside in
these counties,3 and several of the States in which these counties
are located require use of federal decennial census population
numbers for their state legislative redistricting. The New Jersey
Constitution, for instance, requires that state senators be
apportioned among Senate districts "as nearly as may be according
to the number of their inhabitants as reported in the last
preceding decennial census of the United States." Art. IV, § 1, ~1.
Similarly, the Pennsylvania Constitution requires that "[i]n each
year following the year of the Federal decennial census, a
Legislative Reapportionment Commission shall be constituted for the
purpose of reapportioning the Commonwealth." Art. 2, § 17(a).
Several of the other States cited by Dr. Weber have comparable
laws.4
3 The appellees that reside in the counties that Dr. Weber
predicts will lose population relative to other counties if
statistical sampling is used in the decennial census are Matthew
Glavin (Forsyth County, Georgia), Stephen Gons (Cumberland County,
Pennsylvania), James F. McLaughlin (Bergen County, New Jersey),
John Taylor (Loudoun County, Virginia), Deborah Hardman (St. Johns
County, Florida), Jim Lacy (Orange County, California), Helen V.
England (Maricopa County, Arizona), Arnie S. Carter (Gallatin
County, Montana), and Michael T. James (LaSalle County, Illinois).
Complaint for Declaratory and Injunctive Relief, App. in No. 98564,
pp. 9-12.
4 See,
e. g., Fla. Stat. § 11.031(1) (1998) ("All acts of
the Florida Legislature based upon population and all
constitutional apportionments shall be based upon the last federal
decennial statewide census"); Ga. Const., Art. 3, § 2 ("The
apportionment of the Senate and of the House of Representatives
shall be changed by the General Assembly as necessary after each
United States decennial census"); Ill. Const., Art. 4, § 3(b) ("In
the year following each Federal decennial census year, the General
Assembly by
334
Moreover, States use the population numbers generated by the
federal decennial census for federal congressional redistricting.
See
Karcher v.
Daggett, 462 U. S. 725, 738 (1983)
("[B]ecause the census count represents the 'best population data
available,' ... it is the only basis for good-faith attempts to
achieve population equality" (citation omitted)). Thus, the
appellees who live in the aforementioned counties have a strong
claim that they will be injured by the Bureau's plan because their
votes will be diluted vis-a-vis residents of counties with larger
"undercount" rates. Neither of appellants' experts specifically
contested Dr. Weber's conclusion that the nine counties were
substantially likely to lose population if statistical sampling
were used in the 2000 census. See Wetrogan Declaration 92-99;
Thompson Declaration 100-110. The experts' general assertions
regarding Dr. Weber's methodology and data are again insufficient
to create a genuine issue of material fact. For the reasons
discussed above, see
supra, at 332-333 and this page, this
expected intrastate vote dilution satisfies the injury-in-fact,
causation, and redressibility requirements. Accordingly, appellees
have again carried their burden under Rule 56 and have established
standing to pursue this case.
III
We accordingly arrive at the dispute over the meaning of the
relevant provisions of the Census Act. The District Court below
examined the plain text and legislative history of the Act and
concluded that the proposed use of statistical sampling to
determine population for purposes of apportioning congressional
seats among the States violates the Act. We agree.
law shall redistrict the Legislative Districts and
Representative Districts"); Ill. Compo Stat., ch. 55, § 2-3001c
(1993) (providing that for purposes of reapportionment of county
for election of county board, "'[p]opulation' means the number of
inhabitants as determined by the last preceding federal decennial
census").
335
A
An understanding of the historical background of the decennial
census and the Act that governs it is essential to a proper
interpretation of the Act's present text. From the very first
census, the census of 1790, Congress has prohibited the use of
statistical sampling in calculating the population for purposes of
apportionment. The First Congress enacted legislation requiring
census enumerators to swear an oath to make "a just and perfect
enumeration" of every person within the division to which they were
assigned. Act of Mar. 1, 1790, § 1, 1 Stat. 101. Each enumerator
was required to compile a schedule of information for his district,
listing by family name the number of persons in each family that
fell into each of five specified categories. See id., at 101-102.
Congress modified this provision in 1810, adding an express
statement that "the said enumeration shall be made by an actual
inquiry at every dwelling-house, or of the head of every family
within each district, and not otherwise," and expanding the number
of specifications in the schedule of information. Act of Mar. 26,
1810, § 1, 2 Stat. 565-566. The requirement that census enumerators
visit each home in person appeared in statutes governing the next
14 censuses.5
5 See Act of Mar. 14, 1820, 3 Stat. 548, 549 ("And the said
enumeration shall be made by an actual inquiry at every
dwelling-house, or of the head of every family, and not
otherwise"); Act of Mar. 23, 1830, § 1, 4 Stat. 384 ("[T]he said
enumeration shall be made by an actual inquiry by such marshals or
assistants, at every dwelling-house, or by personal inquiry of the
head of every family"); Act of Mar. 3, 1839, § 1, 5 Stat. 332
(substantially same); Act of May 23, 1850, § 10, 9 Stat. 430
(governing censuses of 18501870) ("[E]ach assistant ... shall
perform the service required of him, by a personal visit to each
dwelling-house, and to each family, in the subdivision assigned to
him, and shall ascertain, by inquiries made of some member of each
family, if anyone can be found capable of giving the information,
but if not, then of the agent of such family, the name of each
member thereof, the age and place of birth of each, and all the
other particulars specified in this act"); Act of Mar. 3, 1879, §
8,20 Stat. 475 ("It shall be the duty of each enumerator ... to
visit personally each dwelling-house in his subdivision, and each
family therein, and each individual living out of a
336
The current Census Act was enacted into positive law in 1954. It
contained substantially the same language as did its predecessor
statutes, requiring enumerators to "visit personally each dwelling
house in his subdivision" in order to obtain "every item of
information and all particulars required for any census or survey"
conducted in connection with the census. Act of Aug. 31, 1954, §
25(c), 68 Stat. 1012, 1015. Indeed, the first departure from the
requirement that the enumerators collect all census information
through personal visits to every household in the Nation came in
1957 at the behest of the Secretary. The Secretary asked Congress
to amend the Act to permit the Bureau to use statistical sampling
in gathering some of the census information. See Amendment of Title
13, United States Code, Relating to Census: Hearing on H. R. 7911
before the House Committee on the Post Office and Civil Service,
85th Cong., 1st Sess., 4-8 (1957) (hereinafter 1957 Hearing). In
response, Congress enacted § 195, which provided that, "[e]xcept
for the determination of population for apportionment purposes, the
Secretary may, where he deems it appropriate, authorize the use of
the statistical method known as 'sampling' in carrying out the
provisions of this title." 13 U. S. C. § 195 (1970 ed.). This
provision allowed the Secretary to authorize the use of
family in any place of abode, and by inquiry made of the head of
such family, or of the member thereof deemed most credible and
worthy of trust, or of such individual living out of a family, to
obtain each and every item of information and all the particulars
required by this act"); Act of Mar. 1, 1889, § 9,25 Stat. 763
(same); Act of Mar. 3, 1899, § 12,30 Stat. 1018 (substantially
same); Act of July 2,1909, § 12,36 Stat. 5 (same); Act of Mar. 3,
1919, § 12, 40 Stat. 1296 (same; also introducing provision
permitting enumerators to gather from neighbors information
regarding households where no one is present); Act of June 18,
1929, § 5, 46 Stat. 22 (governing 1930-1950 censuses)
(substantially same). See also W. Holt, The Bureau of the Census:
Its History, Activities and Organization 1-94 (1929) (describing
evolution of census); C. Wright, The History and Growth of the
United States Census (prepared for the Senate Committee on the
Census), S. Doc. No. 194, 56th Cong., 1st Sess., 7-130 (1900)
(same).
337
sampling procedures in gathering supplemental, nonapportionment
census information regarding population, unemployment, housing, and
other matters collected in conjunction with the decennial
census-much of which is now collected through what is known as the
"long form" -but it did not authorize the use of sampling
procedures in connection with apportionment of Representatives. See
also 1957 Hearing 7-8 ("Experience has shown that some of the
information which is desired in connection with a census could be
secured efficiently through a sample survey which is conducted
concurrently with the complete enumeration of other items").
In 1964, Congress repealed former § 25(c) of the Census Act, see
Act of Aug. 31, 1964, 78 Stat. 737, which had required that each
enumerator obtain "every item of information" by personal visit to
each household, 68 Stat. 1015. The repeal of this section permitted
the Bureau to replace the personal visit of the enumerator with a
form delivered and returned via the Postal Service. Pursuant to
this new authority, census officials conducted approximately 60
percent of the census through a new "mailout-mailback" system for
the first time in 1970. See M. Anderson, The American Census: A
Social History 210-211 (1988). The Bureau then conducted followup
visits to homes that failed to return census forms. Thus, although
the legislation permitted the Bureau to conduct a portion of the
census through the mail, there was no suggestion from any quarter
that this change altered the prohibition in § 195 on the use of
statistical sampling in determining the population for
apportionment purposes.
In 1976, the provisions of the Census Act at issue in this case
took their present form. Congress revised § 141 of the Census Act,
which is now entitled "Population and other census information." It
amended subsection (a) to authorize the Secretary to "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
338
he may determine, including the use of sampling procedures and
special surveys." 13 U. S. C. § 141(a). Congress also added several
subsections to § 141, among them a provision specifying that the
term "census of population," as used in § 141, "means a census of
population, housing, and matters relating to population and
housing." § 141(g). Together, these revisions provided a broad
statement that in collecting a range of demographic information
during the decennial census, the Bureau would be permitted to use
sampling procedures and special surveys.
This broad grant of authority given in § 141(a) is informed,
however, by the narrower and more specific § 195, which is
revealingly entitled, "Use of Sampling." See
Green v.
Bock Laundry Machine Co., 490 U. S. 504, 524
(1989). The § 141 authorization to use sampling techniques in the
decennial census is not necessarily an authorization to use these
techniques in collecting all of the information that is gathered
during the decennial census. We look to the remainder of the law to
determine what portions of the decennial census the authorization
covers. When we do, we discover that, as discussed above, § 195
directly prohibits the use of sampling in the determination of
population for purposes of apportionment.6
When Congress amended § 195 in 1976, it did not in doing so
alter the longstanding prohibition on the use of sampling in
matters relating to apportionment. Congress modified the section by
changing "apportionment purposes" to "purposes of apportionment of
Representatives in Congress among the several States" and changing
the phrase "may,
6 Although § 195 applies to both the mid-decade census and the
decennial census, the prohibition on the use of sampling in
determining the population for purposes of apportionment applies
only to the decennial census. See § 141(e)(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").
339
where he deems it appropriate" to "shall, if he considers it
feasible." 90 Stat. 2464. The amended section thus reads:
"Except for the determination of population for purposes of
apportionment of Representatives in Congress among the several
States, the Secretary shall, if he considers it feasible, authorize
the use of the statistical method known as 'sampling' in carrying
out the provisions of this title." 13 U. S. C. § 195. As amended,
the section now requires the Secretary to use statistical sampling
in assembling the myriad demographic data that are collected in
connection with the decennial census. But the section maintains its
prohibition on the use of statistical sampling in calculating
population for purposes of apportionment.
Absent any historical context, the language in the amended § 195
might reasonably be read as either permissive or prohibitive with
regard to the use of sampling for apportionment purposes. Indeed,
appellees and appellants each cite numerous examples of the
"except/shall" sentence structure that support their respective
interpretations of the statute. See,
e. g., Brief for
Appellee Glavin et al. in No. 98-564, p. 36, n. 36 (citing § 2 of
the Fourteenth Amendment, which provides that "when the right to
vote ... is denied to any of the male inhabitants of such State ...
except for participation in rebellion, or other crime, the
basis of representation therein
shall be reduced in the
proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such
State" (emphasis added)); Brief for Federal Appellant et al. in No.
98-404, p. 29, n. 15 (citing 2 U. S. C. §§ 179n(a)(1) and 384(a)
and 5 U. S. C. § 555(e), which contain the "except/shall"
formulation in contexts where appellants claim "the exception
cannot reasonably be construed as prohibiting the excepted
activity"). But these dueling examples only serve to illustrate
that the interpretation of the "except/shall" structure depends
primarily on the broader context in which that structure appears.
Here, the context is provided by over 200
340
years during which federal statutes have prohibited the use of
statistical sampling where apportionment is concerned. In light of
this background, there is only one plausible reading of the amended
§ 195: It prohibits the use of sampling in calculating the
population for purposes of apportionment.
In fact, the Bureau itself concluded in 1980 that the Census
Act, as amended, "clearly" continued the "historical precedent of
using the 'actual Enumeration' for purposes of apportionment, while
eschewing estimates based on sampling or other statistical
procedures, no matter how sophisticated." See 45 Fed. Reg. 69366,
69372 (1980). That same year, the Solicitor General argued before
this Court that "13 U. S. C. 195 prohibits the use of statistical
'sampling methods' in determining the state-by-state population
totals." Application for Stay in
Klutznick v.
Young,
O. T. 1979, No. A-533, p. 14, n. 7. See also
Young v.
Klutznick, 652 F.2d
617, 621 (CA6 1981) (noting that the Census Director and other
officials explained at trial that "since 1790 the census
enumeration has never been adjusted to reflect an estimated
undercount and that in their opinion Congress by statute had
prohibited such an adjustment in the figures used for purposes of
Congressional apportionment"), cert. denied
sub nom. Young
v.
Baldrige, 455 U. S. 939 (1982);
Philadelphia v.
Klutznik, 503 F. Supp. 663, 678 (ED Pa. 1980) (noting that
the Bureau argued that "Congress has clearly rejected the use of an
adjustment figure in the Census Act");
Carey v.
Klutznik, 508 F. Supp. 404 (SDNY 1980) ("Defendants
[including the Secretary of Commerce and the Director of the Bureau
of the Census] [contend that the] Census Act preclude[s]
utilization of statistical adjustment for the purpose of
apportioning representatives"), rev'd,
653 F.2d
732 (CA2 1981), cert. denied, 455 U. S. 999 (1982). The
administration did not adopt the contrary position until 1994, when
it first concluded that using statistical sampling to adjust census
figures would be consistent with the Census Act. Memorandum for the
Solicitor General from Assistant Attorney Gen-
341
eral Dellinger 1 (Oct. 7, 1994). In light of this history,
appellants make no claim to deference under
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837
(1984), on behalf of the Secretary's interpretation of the Census
Act. Reply Brief for Federal Appellant et al. in No. 98-404, p. 11,
n. 10.
In holding that the 1976 amendments did not change the
prohibition on the use of sampling in determining the population
for apportionment purposes, we do not mean to suggest, as JUSTICE
STEVENS claims in dissent, that the 1976 amendments had no purpose.
See
post, at 360-362. Rather, the amendments served a very
important purpose: They changed a provision that
permitted
the use of sampling for purposes other than apportionment into one
that
required that sampling be used for such purposes if
"feasible." They also added to the existing delegation of authority
to the Secretary to carry out the decennial census a statement
indicating that despite the move to mandatory use of sampling in
collecting nonapportionment information, the Secretary retained
substantial authority to determine the manner in which the
decennial census is conducted.
JUSTICE STEVENS' argument reveals a rather limited conception of
the extent and purpose of the decennial census. The decennial
census is "the only census that is used for apportionment
purposes,"
post, at 359, but the decennial census is not
only used for apportionment purposes. Although originally
established for the sole purpose of apportioning Representatives,
the decennial census has grown considerably over the past 200
years. It now serves as "a linchpin of the federal statistical
system by collecting data on the characteristics of individuals,
households, and housing units throughout the country." National
Research Council, Counting People in the Information Age 1 (D.
Steffey & N. Bradburn eds. 1994). Thus, to say that the 1976
amendments required the use of sampling in collecting
nonapportionment information but had no effect on the way in which
the Secre-
342
Opinion of O'CONNOR, J.
tary could determine the population for the purposes of
apportionment is to say that they had a purpose-just not the
purpose that JUSTICE STEVENS imagines.
JUSTICE BREYER'S interpretation of § 195 is equally
unpersuasive. JUSTICE BREYER agrees with the Court that the Census
Act prohibits the use of sampling as a substitute for traditional
enumeration methods. But he believes that this prohibition does not
apply to the use of sampling as a "supplement" to traditional
enumeration methods. This distinction is not borne out by the
language of the statute. The Census Act provides that sampling
cannot be used "for the determination of population for purposes of
apportionment of Representatives in Congress among the several
States." 13 U. S. C. § 195. Whether used as a "supplement" or as a
"substitute," sampling is still used in "determining"-that is, in
"the act of deciding definitely and firmly." Webster's Ninth New
Collegiate Dictionary 346 (1983). Under the proposed plan, the
population is not "determined," not decided definitely and firmly,
until the NRFU and ICM are complete. That the distinction drawn by
JUSTICE BREYER is untenable is perhaps best demonstrated by his own
inability to apply it consistently. He acknowledges that the NRFU
uses statistical sampling "to
determine the last 10% of the
population in each census tract,"
post, at 355 (emphasis
added), yet he nonetheless finds that it is a supplement to the
headcount and thus permitted by the Act.
B
The conclusion that the Census Act prohibits the use of sampling
for apportionment purposes finds support in the debate and
discussions surrounding the 1976 revisions to the Census Act. At no
point during the debates over these amendments did a single Member
of Congress suggest that the amendments would so fundamentally
change the manner in which the Bureau could calculate the
population for purposes of apportionment. See 122 Congo Rec.
35171-35175
343
(1976); id., at 9792-9803, 32251-32253, 33128-33132, 3330533307,
33815; Mid-Decade Census Legislation: Hearing on S. 3688 and H. R.
11337 before the Subcommittee on Census and Statistics of the House
Committee on the Post Office and Civil Service, 94th Cong., 2d
Sess. (1976). See also H. R. Rep. No. 94-944 (1976); H. R. Conf.
Rep. No. 94-1719 (1976); S. Rep. No. 94-1256 (1976). This is true
despite the fact that such a change would profoundly affect
Congress by likely shifting the number of seats apportioned to some
States and altering district lines in many others. Indeed, it tests
the limits of reason to suggest that despite such silence, Members
of Congress voting for those amendments intended to enact what
would arguably be the single most significant change in the method
of conducting the decennial census since its inception. That the
1976 changes to §§ 141 and 195 were not the focus of partisan
debate, see
post, at 360-361 (STEVENS, J., dissenting), is
almost certainly due to the fact that the Members of Congress
voting on the bill read the text of the statute, as do we, to
prohibit the use of sampling in determining the population for
apportionment purposes. Moreover, it is hard to imagine that,
having explicitly prohibited the use of sampling for apportionment
purposes in 1957, Congress would have decided to reverse course on
such an important issue by enacting only a subtle change in
phraseology.
IV
For the reasons stated, we conclude that the Census Act
prohibits the proposed uses of statistical sampling in calculating
the population for purposes of apportionment. Because we so
conclude, we find it unnecessary to reach the constitutional
question presented. See
Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944)
("If there is one doctrine more deeply rooted than any other in the
process of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality ... unless such adjudication
is unavoidable");
Ashwander v.
TVA, 297 U. S. 288,
344
344 DEPARTMENT OF COMMERCE
v. UNITED STATES HOUSE OF
REPRESENTATIVES
SCALIA, J., concurring in part
347 (1936) (Brandeis, J., concurring) ("[I]f a case can be
decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general
law, the Court will decide only the latter"). Accordingly, we
affirm the judgment of the District Court for the Eastern District
of Virginia in
Clinton v.
Glavin, No. 98564. As this
decision also resolves the substantive issues presented by
Department of Commerce v.
United States House of
Representatives, No. 98-404, that case no longer presents a
substantial federal question. The appeal in that case is therefore
dismissed. Cf.
Sanks v.
Georgia, 401 U. S. 144, 145
(1971).
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom
THE CHIEF JUSTICE and JUSTICE KENNEDY join as to Part II,
concurring in part.
I
I join the opinion of the Court, excluding, of course, the
plurality's resort in Part III-B to what was said by individual
legislators and committees of legislators-or more precisely (and
worse yet), what was
not said by individual legislators and
committees of legislators. I write separately to respond at
somewhat greater length to JUSTICE STEVENS' analysis of 13 U. S. C.
§ 141(a), to add several additional points of textual analysis, and
to invoke the doctrine of constitutional doubt, which is a major
factor in my decision.
II
Section 141(a) requires the Secretary of Commerce to conduct a
"decennial census of population ... in such form and content as he
may determine, including the use of sampling procedures and special
surveys." JUSTICE STEVENS reasons that a reading of § 195 that
would prohibit sampling for apportionment purposes contradicts this
provision. It
345
seems to me there is no conflict at all. The phrase "decennial
census of population" in § 141(a) refers to far more than the
"tabulation of total population by States ... as required for the
apportionment of Representatives in Congress among the several
States .... " § 141(b). See U. S. Const., Art. I, § 2. It also
includes "a census of population, housing, and matters relating to
population and housing." § 141(g). The authorization of sampling
techniques in the "decennial census of population" is not
necessarily an authorization of such techniques in
all
aspects of the decennial census-any more than it is necessarily
an authorization of
all sampling techniques (for example,
those that would violate the Fourth Amendment). One looks to the
remainder of the law to determine what techniques, and what aspects
of the decennial census, the authorization covers.
If, for example, it were utterly clear and universally agreed
that the Constitution prohibits sampling in those aspects of the
census related to apportionment, it would be strange to contend
that, by authorizing the Secretary of Commerce to use sampling in
his census work, § 141(a) "contradicts" the Constitution. The use
of sampling it authorizes is
lawful use of sampling, and if
this does not include the apportionment aspect then the
authorization obviously does not extend that far. I think the
situation the same with regard to the legal impediment imposed by §
195. JusTICE STEVENS would be correct that the Court is not
interpreting § 195 "consistently with § 141(a),"
post, at
358, if the latter provision specifically authorized sampling in
"all aspects of the decennial census." But since it does not, the
Court's interpretation is entirely harmonious.
JUSTICE STEVENS' interpretation of this statute creates a
palpable absurdity within § 195 itself. The "shall" of that
provision is subject to not one exception, but two. The first,
which is at issue here, is introduced by "Except." The second is
contained within the phrase "if he considers it feasible." The
Secretary is under no
command to authorize
346
346 DEPARTMENT OF COMMERCE
v. UNITED STATES HOUSE OF
REPRESENTATIVES
SCALIA, J., concurring in part
sampling if he does not consider it feasible. Is it even
thinkable that he
may (though he
need not) authorize
sampling if he does
not consider it feasible? The clear
implication of "shall," as applied to this exception, is that where
the exception applies he
shall not. It would be strange to
draw the different implication of "may" when the word is applied to
the other exception.
And finally, JUSTICE STEVENS' interpretation creates a statute
in which Congress swallows a camel and strains out a gnat. Section
181 of the statute requires the Secretary to compile annual and
biennial "interim current data" -a useful but hardly indispensable
function. The Secretary is authorized to use sampling in the
performance of this function
only if he determines that it
will produce "current, comprehensive, and reliable data." § 181(a).
The statute JUSTICE STEVENS creates is one in which Congress
carefully circumscribes the Secretary's discretion to use sampling
in compiling "interim current data," but leaves it entirely up to
the Secretary whether he will use sampling for the purpose most
important (and closest to the Congress's heart): the apportionment
of Representatives.
Even if one is not entirely persuaded by the foregoing
arguments, and the more substantial analysis contained in the
opinion of the Court, I think it must be acknowledged that the
statutory intent to permit use of sampling for apportionment
purposes is
at least not clear. In these circumstances, it
is our practice to construe the text in such fashion as to avoid
serious constitutional doubt. See,
e. g., Edward J.
DeBartolo Corp. v.
Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 575
(1988). It is in my view unquestionably doubtful whether the
constitutional requirement of an "actual Enumeration," Art. I, § 2,
cl. 3, is satisfied by statistical sampling.
Dictionaries roughly contemporaneous with the ratification of
the Constitution demonstrate that an "enumeration" requires an
actual counting, and not just an estimation of
347
number. Noah Webster's 1828 American Dictionary of the English
Language defines "enumerate" as "[t]o count or tell, number by
number; to reckon or mention a number of things, each separately";
and defines "enumeration" as "[t]he act of counting or telling a
number, by naming each particular," and "[a]n account of a number
of things, in which mention is made of every particular article."
Samuel Johnson's 1773 Dictionary of the English Language 658 (4th
ed.) defines "enumerate" as "[t]o reckon up singly; to count over
distinctly; to number"; and "enumeration" as "[t]he act of
numbering or counting over; number told out." Thomas Sheridan's
1796 Complete Dictionary of the English Language (6th ed.) defines
"enumerate" as "[t]o reckon up singly; to count over distinctly";
and "enumeration" as "[t]he act of numbering or counting over." The
notion of counting "singly," "separately," "number by number,"
"distinctly," which runs through these definitions is incompatible
(or at least
arguably incompatible, which is all that needs
to be established) with gross statistical estimates.
One must also be impressed by the facts recited in the opinion
of the Court,
ante, at 335: that the Census Acts of 1790 and
1800 required a listing of persons by family name, and the Census
Acts of 1810 through 1950 required census enumerators to visit each
home in person. This demonstrates a longstanding tradition of
Congress's forbidding the use of estimation techniques in
conducting the apportionment census. Could it be that all these
Congresses were unaware that (in the words of JUSTICE STEVENS'
dissent) estimation techniques "will make the census more accurate
than an admittedly futile attempt to count every individual by
personal inspection, interview, or written interrogatory"?
Post, at 364. There were difficult-to-reach inhabitants in
the early 1800's, just as there are today-indeed, perhaps a greater
proportion of them, since the society was overwhelmingly composed
of farmers, and largely of frontiersmen. And though there were no
professional statisticians,
348
SCALIA, J., concurring in part
it must have been known that various methods of estimating
unreachable people would be more accurate than assuming that
all unreachable people did not exist. (Thomas Jefferson's
1782 estimate of the population of Virginia based upon limited data
and specific demographic assumptions is thought to have been
accurate by a margin of one-to-two percent. H. Alterman, Counting
People: The Census in History 168170 (1969).) Yet such methods of
estimation have not been used for over two centuries. The stronger
the case the dissents make for the irrationality of that course,
the more likely it seems that the early Congresses, and every
Congress before the present one, thought that estimations were not
permissible. See,
e. g., Printz v.
United States,
521 U. S. 898,
905 (1997) (historical evidence that "earlier Congresses avoided
use of [the] highly attractive power [to compel state executive
officers to administer federal programs]" gave us "reason to
believe that the power was thought not to exist").
JUSTICE STEVENS reasons from the
purpose of the Census
Clause: "The census is intended to serve the constitutional goal of
equal representation. That goal is best served by the use of a
'Manner' that is most likely to be complete and accurate."
Post, at 364 (internal quotation marks and citation
omitted). That is true enough, and would prove the point if either
(1)
every estimate is more accurate than a head count, or
(2) Congress could be relied upon to permit
only those
estimates that are more accurate than headcounts. It is
metaphysically certain that the first proposition is false, and
morally certain that the second is. To give Congress the power,
under the guise of regulating the "Manner" by which the census is
taken, to select among various estimation techniques having
credible (or even incredible) "expert" support is to give the party
controlling Congress the power to distort representation in its own
favor. In other words, genuine enumeration may not be the most
accurate way of determining population, but it may be the most
accurate way of determining population with minimal possi-
349
bility of partisan manipulation. The prospect of this Court's
reviewing estimation techniques in the future, to determine which
of them
so obviously creates a distortion that it cannot be
allowed, is not a happy one. (I foresee the new specialty of
"Census Law.") Indeed, it is doubtful whetherseparation-of-powers
considerations aside-the Court would even have available the raw
material to conduct such review effectively. As pointed out by the
appellants in the present cases, we will
never be able to
assess the relative accuracy of the sampling system used for the
2000 census by comparing it to the results of a headcount,
for
there will have been no headcount.
For reasons of text and tradition, fully compatible with a
constitutional purpose that is entirely sensible, a strong case can
be made that an apportionment census conducted with the use of
"sampling techniques" is not the "actual Enumeration" that the
Constitution requires. (Appellant Commerce Department itself once
argued that case in the courts. See,
e. g., Young v.
Klutznick, 497 F. Supp. 1318, 1332 (ED Mich. 1980), rev'd
652 F.2d
617 (CA6 1981).) And since that is so, the statute before us,
which certainly
need not be interpreted to permit such a
census, ought not be interpreted to do so.
JUSTICE BREYER, concurring in part and dissenting in part.
I join Part II of the majority opinion concerning standing, and
I join Parts II and III of JUSTICE STEVENS' dissent. I also agree
with JUSTICE STEVENS' conclusion in Part I that the plan for the
2000 census presented by the Secretary of Commerce is not barred by
the Census Act. In my view, however, the reason that 13 U. S. C. §
195 does not bar the statistical sampling at issue here is that §
195 focuses upon sampling used as a
substitute for
traditional enumeration methods, while the proposal at the heart of
the Secretary's plan for the 2000 census (namely, Integrated
Coverage Meas-
350
Opinion of BREYER, J.
urement, or ICM) is not so intended. Rather, ICM uses
statistical sampling to
supplement traditional enumeration
methods in order to achieve the very accuracy that the census seeks
and the Census Act itself demands. See,
e. g., Decennial
Census Improvement Act of 1991, § 2(a)(1), 105 Stat. 635, note
following 13 U. S. C. § 141 (directing the Secretary to contract
with the National Academy of Sciences to study "means by which the
Government could achieve the most accurate population count
possible").
The language of § 195 permits a distinction between sampling
used as a substitute and sampling used as a supplement. The literal
wording of its "except" clause focuses upon the use of sampling
"for the
determination of population for purposes of
apportionment of Representatives in Congress among the several
States." 13 U. S. C. § 195 (emphasis added). One can read those
words as the majority does-applying to apportionment-connected
sampling irrespective of use or kind. But one can also read them as
applicable only to the use of sampling
in place of the
traditional "determination of population for purposes of
apportionment." The "except" clause does not necessarily apply to
every conceivable use of statistical sampling any more than, say, a
statutory rule forbidding "vehicles" in the park applies to
everything that could possibly be characterized as a "vehicle." See
generally H. Hart, The Concept of Law 124-136 (2d ed. 1994)
(discussing the "open texture of law"). Context normally informs
the meaning of a general statutory phrase and often limits its
scope.
The history and context of § 195 favor an interpretation that so
limits the scope of that section. Cf. Brief for Appellants in No.
98-404, p. 36, n. 19; Brief for Appellees Gephardt et al. in No.
98-404, pp. 9-10, 22-23, 33-38;
Young v.
Klutznick,
497 F. Supp. 1318, 1335 (ED Mich. 1980) ("All that § 195 does is
prohibit the use of figures derived solely by statistical
techniques. It does not prohibit the use of statistics in addition
to the more traditional measuring tools to arrive at a
351
more accurate population count"), rev'd on other grounds,
652 F.2d
617 (CA6 1981);
Carey v.
Klutznick, 508 F.
Supp. 404, 415 (SDNY 1980) (Census Act permits sampling in the
context of apportionment as long as it is used only in addition to
more traditional methods of enumeration). In the 1940's the Census
Bureau began using statistical sampling in the collection of a
variety of demographic information. U. S. Dept. of Commerce, Bureau
of the Census, 200 Years of Census Taking: Population and Housing
Questions, 1790-1990, p. 5 (Nov. 1989). Thus, during the 1940's and
1950's, each American family was asked to complete a short form
containing a few information-gathering questions. In addition, the
Bureau also used a long form that contained additional questions
about individuals and families, but it asked only 1
family in
20 to complete this form.
Ibid.; R. Jenkins, Procedural
History of the 1940 Census of Housing and Population 13-15 (1985).
The Census Bureau used those long-form answers, from 5% of the
population, as a basis for extrapolating statistics and trends,
about, say, unemployment or housing conditions, for the Nation as a
whole.
In 1957 Congress focused upon this kind of sampling-a long form
completed by only 1 American household in 20as a model of what §
195 would authorize the Secretary to do-"[e]xcept for the
determination of population for purposes of apportionment." 13 U.
S. C. § 195. When explaining the need for the proposed § 195, the
Secretary of Commerce spoke of a "sample enumeration or a sample
census [that] might be
substituted for a full census."
Amendment of Title 13, United States Code, Relating to Census,
Hearing on H. R. 7911 before the House Committee on Post Office and
Civil Service, 85th Cong., 1st Sess., 7 (1957) (Statement of
Purpose and Need) (emphasis added). He added that "[e]xperience has
shown that some of the information which is desired in connection
with a census could be secured efficiently through a sample survey
... [and] that in some instances a portion of the universe to be
included might be
352
Opinion of BREYER, J.
efficiently covered on a sample rather than a complete
enumeration basis .... "
Ibid. The House Report spoke in the
same terms: "The purpose of section 195 in authorizing the use of
sampling procedures is
to permit the utilization of something
less than a complete enumeration, as implied by the word
'census,' when efficient and accurate coverage may be effected
through a sample survey." H. R. Rep. No. 1043, 85th Cong., 1st
Sess., 10 (1957) (emphasis added); accord, S. Rep. No. 94-1256, p.
1 (1976) (1976 amendments added new language "to direct the
Secretary ... to use sampling and special surveys
in lieu of
total enumeration in the collection of statistical data
whenever feasible" (emphasis added)). The discussion thus linked
the authorization-and hence the exception-to sampling as a
substitute for a head count.
Census Bureau practice also helps to support this limited
interpretation of the section's scope. Both before and after § 195
was enacted in 1957, the census has used sampling techniques in one
capacity or another in connection with its determination of
population, most often as a quality check on the head count itself.
See,
e. g., Declaration of Margo J. Anderson ~12, App. in
No. 98-404, p. 348 (first postenumeration survey was performed
following the 1950 census to check for inaccuracies).
The Census Bureau has also used a form of statistical estimation
to adjust or correct its actual headcount. Since at least 1940, the
Census Bureau has used an estimation process called "imputation" to
fill in gaps in its head count. U. S. Dept. of Commerce, Bureau of
the Census, Report to Congress: The Plan for Census 2000, p. 23
(Aug. 1997) (hereinafter Census 2000 Report). When an enumerator
believes a residence is occupied but is unable to obtain any
information about how many people live there, the Census Bureau
"imputes" that information based upon the demographics of nearby
households. Imputation was responsible, for example, for adding
761,000 people to the Nation's total population in 1980 and 53,590
people in 1990.
Ibid. In 1970, when the
353
Census Bureau discovered at the last minute that it had
mistakenly assumed that a significant number of housing units were
vacant, it adjusted the headcount to add 1,068,882 people, or 0.5%
of the total population.
Ibid.
Integrated Coverage Measurement would not substitute for, but
rather would supplement, a traditional head count, and it would do
so to achieve the basic purpose of the statutes that authorize the
headcount-namely, accuracy. The Census Bureau has learned over time
that certain portions of the population-for example, children,
racial and ethnic minorities, and those who rent rather than own
their homes-are systematically undercounted in a traditional
headcount.
Id., at 2-4; see also
Wisconsin v.
City
of New York,
517 U.
S. 1, 6-8 (1996). The ICM program is the Census Bureau's effort
to correct for this problem. As I understand it, this proposal
would use statistical sampling to check headcount results, State by
State, by intensively investigating sample blocks in each State,
comparing the results from that investigation with the results of
the headcount, and using that information to estimate to what
extent different groups of persons were undercounted during the
head count. The undercount rates-which will be calculated
separately for every State in the Union-will then be used to adjust
the head count totals in an effort to correct for those
inaccuracies.
I recognize that the use of statistical sampling to correct or
reduce headcount inaccuracies is a complicated matter. An overall
national improvement in accuracy does not necessarily tell the
whole story. Apportionment demands compa
rable accuracy State
by State. A count that reflected evenly distributed error (say, if
the population in every State were undercounted by 20%) would
produce the same congressional apportionment as a perfectly
accurate count; a count that is less comparatively accurate could
make matters worse. Although earlier attempts at ICM-like
adjustments apparently failed to take some of these difficulties
into account, the Secretary believes the present proposal does so.
Census 2000
354
354 DEPARTMENT OF COMMERCE
v. UNITED STATES HOUSE OF
REPRESENTATIVES
Opinion of BREYER, J.
Report 30 (strata crossed state lines in 1990, but in 2000,
strata will be defined on a state-by-state basis); cf. id., at 29
(explaining that the ICM methodology, which was used in the past
two censuses to evaluate census quality, has "undergone substantial
review and improvement" and "is generally accepted as the most
reliable method to improve census results"). And, as I understand
it, ICM will help to uncover and to correct undercounting not only
among minority but also among majority populations. Any special
emphasis the Census Bureau might place on including racial and
ethnic minority neighborhoods among its samples would be justified
as an effort to ensure proper counts among groups that history
shows have been undercounted. Although some
amici express
concerns about the possibility of error in the execution of the
statistical program, the Census Bureau itself, aware of potential
difficulties, has created an expert panel of statisticians and
social scientists, which will guide the Census Bureau's execution
of its plan for the 2000 census, particularly with respect to its
use of sampling. See id., at 49-51. And, of course, unadjusted
headcounts are also subject to error or bias-the very fact that
creates the need for a statistical supplement. See,
e. g.,
id., at 3-4 (describing the problem of differential undercount
under the traditional headcount method); id., at 37 (without ICM,
the 2000 census will be less accurate than the 1990 census).
Finally, as JUSTICE STEVENS points out, Congress has changed the
statute considerably since it enacted § 195 in 1957. Each change
tends to
favor the use of statistical sampling. In 1964, for
example, Congress repealed former § 25(c) of the Census Act, see
Act of Aug. 31, 1964, 78 Stat. 737, which had required that each
enumerator obtain "every item of information" through a personal
visit to each household, 68 Stat. 1015, thereby permitting census
taking by mail. In 1976, Congress amended § 141(a) ("Population and
other census information") to authorize the Secretary to "take a
decennial census of population ... in such form and
355
content as he may determine including the use of sampling
procedures and special surveys." At the same time, Congress
strengthened § 195's position on sampling, providing that the
Secretary "shall" use sampling for purposes other than "for the
determination of population for purposes of apportionment." 13 U.
S. C. § 195. Given the legal need to interpret subsections of a
single statute as creating a single coherent whole, these changes
strengthen the case for an interpretation that restricts the scope
of § 195 to the kind and use of sampling that called it into being,
placing beyond its outer limits a conceptually different (i.
e., supplementary) use needed to achieve that statute's
basic goal-greater census accuracy.
The Secretary's further proposal, the Nonresponse Followup
program, uses statistical sampling not simply to verify a
headcount, but to determine the last 10% of population in each
census tract. I concede that this kind of statistical "followup" is
conceptually similar to the kind of sampling that was before
Congress in 1957, in the sense that it involves determining a
portion of the total population based upon a sample. But one can
consider it supplementary for a different reason-because it simply
does not have a great enough impact upon the headcount to be
considered a "substitute" falling within § 195's "except"
clause.
I note that the Census Bureau has never relied exclusively upon
headcounts to determine population. As discussed above, for
example, the Census Bureau has supplemented its head counts with
imputation to some degree for at least the last 50 years. Section
195 of the Census Act, at least in my view, could not have been
intended as a prohibition so absolute as to stop the Census Bureau
from imputing the existence of a living family behind the closed
doors of an apparently occupied house, should that family refuse to
answer the bell. Similarly, I am not convinced that the Act
prevents the use of sampling to ascertain the existence of a
certain
356
Opinion of BREYER, J.
number of the families that fail to mail back their census
forms.
The question, then, is what "number" of housing units will be
assigned a population through sampling. Whether the N onresponse
Followup program is sufficiently like imputation in terms of its
degree of impact so as to be a
supplement to the
headcount-or rather whether it is more like the way in which the
Bureau uses sampling in connection with the "long form," as a
substitute for a headcount-is here a matter of degree, not
kind. Is the use of that method in the Nonresponse Followup,
limited to the last 10%, sufficiently small, as a portion of the
total population, and sufficiently justified, through the need to
avoid disproportionately prohibitive costs, that it remains,
effectively, a "supplement" to the traditional headcount?
For each census tract (made up of roughly 1,700 housing units),
the Nonresponse Followup program will assign population figures to
no more than 170 housing units. Census Bureau enumerators will
personally visit enough of the housing units in each census tract
to ensure that 90% of all housing units have been counted either by
mail or in person. The Census Bureau will then use the information
gathered from the housing units that the census enumerators
actually visited in that tract to arrive at a number for the
remaining 10%. See generally Census 2000 Report 26-29. The primary
advantage of this program is financial; it is considerably cheaper
than a personal search by enumerators to take account of the last
few of the households that do not respond by mail. See,
e.
g., National Research Council, Panel to Evaluate Alternative Census
Methods, Counting People in the Information Age 100 (D. Steffey
& N. Bradburn eds. 1994). But the Secretary also believes that
this program addresses other concerns-concerns related to the
immense difficulties involved in personally visiting every home
that does not respond by mail-and that, overall, the Nonresponse
Followup plan "will increase the accuracy of the cen-
357
sus as a whole." Reply Brief for Appellants in No. 98-564, p. 4;
see also Census 2000 Report 27; id., at 7 (quoting the National
Academy of Sciences Panel on Requirements as concluding that "[i]t
is fruitless to continue trying to count every last person with
traditional Census methods of physical enumeration").
In answering the question whether this use of sampling remains a
"supplement" because of its limited impact on the total headcount,
I would give considerable weight to the views of the Secretary, to
whom the Act entrusts broad discretionary authority. See 13 U. S.
C. § 141(a). The Secretary's decision to draw the line at the last
10%, rather than at the last 5% or 1%, of each census tract's
population may well approach the limit of his discretionary
authority. But I cannot say that it exceeds that limit.
Consequently, I would not set aside the Census Bureau's Nonresponse
Followup proposal on this basis.
For these reasons, I respectfully dissent.
JUSTICE STEVENS, with whom JUSTICE SOUTER and JusTICE GINSBURG
join as to Parts I and II, and with whom JUSTICE BREYER joins as to
Parts II and III, dissenting.
The Census Act, 13 U. S. C. § 1
et seq., unambiguously
authorizes the Secretary of Commerce to use sampling procedures
when taking the decennial census. That this authorization is
constitutional is equally clear. Moreover, because I am satisfied
that at least one of the plaintiffs in each of these cases has
standing, I would reverse both District Court judgments.
I
The Census Act, as amended in 1976, contains two provisions that
relate to sampling. The first is an unlimited authorization; the
second is a limited mandate.
The unlimited authorization is contained in § 141(a). As its
text plainly states, that section gives the Secretary of Commerce
unqualified authority to use sampling procedures
358
STEVENS, J., dissenting
when taking the decennial census, the census used to apportion
the House of Representatives. It reads as follows:
"(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." 13 U. S. C. § 141(a).
The limited mandate is contained in § 195. That section commands
the Secretary to use sampling, subject to two limitations: he need
not do so when determining the population for apportionment
purposes, and he need not do so unless he considers it feasible.
The command reads as follows:
"Except for the determination of population for purposes of
apportionment of Representatives in Congress among the several
States, the Secretary shall, if he considers it feasible, authorize
the use of the statistical method known as 'sampling' in carrying
out the provisions of this title." 13 U. S. C. § 195.
Although § 195 does not command the Secretary to use sampling in
the determination of population for apportionment purposes, neither
does it prohibit such sampling. Not a word in § 195 qualifies the
unlimited grant of authority in § 141(a). Even if its text were
ambiguous, § 195 should be construed consistently with § 141(a).
Moreover, since § 141(a) refers specifically to the decennial
census, whereas § 195 refers to the use of sampling in both the
mid-decade and the decennial censuses, the former more specific
provision would prevail over the latter if there were any conflict
between the two. See
Edmond v.
United States,
520 U. S. 651,
657 (1997). In my judgment, however, the text of both provisions is
perfectly clear: They authorize sampling in both the decennial and
the mid-decade censuses, but they only com-
359
mand its use when the determination is not for apportionment
purposes.
A comparison of the text of these provisions with their
predecessors in the 1957 Census Act further demonstrates that in
1976 Congress specifically intended to authorize the use of
sampling for the purpose of apportioning the House of
Representatives. Prior to 1976, the Census Act contained neither an
unlimited authorization to use sampling nor a limited mandate to do
so. Instead, the 1957 Act merely provided that the Secretary "may"
use sampling for any purpose except apportionment. 13 U. S. C. §
195 (1958 ed.). In other words, it contained a limited
authorization that was coextensive with the present limited
mandate. The 1976 amendments made two changes, each of which is
significant. First, Congress added § 141(a), which unambiguously
told the Secretary to take the decennial census "in such form and
content as he may determine, including the use of sampling
procedures and special surveys." Second, Congress changed § 195 by
replacing the word "may" with the word "shall." Both amendments
unambiguously endorsed the use of sampling. The amendment to § 141
gave the Secretary authority that he did not previously possess,
and the amendment to § 195 changed a limited authorization into a
limited command.
The primary purpose of the 1976 enactment was to provide for a
mid-decade census to be used for various purposes other than
apportionment. Section 141(a), however, is concerned only with the
decennial census. The comment in the Senate Report on the new
language in § 141(a) states that this provision was intended "to
encourage the use of sampling and surveys in the taking of the
decennial census." S. Rep. No. 94-1256, p. 4 (1976). Given that
there is only one decennial census, and that it is the only census
that is used for apportionment purposes, the import of this comment
in the Senate Report could not be more clear. See ibid. ("It is for
the purpose of apportioning Representatives that the
360
STEVENS, J., dissenting
United States Constitution establishes a decennial census of
population").
Nevertheless, in an unusual
tour de force, the Court
concludes that the amendments made no change in the scope of the
Secretary's authority: Both before and after 1976, he could use
sampling for any census-related purpose, other than apportionment.
The plurality finds an omission in the legislative history of the
1976 enactment more probative of congressional intent than either
the plain text of the statute itself or the pertinent comment in
the Senate Report. For the plurality, it is incredible that such an
important change in the law would not be discussed in the floor
debates. See
ante, at 342-343.1 It appears, however, that
even though other provisions of the legislation were
controversial,2 no one objected to this change. That the use of
sampling has since become a partisan issue sheds no light on the
views of the legislators who enacted the authorization to use
sampling in
1 To its credit, and unlike the District Court, the Court does
not rely on our reference to the watchdog that did not bark in
Chisom v.
Roemer, 501 U. S. 380, 396, and n. 23
(1991). In that case, unlike these cases, there was neither a
change in the relevant text of the statute nor a reference to the
purported change in the Committee Reports. The change in these
cases is clearly identified in both the statutory text and the
Senate Report.
2 The only contentious issue in the floor debates involved the
penalty provisions for noncompliance. See 122 Congo Rec. 9796, 9800
(1976); id., at 35171, 33305. Indeed, the Conference Report
comparing the House and Senate bills and announcing the harmonized
final version confirms that substitutions were only necessary with
regard to penalties for failure to answer questions and to ensure
that no one would be compelled to disclose information regarding
religious affiliation. See Joint Explanatory Statement of the
Conference Committee, H. R. Conf. Rep. No. 94-1719, pp. 14-15
(1976); see also 122 Congo Rec. 33305 (1976) ("The differences
between the Senate and the House of Representatives on this measure
... centered on the question of penalties for refusal or neglect to
cooperate with the censuses .... The managers on the part of the
Senate also receded in the case of a House amendment providing that
a person may not be compelled to disclose information regarding his
religious beliefs or membership in a religious body").
361
1976.3 Indeed, the bill was reported out of the House Committee
by a unanimous vote, both the House and Senate versions easily
passed, and the Conference was unanimous in recommending the
revised legislation.4 Surely we must presume that the legislators
who voted for the bill were familiar with its text as well as the
several references to sampling in the Committee Reports.5 Given the
general agreement on the proposition that "sampling and surveys"
should be encouraged because they can both save money and increase
the reliability of the population count, it is not at all
surprising that no one objected to what was perceived as an
obviously desirable change in the law.6
3 Many did object to the use of the mid-decade census statistics
for congressional apportionment and districting. See id., at 9792
("The bill presently contains a specific prohibition against the
use of mid-decade statistics for purposes of apportionment or for
the use in challenging any existing districting plan"). In a
supplement to H. R. Rep. No. 94-944, two Republican Congressmen
insisted that limits on the frequency of reapportionment were
necessary to ensure stability. Supplemental Views on H. R. 11337,
H. R. Rep. No. 94-944, pp. 17-18 (1976); see also 122 Congo Rec.
9794-9796, 9799-9802 (1976).
4 See id., at 9792, 33305, 32253.
5 Although the comment on page 4 of the Senate Report quoted
supra, at 359, is the only specific reference to the use of
sampling in the decennial census, several other statements reflect
the general understanding that sampling should be used whenever
possible. Consider, for example, this comment following the
succinct and accurate explanation of the amendment to § 195 in the
Conference Report: "The section, as amended, strengthens the
congressional intent that, whenever possible, sampling shall be
used." H. R. Conf. Rep. No. 94-1719, at 13; see also H. R. Rep. No.
94-944, at 6 ("Section 7 revises section 195 of title 13 which
presently authorizes, but does not require, the use of sampling.
This clarifies congressional intent that, wherever possible,
sampling shall be used").
6 See id., at 1; 122 Congo Rec. 35171 (1976) (statement of Rep.
Schroeder) ("Support for this bill has come from virtually every
sector of American society"); see also Statement by President
Gerald R. Ford on Signing H. R. 11337 into Law, Oct. 18, 1976, 12
Weekly Compo of Pres. Doc. 1535 (1976) ("[I]t will provide us with
better data, of greater consistency, at a reduced cost").
362
STEVENS, J., dissenting
What is surprising is that the Court's interpretation of the
1976 amendment to § 141 drains it of any meaning.7 If the Court is
correct, prior to 1976 the Secretary could have used sampling for
any census-related purpose except apportionment, and after 1976 he
retained precisely the same authority. Why, one must wonder, did
Congress make this textual change in 197678 The substantial
revision of § 141 cannot fairly be dismissed as "only a subtle
change in phraseology."
Ante, at 343. Indeed, it "tests the
limits of reason to suggest" that this change had no purpose at
all.
Ibid.
II
Appellees have argued that the reference in Article I of the
Constitution to the apportionment of Representatives and to direct
taxes on the basis of an "actual Enumeration" precludes the use of
sampling procedures to supplement data obtained through more
traditional census methods. U. S. Const., Art. I, § 2, cl. 3. There
is no merit to their argument.
In 1787, when the Constitution was being drafted, the Framers
negotiated the number of Representatives allocated to each State
because it was not feasible to conduct a census.9
7 In its response to this dissent, the plurality acknowledges
that the "subtle change in phraseology" in § 195 transformed a
provision that simply permitted sampling into one that required
sampling for nonapportionment purposes.
Ante, at 343. But it
fails to acknowledge that this change removed the only textual
basis for its conclusion that § 195 prohibits the use of
statistical sampling for apportionment purposes. An exception from
the grant of discretionary authority in the pre-1976 version of §
195 may fairly be read to prohibit sampling, but that reasoning
does not apply to an exception from a mandatory provision.
S See
Stone v.
INS, 514 U. S. 386, 397 (1995)
("When Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect").
9 Article I, § 2, cl. 3, provides that "until such enumeration
shall be made, the State of New Hampshire shall be entitled to
chuse three, Massachusetts eight, Rhode-Island and Providence
Plantations one, Connecticut five, New-York six, New Jersey four,
Pennsylvania eight, Delaware one,
363
See
Department of Commerce v.
Montana, 503 U. S. 442, 448, and
n. 15 (1992). They provided, however, that an "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." U. S.
Const., Art. I, § 2, cl. 3. The paramount constitutional principle
codified in this Clause was the rule of periodic reapportionment by
means of a decennial census. The words "actual Enumeration" require
post-1787 apportionments to be based on actual population counts,
rather than mere speculation or bare estimate, but they do not
purport to limit the authority of Congress to direct the "Manner"
in which such counts should be made.
The July 1787 debate over future reapportionment of seats in the
House of Representatives did not include any dispute about proposed
methods of determining the population. Rather, the key questions
were whether the rule of reapportionment would be constitutionally
fixed and whether subsequent allocations of seats would be based on
population or property. See 1 Records of the Federal Convention of
1787, pp. 57-71, 542, 559-562, 566-570, 578-579, 579-580, 586, 594
(M. Farrand ed. 1911); see also Declaration of Jack N. Rakove, App.
387 ("What was at issue ... were fundamental principles of
representation itself ... not the secondary matter of exactly how
census data was to be compiled"); J. Rakove, Original Meanings:
Politics and Ideas in the Making of the Constitution 70-74 (1996).
The Committee of Style, charged with delivering a polished final
version of the Constitution, added the term "actual Enumeration" to
the draft reported to the Convention on September 12, 1787-five
days before adjournment. 2 Records,
supra, at 590-591. This
stylistic change did not limit Congress' authority to determine the
"Manner" of conducting the census.
Maryland six, Virginia ten, North Carolina five, South Carolina
five, and Georgia three."
364
STEVENS, J., dissenting
The census is intended to serve "the constitutional goal of
equal representation."
Franklin v.
Massachusetts, 505
U. S. 788, 804 (1992). That goal is best served by the use of a
"Manner" that is most likely to be complete and accurate. As we
repeatedly emphasized in our recent decision in
Wisconsin v.
City of New York, 517 U. S. 1, 3 (1996), our
construction of that authorization must respect "the wide
discretion bestowed by the Constitution upon Congress."
Methodological improvements have been employed to ease the
administrative burden of the census and increase the accuracy of
the data collected. The "mailout-mailback" procedure now considered
a traditional method of enumeration was itself an innovation of the
1970 census.10 Requiring a face-to-face headcount would yield
absurd results: For example, enumerators unable to gain entry to a
large and clearly occupied apartment complex would be required to
note zero occupants. For this reason, the 1970 census introduced
the Postal Vacancy Check-a form of sampling not challenged
here-which uses sample households to impute population figures that
have been designated vacant but appear to be occupied.ll Since it
is perfectly clear that the use of sampling will make the census
more accurate than an admittedly futile attempt to count every
individual by personal inspection, interview, or written
interrogatory, the proposed method is a legitimate means of making
the "actual Enumeration" that the Constitution commands.
III
I agree with the Court's discussion of the standing of the
plaintiffs in No. 98-564. I am also convinced that the House of
Representatives has standing to challenge the validity of the
process that will determine the size of each State's con-
10 See M. Anderson, The American Census: A Social History
210-211 (1988).
11 See U. S. Dept. of Commerce, Bureau of Census, Effect of
Special Procedures to Improve Coverage in the 1970 Census (Dec.
1974).
365
gressional delegation. See
Powell v.
McCormack,
395 U. S. 486,
548 (1969) ("Unquestionably, Congress has an interest in preserving
its institutional integrity"). As the District Court in No. 98-404
correctly held, the House has a concrete and particularized
"institutional interest in preventing its unlawful composition"
that satisfies the injury in fact requirement of Article III. 11 F.
Supp. 2d 76, 86 (DC 1998). Accordingly, I respectfully dissent in
both cases. I would reverse both judgments on the merits.
JUSTICE GINSBURG, with whom JUSTICE SOUTER joins,
dissenting.
I agree with the Court that Indiana resident Hofmeister, an
appellee in No. 98-564, has standing to challenge the Census 2000
plan on the ground that Indiana would lose a Representative in
Congress under the Census Bureau's proposed sampling plan. I also
agree with the Court's conclusion that the appeal in No. 98-404
should be dismissed. I would not decide whether other appellees in
No. 98-564 have established standing on the basis of the expected
effects of the sampling plan on intrastate redistricting.
Respecting the merits, I join Parts I and II of JUSTICE STEVENS'
dissent.
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