OCTOBER TERM, 2001
Syllabus
UTAH ET AL.
v. EVANS, SECRETARY OF COMMERCE, ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH
No. 01-714. Argued March 27, 2002-Decided June 20, 2002
The Census Bureau derives most census information from forms it
mails to a nationwide list of addresses. If no one replies to a
particular form or the information supplied is confusing,
contradictory, or incomplete, the Bureau follows up with visits by
its field personnel. Occasionally, despite the visits, the Bureau
may still have conflicting indications about,
e. g.,
whether a listed address is a housing unit, office building, or
vacant lot, whether a residence is vacant or occupied, or the
number of persons in a unit. The Bureau may then use a methodology
called "imputation," by which it infers that the address or unit
about which it is uncertain has the same population characteristics
as those of its geographically closest neighbor of the same type
(i.
e., apartment or single-family dwelling) that did not
return a form. In the year 2000 census, the Bureau used "hot-deck
imputation" to increase the total population count by about 0.4%.
But because this small percentage was spread unevenly across the
country, it made a difference in the apportionment of congressional
Representatives. In particular, imputation increased North
Carolina's population by 0.4% while increasing Utah's by only 0.2%,
so that North Carolina will receive one more Representative and
Utah one less than if the Bureau had simply filled relevant
informational gaps by counting the related number of individuals as
zero. Utah brought this suit against appellees, the officials
charged with conducting the census, claiming that the Bureau's use
of "hot-deck imputation" violates 13 U. S. C. § 195, which
prohibits use of "the statistical method known as 'sampling,'" and
is inconsistent with the Constitution's statement that an "actual
Enumeration shall be made," Art. I, § 2, cl. 3. Utah sought an
injunction compelling appellees to change the official census
results. North Carolina intervened. The District Court found for
the Bureau.
Held:
1. The Court rejects North Carolina's argument that Utah lacks
standing because this action is not a "Case" or "Controversy," Art.
III, § 2, in that the federal courts do not have the power to
"redress" the "injury" that appellees allegedly "caused" Utah,
e. g., Lujan v.
Defenders of Wildlife,
504 U. S. 555,
561. Because there is no significant dif-
453
ference between Utah and the plaintiff in
Franklin v.
Massachusetts, 505 U. S. 788, in which
the Court rejected a similar standing argument, North Carolina must
convince the Court that it should reconsider
Franklin. It
has not done so. It argues that ordering appellees to recalculate
the census numbers and recertify the official result cannot help
Utah because North Carolina is "entitled" to the number of
Representatives already certified to it under the statutes that
require a decennial census, 13 U. S. C. § 141(a); mandate that the
results be reported to the President, § 141(b); obligate the
President to send Congress a statement showing the number of
Representatives to which each State is "entitled" by the census
data, 2 U. S. C. § 2a(a); and specify that the House must then send
each State a certificate of the number of Representatives to which
it is "entitled." The statutes also say that once all that is done,
each State "shall be entitled" to the number of Representatives the
"certificate" specifies. § 2a(b). Unlike North Carolina, the Court
does not read these statutes as absolutely barring a certificate's
revision in all cases. The statutes do not expressly address what
is to occur in the case of a serious mistake-say, a clerical,
mathematical, or calculation error in census data or in its
transposition. Guided by
Franklin, which found standing
despite §2a's presence, the Court reads the statute as permitting
certificate revision in such cases of error, including cases of
court-determined legal error leading to a court-required revision
of the underlying census report. So read, the statute poses no
legal bar to "redress." Nor does Pub. L. 105-119, Title II,
§209(b), 111 Stat. 2481, which entitles "[a]ny person aggrieved by
the use of any [unlawful] statistical method" to bring "a civil
action" for declaratory or injunctive "relief against the use of
such method." Despite North Carolina's argument that this statute
implicitly forbids a suit after the census' conclusion, the statute
does not say that and does not explain why Congress would wish to
deprive of its day in court a State that did not learn of a
counting method's representational consequences until after the
census' completion-and hence had little, if any, incentive to bring
a precensus action. The Court reads limitations on its jurisdiction
narrowly, see,
e. g., Webster v.
Doe, 486 U. S. 592, 603, and
will not read into a statute an unexpressed congressional intent to
bar jurisdiction the Court has previously exercised,
e. g.,
Franklin, supra. Because neither statute poses an absolute
legal barrier to relief, it is likely that Utah's victory here
would bring about the ultimate relief it seeks. See
id., at
803. Thus, Utah has standing. Pp. 459-464.
2. The Bureau's use of "hot-deck imputation" does not violate 13
U. S. C. § 195, which "authorize[s] the use of the statistical
method known as 'sampling,'" "[e]xcept for the determination of
population for purposes of apportionment of Representatives."
Bureau imputation in
454
Syllabus
the year 2000 census differs from sampling in several critical
respects: (1) As to the
nature of the enterprise, sampling
seeks to extrapolate the features of a large population from a
small one, but the Bureau's imputation process sought simply to
fill in missing data as part of an effort to count individuals one
by one. (2) As to
methodology, sampling seeks to find a
subset that will resemble a whole through the use of artificial,
random selection processes, whereas the Bureau's methodology was
not that typically used by statisticians, but that used to assure
that an individual unit (not a "subset"), chosen nonrandomly, will
resemble other individuals (not a "whole") selected by the
fortuitous unavailability of data. (3) As to the
immediate
objective, sampling seeks to extrapolate the sample's relevant
population characteristics to the whole population, while the
Bureau seeks simply to determine the characteristics of missing
individual data. These differences, whether of degree or of kind,
are important enough to place imputation outside the scope of §
195's phrase "the statistical method known as 'sampling.'" That
phraseusing the words "known as" and the quotation marks around
"sampling"-suggests a term of art with a technical meaning. And the
technical literature, which the Court has examined, see
Corning
Glass Works v.
Brennan, 417 U. S. 188, 201,
contains definitions that focus upon the sorts of differences
discussed above. Also, insofar as the parties rely on
statisticians' expert opinion, that opinion uniformly favors the
Government. Further, § 195's legislative history suggests that the
"sampling" to which the statute refers is the practice that the
Secretary called "sampling" in 1958 when Congress wrote that law,
and that the statutory word does not apply to imputation, which
Congress did not consider. Finally, Utah provides no satisfactory
alternative account of the meaning of the phrase "the statistical
method known as 'sampling.'" Its several arguments-that "sampling"
occurs whenever information on a portion of the population is used
to infer information about the whole population; that the Court
found that two methods, allegedly virtually identical to
imputation, constituted "sampling" in
Department of Commerce
v.
United States House of Representatives, 525 U. S. 316, 324-326;
that the Bureau, if authorized to engage in imputation, might
engage in wide-scale substitution of imputation for
person-by-person counting; and that two of the Bureau's imputation
methods are inaccurate-are not convincing. Utah has failed to
overcome the fact that the Bureau has long and consistently
interpreted § 195 as permitting imputation, while Congress, aware
of this interpretation, has enacted related legislation without
changing the statute. Pp. 464-473.
3. The Bureau's use of "hot-deck imputation" does not violate
the Census Clause, which requires the "actual Enumeration" of each
State's pop-
455
ulation "within three Years after the first Meeting of the
Congress ... , in such Manner as they shall by Law direct." Utah
argues that the words "actual Enumeration" require the Census
Bureau to seek out each individual and prohibit it from relying on
imputation, but the Constitution's text does not make the
distinction that Utah seeks to draw. Rather, it uses a general
word, "enumeration," that refers to a counting process without
describing the count's methodological details. The textual word
"actual" refers in context to the enumeration that would be used
for apportioning the Third Congress, succinctly clarifying the fact
that the constitutionally described basis for apportionment would
not apply to the First and Second Congresses. The final part of the
sentence says that the "actual Enumeration" shall take place "in
such Manner as" Congress itself "shall by Law direct," thereby
suggesting the breadth of congressional methodological authority,
rather than its limitation. See,
e. g.,
Wisconsin v.
City of New York, 517 U. S. 1, 19. This
understanding of the text is supported by the history of the
Constitutional Convention of 1787, which demonstrates that "actual
Enumeration" does not limit census methodology as Utah proposes,
but was intended to distinguish the census from the apportionment
process for the First Congress, which was based on conjecture
rather than a deliberately taken count. Further support is added by
contemporaneous general usage, as exemplified by late-18th-century
dictionaries defining "enumeration" simply as an act of numbering
or counting over, without reference to counting methodology, and by
contemporaneous legal documents, in which "enumeration" does not
require contact between a census taker and each enumerated
individual, but is used almost interchangeably with the phrase
"cause the number of the inhabitants ... to be taken." Indeed, the
Bureau's imputation method is similar in principle to other efforts
used since 1800 to determine the number of missing persons,
including asking heads of households, neighbors, landlords, postal
workers, or other proxies about the number of inhabitants in a
particular place. Nor can Utah draw support from the Census
Clause's basic purposes: to use population rather than wealth to
determine representation, to tie taxes and representation together,
to insist upon periodic recounts of the population, and to take
from the States the power to determine the manner of conducting the
census. Those matters of general principle do not directly help
determine the issue of detailed methodology before the Court.
Nonetheless, certain basic constitutional choices may prove
relevant. The decisions, for example, to use population rather than
wealth, to tie taxes and representation together, to insist upon
periodic recounts, and to take from the States the power to
determine methodology all suggest a strong constitutional interest
in
456
Syllabus
accuracy. And an interest in accuracy here favors the Bureau,
which uses imputation as a last resort after other methods have
failed. The Court need not decide here the precise methodological
limits foreseen by the Census Clause. It need say only that in this
instance, where all efforts have been made to reach every
household, where the methods used consist not of statistical
sampling but of inference, where that inference involves a tiny
percent of the population, where the alternative is to make a far
less accurate assessment of the population, and where consequently
manipulation of the method is highly unlikely, those limits are not
exceeded. Pp.473-479.
182 F. Supp. 2d 1165, affirmed.
BREYER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, SOUTER, and GINSBURG, JJ., joined,
and in which O'CONNOR, J., joined as to Parts I and II. O'CONNOR,
J., filed an opinion concurring in part and dissenting in part,
post, p. 479. THOMAS, J., filed an opinion concurring in
part and dissenting in part, in which KENNEDY, J., joined,
post, p. 488. SCALIA, J., filed a dissenting opinion,
post, p. 510.
Thomas R. Lee argued the cause for appellants. With him
on the briefs were
Carter G.
Phillips, Gene C.
Schaerr, Michael S.
Lee, Mark L. Shurtleff, Attorney
General of Utah,
Raymond A. Hintze, Chief Civil Deputy
Attorney General, and
J. Mark Ward, Assistant
Attorney General.
Walter Dellinger argued the cause for appellees North
Carolina et al. With him on the brief were
Jonathan D. Hacker,
Roy Cooper, Attorney General of North Carolina, and
James
Peeler Smith and
Tiare B. Smiley, Special Deputy
Attorneys General.
Solicitor General Olson argued the cause for the federal
appellees. With him on the brief were Assistant Attorney General
McCallum, Deputy Solicitor General Kneedler, Malcolm L. Stewart,
Mark B. Stern, and Jonathan H. Levy.
*
*Valle Simms Dutcher and
L. Lynn Hogue filed a
brief for the Southeastern Legal Foundation, Inc., as
amicus
curiae urging reversal.
Nancy Northup and
Deborah Goldberg filed a brief
for the Brennan Center for Justice at NYU School of Law as
amicus curiae urging affirmance.
457
JUSTICE BREYER delivered the opinion of the Court.
The question before us is whether the Census Bureau's use in the
year 2000 census of a methodology called "hot-deck imputation"
either (1) violates a statutory provision forbidding use of "the
statistical method known as 'sampling'" or (2) is inconsistent with
the Constitution's statement that an "actual Enumeration" be made.
13 U. s. C. § 195; U. s. Const., Art. I, § 2, cl. 3. We conclude
that use of "hot-deck imputation" violates neither the statute nor
the Constitution.
I A
"Hot-deck imputation" refers to the way in which the Census
Bureau, when conducting the year 2000 census, filled in certain
gaps in its information and resolved certain conflicts in the data.
The Bureau derives most census information through reference to
what is, in effect, a nationwide list of addresses. It sends forms
by mail to each of those addresses. If no one writes back or if the
information supplied is confusing, contradictory, or incomplete, it
follows up with several personal visits by Bureau employees (who
may also obtain information on addresses not listed). Occasionally,
despite the visits, the Bureau will find that it still lacks
adequate information or that information provided by those in the
field has somehow not been integrated into the master list. The
Bureau may have conflicting indications, for example, about whether
an address on the list (or a newly generated address) represents a
housing unit, an office building, or a vacant lot; about whether a
residential building is vacant or occupied; or about the number of
persons an occupied unit contains. These conflicts and
uncertainties may arise because no one wrote back, because agents
in the field produced confused responses, or because those who
processed the responses made mistakes. There may be too little time
left for further personal visits. And the Bureau may then de-
458
cide "imputation" represents the most practical way to resolve
remaining informational uncertainties.
The Bureau refers to different kinds of "imputation" depending
upon the nature of the missing or confusing information. Where, for
example, the missing or confused information concerns the existence
of a housing unit, the Bureau speaks of
"status imputation."
Where the missing or confused information concerns whether a unit
is vacant or occupied, the Bureau speaks of
"occupancy
imputation." And where the missing or confused information
concerns the number of people living in a unit, the Bureau refers
to
"household size imputation." In each case, however, the
Bureau proceeds in a somewhat similar way: It imputes the relevant
information by inferring that the address or unit about which it is
uncertain has the same population characteristics as those of a
"nearby sample or 'donor'" address or unit-e.
g., its
"geographically closest neighbor of the same type (i.
e.,
apartment or single-family dwelling) that did not return a census
questionnaire" by mail. Brief for Appellants 7-8, 11. Because the
Bureau derives its information about the known address or unit from
the current 2000 census rather than from prior censuses, it refers
to its imputation as "hot-deck," rather than "cold-deck,"
imputation.
These three forms of imputation increased the final year 2000
count by about 1.2 million people, representing 0.4% of the total
population. But because this small percentage was spread unevenly
across the country, it makes a difference in the next apportionment
of congressional Representatives. In particular, imputation
increased North Carolina's population by 0.4% while increasing
Utah's population by only 0.2%. And the parties agree that that
difference means that North Carolina will receive one more
Representative, and Utah will receive one less Representative, than
if the Bureau had not used imputation but instead had simply filled
relevant informational gaps by counting the related number of
individuals as zero.
459
B
After analyzing the census figures, Utah brought this lawsuit
against the Secretary of Commerce and the Acting Director of the
Census Bureau, the officials to whom the statutes delegate
authority to conduct the census. 28 U. S. C. § 2284. Utah claimed
that the Bureau's use of "hot-deck imputation" violates the
statutory prohibition against use of "the statistical method known
as 'sampling,'" 13 U. S. C. § 195, and is inconsistent with the
Constitution's statement that an "actual Enumeration" be made, Art.
I, § 2, cl. 3. Utah sought an injunction compelling the census
officials to change the official census results. North Carolina
intervened. The District Court found in the Census Bureau's favor.
182 F. Supp. 2d 1165 (Utah 2001). Utah appealed. 28 U. S. C. §
1253. And we postponed consideration of jurisdiction pending
hearing the case on the merits. 534 U. S. 1112 (2002).
II
North Carolina argues at the outset that the federal courts lack
the constitutional power to hear this case. Article III, § 2, of
the Constitution extends the "judicial Power" of the United States
to actual "Cases" and "Controversies." A lawsuit does not fall
within this grant of judicial authority unless, among other things,
courts have the power to "redress" the "injury" that the defendant
allegedly "caused" the plaintiff.
Lujan v.
Defenders of
Wildlife, 504 U.
S. 555, 561
(1992); Allen v.
Wright, 468 U. S. 737, 751
(1984). And, in North Carolina's view, the courts cannot "redress"
the injury that Utah claims to have suffered here. Hence Utah does
not have the "standing" that the Constitution demands.
In
Franklin v.
Massachusetts, 505 U. S. 788 (1992),
this Court considered, and rejected, a similar claim. A private
plaintiff had sued the Secretary of Commerce, challenging the
legality of a 1990 census counting method as "arbitrary and
capricious" and contrary to certain specific statutes.
460
Id., at 790-791. That plaintiff sought to require the
Secretary to recalculate the numbers and recertify the official
results. The plaintiff hoped that would ultimately lead to a
reapportionment that would assign an additional Representative to
his own State.
Eight Members of the Court found that the plaintiff had
standing. Four Justices considered only whether the law permitted
courts to review Census Bureau decisions under the Administrative
Procedure Act. They concluded that it did. And they saw no further
standing obstacle.
Id., at 807 (STEVENS, J., concurring in
part and concurring in judgment).
Four other Justices went further. They found that the
controversy between the plaintiff and the Secretary was concrete
and adversary. They said:
"The Secretary certainly has an interest in defending her policy
determinations concerning the census; even though she cannot
herself change the reapportionment, she has an interest in
litigating its accuracy." Id., at 803 (opinion of O'CONNOR,
J.).
They also found that, as a practical matter, redress seemed
likely. They said:
"[A]s the Solicitor General has not contended to the contrary,
we may assume it is substantially likely that the President and
other executive and congressional officials would abide by an
authoritative interpretation of the census statute and
constitutional provision ... even though they would not be directly
bound by such a determination." Ibid.
They saw no further potential obstacle to standing.
Ibid.
We can find no significant difference between the plaintiff in
Franklin and the plaintiff (Utah) here. Both brought their
lawsuits after the census was complete. Both claimed that the
Census Bureau followed legally improper counting methods. Both
sought an injunction ordering the Secretary
461
of Commerce to recalculate the numbers and recertify the
official result. Both reasonably believed that the Secretary's
recertification, as a practical matter, would likely lead to a new,
more favorable, apportionment of Representatives. Given these
similarities, North Carolina must convince us that we should
reconsider
Franklin. It has not done so.
North Carolina does not deny that the courts can order the
Secretary of Commerce to recalculate the numbers and to recertify
the official census result. Rather it points out that Utah suffers,
not simply from the lack of a proper census "report" (a document),
but more importantly from the lack of the additional congressional
Representative to which North Carolina believes itself entitled as
a consequence of the filing of that document. Whatever we may have
said in
Franklin, North Carolina argues, court-ordered
relief simply cannot reach beyond the "report" and, here, a proper
"report" cannot help bring about that ultimate "redress."
The reason North Carolina believes that court-ordered relief, i.
e., the new document, cannot help is that, in its view, the
statutes that set forth the census process make ultimate redress
legally impossible. Those statutes specify that the Secretary of
Commerce must "take a decennial census of population as of the
first day of April" 2000, 13 U. S. C. § 141(a); he must report the
results to the President by January 1,2001, § 141(b); the President
must transmit to Congress by January 12,2001, a statement showing
the "whole number of persons in each State ... and the number of
Representatives to which each State would be entitled," 2 U. S. C.
§ 2a(a); and, within 15 days of receiving that statement, 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," § 2a(b). The statutes also say that, once all
that is done, each State "shall be entitled" to the number of
Representatives that the "certificate" specifies "until the taking
effect of a reapportionment under this section or subsequent
statute."
Ibid.
462
North Carolina points out that all of this was done by January
16,2001. And North Carolina concludes that it is "entitled" to the
number of Representatives that the "certificate" specifies (i.
e., one more than Utah would like)-come what may.
We disagree with North Carolina because we do not read these
statutes so absolutely-as if they barred a certificate's revision
in all cases no matter what. The statutes themselves do not
expressly say what is to occur should the "report" or the
"statement" upon which the Clerk's "certificate" rests turn out to
contain, or to reflect, a serious mistake. The language is open to
a more flexible reading that would permit correction of a
certificate found to rest upon a serious error-say, a clerical, a
mathematical, or a calculation error, in census data or in its
transposition. And if that error is uncovered before new
Representatives are actually selected, and its correction
translates mechanically into a new apportionment of Representatives
without further need for exercise of policy judgment, such
mechanical revision makes good sense. In such cases, the
"certificate" previously sent would have turned out not to have
been a proper or valid certificate, it being understood that these
statutes do not bar the substitution of a newer, more accurate
version. Guided by
Franklin, which found standing despite
the presence of this statute, we read the statute as permitting
"certificate" revision in such cases of error, and we include among
them cases of court-determined legal error leading to a
court-required revision of the underlying Secretarial "report." So
read, the statute poses no legal bar to "redress."
North Carolina adds that another statute, enacted after
Franklin, nonetheless bars our consideration of this case.
That statute authorizes "[a]ny person aggrieved by the use of any
[unlawful] statistical method" to bring "a civil action" for
declaratory or injunctive "relief against the use of such method."
Pub. L. 105-119, Title II, § 209(b), 111 Stat. 2481. North Carolina
argues that this statute, by directly authoriz-
463
ing a lawsuit
prior to conclusion of the census,
implicitly forbids a lawsuit
after its conclusion. And it
supports this reading by pointing to a legislative finding that it
would "be impracticable" to provide relief "after" that time.
Id., § 209(a)(8).
This statute, however, does not say that it bars postcensus
lawsuits. It does not explain why Congress would have wished to
deprive of its day in court a State that did not learn about a
counting method's representational consequences until after the
census is complete-and hence had little, if any, incentive to bring
a precensus action. Nor (as we have just explained), if a lawsuit
is brought soon enough after completion of the census and heard
quickly enough, is relief necessarily "impracticable." We read
limitations on our jurisdiction to review narrowly. See
Webster v.
Doe, 486 U. S. 592, 603 (1988); see also
Bowen v.
Michigan Academy of Family Physicians,
476 U. S. 667,
670 (1986). But see
National Railroad Passenger Corporation
v.
National Assn. of Railroad Passengers, 414 U. S. 453 (1974)
(special circumstances warrant reading statute as limiting the
persons authorized to bring suit). We do not normally read into a
statute an unexpressed congressional intent to bar jurisdiction
that we have previously exercised.
Franklin; Department of
Commerce v.
Montana, 503 U. S. 442 (1992). And
we shall not do so here.
Neither statute posing an absolute legal barrier to relief, we
believe it likely that Utah's victory here would bring about the
ultimate relief that Utah seeks. Victory would mean a declaration
leading, or an injunction requiring, the Secretary to substitute a
new "report" for the old one. Should the new report contain a
different conclusion about the relative populations of North
Carolina and Utah, the relevant calculations and consequent
apportionment-related steps would be purely mechanical; and several
months would remain prior to the first post-2000 census
congressional election. Under these circumstances, it would
seem,
464
as in
Franklin, "substantially likely that the President
and other executive and congressional officials would abide by an
authoritative interpretation of the census statute and
constitutional provision .... " 505 U. S., at 803 (opinion of
O'CONNOR, J.).
Moreover, in terms of our "standing" precedent, the courts would
have ordered a change in a legal status (that of the "report"), and
the practical consequence of that change would amount to a
significant increase in the likelihood that the plaintiff would
obtain relief that directly redresses the injury suffered. We have
found standing in similar circumstances. See,
e. g., Federal
Election Comm'n v.
Akins, 524 U. S. 11, 25 (1998)
(standing to obtain court determination that the organization was a
"political committee" where that determination would make agency
more likely to require reporting, despite agency's power not to
order reporting regardless);
Bennett v.
Spear,
520 U. S. 154,
169-171 (1997) (similar in respect to determination of the
lawfulness of an agency's biological report);
Metropolitan
Washington Airports Authority v.
Citizens for Abatement of
Aircraft Noise, Inc., 501 U. S. 252, 264-265
(1991) (similar in respect to determination that transfer of
airport control to local agency is unlawful). And related cases in
which we have denied standing involved a significantly more
speculative likelihood of obtaining ultimate relief. See
Lujan, 504 U. S., at 564565, n. 2 (obtaining ultimate relief
"speculative");
Simon v.
Eastern Ky. Welfare Rights
Organization, 426
U. S. 26, 42 (1976) (same). We consequently conclude that Utah
has standing here, and we have jurisdiction.
III
Utah rests its statutory claim on a federal sampling stat-
ute which 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 con-
465
siders it feasible, authorize the use of the statistical method
known as 'sampling' .... " 13 U. s. C. § 195.
We have previously read this language as forbidding
apportionment-related use of "the statistical method known as
'sampling.'"
Department of Commerce v.
United States
House of Representatives, 525 U. S. 316, 343
(1999). Utah claims that imputation, as practiced by the Census
Bureau, is a form of that forbidden "sampling" method.
The Government argues that imputation is not "sampling."
And it has used a simplified example to help explain why this is
so. Imagine a librarian who wishes to determine the total number of
books in a library. If the librarian finds a statistically sound
way to select a sample
(e. g., the books contained on every
10th shelf) and if the librarian then uses a statistically sound
method of extrapolating from the part to the whole
(e. g.,
multiplying by 10), then the librarian has determined the total
number of books by using the statistical method known as
"sampling." If, however, the librarian simply tries to count every
book one by one, the librarian has not used sampling. Nor does the
latter process suddenly become "sampling" simply because the
librarian, finding empty shelf spaces, "imputes" to that empty
shelf space the number of books (currently in use) that likely
filled them-not even if the librarian goes about the imputation
process in a rather technical way, say, by measuring the size of
nearby books and dividing the length of each empty shelf space by a
number representing the average size of nearby books on the same
shelf.
This example is relevant here both in the similarities and in
the differences that it suggests between sampling and imputation.
In both, "'information on a portion of a population is used to
infer information on the population as a whole.'" Brief for
Appellants 18. And in Utah's view, and that of JUSTICE O'CONNOR,
see
post, at 482-483 (opinion concurring in part and
dissenting in part), that similarity brings
466
the Census Bureau imputation process within the relevant
statutory phrase.
On the other hand, the two processes differ in several critical
respects: (1) In respect to the
nature of the enterprise,
the librarian's sampling represents an overall approach to the
counting problem that from the beginning relies on data that will
be collected from only a part of the total population, Declaration
of Howard Hogan ~~ 19-23, App. 257-259 (hereinafter Hogan); (2) in
respect to
methodology, the librarian's sampling focuses on
using statistically valid sample-selection techniques to determine
what data to collect, ~~ 29-30,
id., at 261-262; Declaration
of Joseph Waksberg ~~ 6, 10,
id., at 290-294 (hereinafter
Waksberg); and (3) in respect to
the immediate objective,
the librarian's sampling seeks immediately to extrapolate the
sample's relevant population characteristics to the whole
population, Hogan ~ 30,
id., at 262; Declaration of David W.
Peterson ~ 8,
id., at 352 (hereinafter Peterson).
By way of contrast, the librarian's imputation (1) does not
represent an overall approach to the counting problem that will
rely on data collected from only a subset of the total population,
since it is a method of
processing data (giving a value to
missing data), not its collection, ~~ 21, 29,
id., at
257-258,261-262; it (2) does not rely upon the same statistical
methodology generally used for sample selection, U. S. Dept. of
Commerce, Decennial Statistical Studies Division, Census 2000
Procedures and Operations, Memorandum Series B-17, Feb. 28, 2001,
id., at 194-196; Waksberg ~~ 6, 10,
id., at 290,
293-294; and it (3) has as its immediate objective determining the
characteristics of missing individual books, not extrapolating
characteristics from the sample to the entire book population,
Hogan ~ 17,
id., at 256-257; Peterson ~ 9,
id., at
352.
These same differences distinguish Bureau imputation in the year
2000 census from "the statistical method known as 'sampling.' " 13
U. S. C. § 195. The nature of the Bureau's
467
enterprise was not the extrapolation of the features of a large
population from a small one, but the filling in of missing data as
part of an effort to count individuals one by one. But cf.
post, at 482-483 (O'CONNOR, J., concurring in part and
dissenting in part) (suggesting the contrary). The Bureau's
methodology was not that typically used by statisticians seeking to
find a subset that will resemble a whole through the use of
artificial, random selection processes; but that used to assure
that an individual unit (not a "subset"), chosen nonrandomly, will
resemble other individuals (not a "whole") selected by the
fortuitous unavailability of data. L. Kish, Survey Sampling 26
(1965) ("In statistical literature [sampling] is generally
synonymous with random sampling"). And the Bureau's immediate
objective was the filling in of missing data; not extrapolating the
characteristics of the "donor" units to an entire population.
These differences, whether of degree or of kind, are important
enough to place imputation outside the scope of the statute's
phrase "the statistical method known as 'sampling.'" For one thing,
that statutory phrase-using the words "known as" and the quotation
marks that surround "sampling"-suggests a term of art with a
technical meaning. And the technical literature, which we have
consequently examined, see
Corning Glass Works v.
Brennan, 417
U. S. 188, 201 (1974), contains definitions that focus upon
differences of the sort discussed above. One text, for example,
says that
"[s]urvey sampling, or population sampling, deals
with methods for selecting and observing a part (sample) of the
population in order to make inferences about the whole population."
Kish,
supra, at 18. Another says that "sample, as it is used
in the [statistics] literature ... means a subset of the population
that is used to gain information about the entire population," G.
Henry, Practical Sampling 11 (1990), or, in other words, "a model
of the population,"
ibid. Yet another says that a "sampling
method is a method of selecting a fraction of the population in a
way that the selected sample
468
represents the population." P. Sukhatme, Sampling Theory of
Surveys with Applications 1 (1954). A 1953 treatise, to which Utah
refers, says that a broader definition of "sample" is imprecise,
adding that the term "should be reserved for a set of units ...
which has been selected in the belief that it will be
representative of the whole aggregate." F. Yates, Sampling Methods
for Censuses and Surveys § 1.1, p. 2 (2d rev. ed. 1953)
(hereinafter Yates). And Census Bureau documents state that
"professional statisticians" reserve the term "'sample' ... for
instances when the selection of the smaller population is based on
the methodology of their science." Report to Congress-The Plan for
Census 2000, p. 23 (revised and reissued Aug. 1997) (hereinafter
Report to Congress).
These definitions apply easily and naturally to what we called
"sampling" in the librarian example, given its nature, methods, and
immediate objectives. These definitions do not apply to the
librarian's or to the Bureau's imputation process-at least not
without considerable linguistic squeezing.
For another thing, Bureau statisticians testified in the
District Court that, in their expert opinion, Bureau imputation was
not "sampling" as that term is used in the field of statistics.
Hogan ~~ 18-30, App. 257-262; Waksberg ~~ 6-10,
id., at
290-294 (former Bureau statistician). Their reasons parallel those
to which we have referred.
Ibid. Although Utah presented
other experts who testified to the contrary, Utah has not relied
upon their testimony or expert knowledge here. Insofar as the
parties now rely on expert opinion, that opinion uniformly favors
the Government.
Further, the history of the sampling statute suggests that
Congress did not have imputation in mind in 1958 when it wrote that
law. At that time, the Bureau already was engaged in what it called
"sampling," a practice that then involved asking a small subset of
the population subsidiary census questions about, say, automobiles,
telephones, or dish-
469
washers, and extrapolating the responses to produce national
figures about, say, automobile ownership. See M. Anderson, The
American Census: A Social History 199 (1988) (discussing "long
form" survey, sent in 1950 to about 20% of population). The
Secretary of Commerce asked Congress to enact a law that would make
clear the Bureau had legal authority to engage in this "practice."
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., 7 (1957) (Statement of
Purpose and Need) (Secretary of Commerce, describing Bureau's
ability
basis"). The Secretary did not object to a legislative
restriction that would, in effect, deny the Bureau sampling
authority in the area of apportionment. And Congress, in part to
help achieve cost savings, responded with the present statute which
provides that limited authority. See S. Rep. No. 698, 85th Cong.,
1st Sess., 3 (1957) ("[P]roper use of sampling methods can result
in substantial economies in census taking"); S. Rep. No. 94-1256,
p. 5 (1976) ("use of sampling procedures and surveys ... urged for
the sake of economy and reducing respondent burden").
This background suggests that the "sampling" to which the
statute refers is the practice that the Secretary called "sampling"
at the time-for that is what Congress considered. And it suggests
that the statutory word does not apply to imputation-for that is a
matter that Congress did not consider. Indeed, had the Secretary
believed that Congress intended to restrict the Bureau's authority
to engage in apportionment-related imputation, he would likely have
expressed an objection, for the Bureau had used such imputation in
the past and intended to use it in the future. Hogan ~ 39, App.
266-267. Moreover, the Bureau's rationale for using sampling was
quite different from its rationale for using imputation. An advance
plan to sample a subset saves
470
money, for it restricts a survey's potential scope. Bureau
imputation does not save money, for the Bureau turns to imputation
only after ordinary questionnaires and interviews have failed.
Rather, imputation reflects a Bureau decision to spend at least a
small amount of additional money in order to avoid placing the
figure "zero" next to a listed address when it is possible to do
better. See ~ 34,
id., at 264 ("The goal in Census 2000 was
to conduct a census that was both numerically and distributively
accurate").
Finally, Utah provides no satisfactory alternative account of
the meaning of the phrase "the statistical method known as
'sampling.'" Its arguments suggest that the phrase should apply to
any use of statistics that would help the Bureau extrapolate from
items about which the Bureau knows to other items, the
characteristics of which it does not know. Brief for Appellants 9.
But that definitional view would include within the statutory
phrase matters that could not possibly belong there-for example,
the use of statistics to determine whether it is better to ask a
postal worker or a neighbor about whether an apparently empty house
is occupied. And it would come close to forbidding the use of all
statistics, not simply one statistical method ("sampling"). Utah's
express definitional statement-that "sampling" occurs whenever
"information on a portion of a population is used to infer
information on the population as a whole"suffers from a similar
defect. Indeed, it is even broader, coming close to a description
of the mental process of inference itself. While the Census Bureau
and at least one treatise have used somewhat similar language to
define "sampling," they have immediately added the qualification
that such is the "layman's" view, while professional statisticians,
when speaking technically, speak more narrowly and more precisely.
Report to Congress 23; Yates 1-2.
Utah makes several additional arguments. It says that in
House of Representatives, the Court found that two methods,
virtually identical to imputation, constituted "sampling."
471
It says that the Bureau, if authorized to engage in imputation,
might engage in wide-scale substitution of imputation for
person-by-person counting. And it says that, in any event, the
Bureau's methods for imputing
status and
occupancy,
see
supra, at 458, are inaccurate.
In our view, however,
House of Representatives is
distinguishable. The two instances of Bureau methodology at issue
there satisfied the technical criteria for "sampling" in ways that
the imputation here at issue does not. In both instances, the
Bureau planned at the outset to produce a statistically sound
sample from which it extrapolated characteristics of an entire
population. In the first instance it did so by selecting census
blocks randomly from which to extrapolate global census figures in
order to compare (and adjust) the accuracy of figures obtained in
traditional ways with figures obtained through statistical
sampling. 525 U. S., at 325-326. In the second instance it used a
sample drawn from questionnaire nonrespondents in particular census
tracts in order to obtain the population figure for the entire
tract. The "sampling" in the second instance more closely resembles
the present effort to fill in missing data, for the "sample" of
nonrespondents was large (about 20% of the tract) compared to the
total nonresponding population (about 30% of the entire tract).
Id., at 324-325. Nonetheless, we believe that the Bureau's
view of the enterprise as sampling, the deliberate decision taken
in advance to find an appropriate sample, the sampling methods used
to do so, the immediate objective of determining through
extrapolation the size of the entire nonresponding population, and
the quantitative figures at issue (10% of the tract there; 0.4%
here), all taken together, distinguish it-in degree if not in
kind-from the imputation here at issue.
Nor are Utah's other two arguments convincing. As to the first,
Utah has not claimed that the Bureau has used imputation to
manipulate results. It has not explained how census-taking that
fills in ultimate blanks through imputa-
472
tion is more susceptible to manipulation than census-taking that
fills in ultimate blanks with a zero. And given the advance
uncertainties as to which States imputation might favor,
manipulation would seem difficult to arrange. If JusTICE O'CONNOR'S
speculation comes to pass-that the Bureau would decide, having
litigated this case and utilized imputation in a subsequent census,
to forgo the benefits of that process because of its results-the
Court can address the problem at that time. As to the second,
Utah's claim concerns the nature of the imputation method, not its
accuracy as applied-though we add that neither the record, see
infra, at 477, nor JUSTICE O'CONNOR'S opinion, see
post, at 487-488, gives us any reason to doubt that accuracy
here.
We note one further legal hurdle that Utah has failed to
overcome-the Bureau's own interpretation of the statute. The
Bureau, which recommended this statute to Congress, has
consistently, and for many years, interpreted the statute as
permitting imputation. Hogan ~~ 39, 41, 43, 46, 47, 52, App.
266-273. Congress, aware of this interpretation, has enacted
related legislation without changing the statute. See,
e.
g., Census Address List Improvement Act of 1994, Pub. L.
103-430, 108 Stat. 4393; Foreign Direct Investment and
International Financial Data Improvements Act of 1990, Pub. L.
101-533, 104 Stat. 2344; Act of Oct. 14, 1986, Pub. L. 99-467, 100
Stat. 1192. (Indeed, the Bureau told Congress of its planned use of
imputation in the year 2000 census without meeting objection.) And
the statute itself delegates to the Secretary the authority to
conduct the decennial census "in such form and content as he may
determine." 13 U. S. C. § 141(a). Although we do not rely on it
here, under these circumstances we would grant legal deference to
the Bureau's own legal conclusion were that deference to make the
difference.
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837, 842-845
(1984).
In sum, imputation differs from sampling in respect to the
nature of the enterprise, the methodology used, and the im-
473
mediate objective sought. And as we have explained, these
differences are of both kind and degree. That the differences may
be of degree does not lessen their significance where we are
charged with interpreting statutory language and we are faced with
arguments that suggest that it covers even the most ordinary of
inferences. Since that cannot be so, we have found the keys to
understanding the operative phrase in its history: the fact that
the Bureau itself believed imputation to stand outside the
prohibition it requested Congress pass, the fact that the Bureau
has consistently used imputation, and the fact that Congress, on
notice of that use, has not suggested otherwise. For these reasons,
we conclude that the statutory phrase "the statistical method known
as 'sampling'" does not cover the Bureau's use of imputation.
IV
Utah's constitutional claim rests upon the words "actual
Enumeration" as those words appear in the Constitution's Census
Clause. That Clause, as changed after the Civil War (in ways that
do not matter here), reads as follows:
"Representatives and direct Taxes shall be apportioned among the
several States ... according to their respec-
made within three Years after the first Meeting of the Congress
of the United States, ... in such Manner as they shall by Law
direct." Art. I, § 2, cl. 3 (emphasis added); see also Amdt. 14, §
2.
Utah argues that the words "actual Enumeration" require the
Census Bureau to seek out each individual. In doing so, the Bureau
may rely upon documentary evidence that an individual exists, say,
a postal return, or upon eyewitness evidence, say, by a census
taker. It can fill in missing data through the use of testimonial
reports, including secondhand or thirdhand reports, made by a
family member, neighbor,
474
or friend. But it may not rely upon imputation, which fills in
data by assuming, for example, that an unknown house has the same
population characteristics as those of the closest similar house
nearby.
We do not believe the Constitution makes the distinction that
Utah seeks to draw. The Constitution's text does not specify any
such limitation. Rather, the text uses a general word,
"enumeration," that refers to a counting process without describing
the count's methodological details. The textual word "actual"
refers in context to the enumeration that will be used for
apportioning the Third Congress, succinctly clarifying the fact
that the constitutionally described basis for apportionment will
not apply to the First and Second Congresses. The final part of the
sentence says that the "actual Enumeration" shall take place "in
such Manner as" Congress itself "shall by Law direct," thereby
suggesting the breadth of congressional methodological authority,
rather than its limitation. See,
e. g.,
Wisconsin v.
City of New York, 517 U. S. 1, 19 (1996).
The history of the constitutional phrase supports our
understanding of the text. The Convention sent to its Committee of
Detail a draft stating that Congress was to "regulate the number of
representatives by the number of
ords of the Federal Convention of 1787, pp. 178, 182-183 (rev.
ed. 1966) (hereinafter Farrand). After making minor, here
irrelevant, changes, the Committee of Detail sent the draft to the
Committee of Style, which, in revising the language, added the
words "actual Enumeration."
Id., at 590, 591. Although not
dispositive, this strongly suggests a similar meaning, for the
Committee of Style "had no authority from the Convention to alter
the meaning" of the draft Constitution submitted for its review and
revision.
Powell v.
M cCormack, 395 U. S. 486, 538-539
(1969); see 2 Farrand 553; see also
Nixon v.
United
States, 506 U. S.
224, 231 (1993).
475
Hence, the Framers would have intended the current phrase, "the
actual Enumeration shall be made ... in such Manner as [Congress]
... shall by Law direct," as the substantive equivalent of the
draft phrase, "which number [of inhabitants] shall ... be taken in
such manner as [Congress] shall direct." 2 Farrand 183. And the
Committee of Style's phrase offers no linguistic temptation to
limit census methodology in the manner that Utah proposes.
Moreover, both phrases served to distinguish the census from the
process of apportionment for the first Congress. Read in
conjunction with the proceedings of the Constitutional Convention,
the text of Article I makes clear that the original allocation of
seats in the House was based on a kind of "conjectur[e]," 1
id., at 578-579, in contrast to the deliberately taken count
that was ordered for the future. U. S. Const., Art. I, § 2, cl. 3;
1 Farrand 602; 2
id., at 106; 2 The Founders' Constitution
135-136, 139 (P. Kurland & R. Lerner eds. 1987) (hereinafter
Kurland & Lerner); see also
Department of Commerce, 503
U. S., at 448, and n. 15;
post, at 498500 (THOMAS, J.,
concurring in part and dissenting in part) (describing colonial
estimates). What was important was that contrast-rather than the
particular phrase used to describe the new process.
Contemporaneous general usage of the word "enumeration" adds
further support. Late-18th-century dictionaries define the word
simply as an "act of numbering or counting over," without reference
to counting methodology. 1 S. Johnson, A Dictionary of the English
Language 658 (4th rev. ed. 1773); N. Bailey, An Etymological
English Dictionary (26th ed. 1789) ("numbering or summing up"); see
also Webster's Third New International Dictionary 759 (1961 ed.)
("the act of counting," "a count of something (as a population)").
Utah's strongest evidence, a letter from George Washington
contrasting a population "estimate" with a "census" or
"enumeration," does not demonstrate the contrary, for one can
indeed contrast, say, a rough estimate with an
476
enumeration, without intending to encompass in the former
anything like the Bureau's use of imputation to fill gaps or
clarify confused information about individuals. 31 Writings of
George Washington 329 (J. Fitzpatrick ed. 1931); see 8 Writings of
Thomas Jefferson 236 (A. Lipscomb ed. 1903) (comparing the "actual
returns" with "conjectures"); 1 Farrand 602; 2
id., at 106;
Kurland & Lerner 135-136. And the evidence JUSTICE THOMAS sets
forth,
post, at 498-500 (opinion concurring in part and
dissenting in part), demonstrates the same. The kinds of estimates
to which his sources refer are those based on "the number of
taxable polls, or the number of the militia."
Post, at 494
(internal quotation marks omitted). Such sources show nothing other
than that "enumeration" may be "incompatible (or at least
arguably incompatible ... ) with gross statistical
estimates,"
House of Representatives, 525 U. S., at 347
(SCALIA, J., concurring in part), but such "gross statistical
estimates" are not at stake here.
Contemporaneous legal documents do not use the term
"enumeration" in any specialized way. The Constitution itself, in a
later article, refers to the words "actual Enumeration" as meaning
"Census or Enumeration," Art. I, § 9, cl. 4, thereby indicating
that it did not intend the term "actual Enumeration" as a term of
art requiring, say, contact (directly or through third parties)
between a census taker and each enumerated individual. The First
Census Act uses the term "enumeration" almost interchangeably with
the phrase "cause the number of the inhabitants ... to be taken."
And the marshals who implemented that Act did not try to contact
each individual personally, as they were required only to report
the names of all heads of households. Act of Mar. 1, 1790, ch. 2, §
1, 1 Stat. 102. Cf.
House of Representatives, supra, at 347
(SCALIA, J., concurring in part) (noting that the Census Acts of
1810 through 1950 required census workers to "visit each home in
person"); see also
post, at 504 (THOMAS, J., concurring in
part and dissenting in part).
477
Of course, this last limitation suggests that the Framers
expected census enumerators to seek to reach each individual
household. And insofar as statistical methods substitute for any
such effort, it may be argued that the Framers did not believe that
the Constitution authorized their use. See
House of
Representatives, supra, at 346-349 (SCALIA, J., concurring in
part). But we need not decide this matter here, for we do not deal
with the substitution of statistical methods for efforts to reach
households and enumerate each individual. Here the Census Bureau's
method is used sparingly only after it has exhausted its efforts to
reach each individual, and it does not differ in principle from
other efforts used since 1800 to determine the number of missing
persons. Census takers have long asked heads of households,
"neighbors, landlords, postal workers, or other proxies" about the
number of inhabitants in a particular place, Hogan ~ 11, App. 253.
Such reliance on hearsay need be no more accurate, is no less
inferential, and rests upon no more of an individualized effort for
its inferences than the Bureau's method of imputation.
Nor can Utah draw support from a consideration of the basic
purposes of the Census Clause. That Clause reflects several
important constitutional determinations: that comparative state
political power in the House would reflect comparative population,
not comparative wealth; that comparative power would shift every 10
years to reflect population changes; that federal tax authority
would rest upon the same base; and that Congress, not the States,
would determine the manner of conducting the census. See
Wesberry v.
Sanders, 376 U. S. 1, 9-14, and n.
34 (1964); 1 Farrand
35-36,196-201,540-542,559-560,571,578-588,591-597,603; 2
id., at 2-3, 106; Kurland & Lerner 86-144; see The
Federalist No. 54, pp. 336-341
(C. Rossiter ed. 1961) (J.
Madison);
id., No. 55, at 341-350 (J. Madison);
id.,
No. 58, at 356-361 (J. Madison); 31 Writings of George Washington,
supra, at 329. These basic determinations reflect the
fundamental na-
478
ture of the Framers' concerns. Insofar as JUSTICE THOMAS proves
that the Framers chose to use population, rather than wealth or a
combination of the two, as the basis for representation,
post, at 500-503, we agree with him. What he does not show,
however, is that, in order to avoid bias or for other reasons, they
prescribed, or meant to prescribe, the precise method by which
Congress was to determine the population. And he cannot show the
latter because, for the most part, the choice to base
representation on population, like the other fundamental choices
the Framers made, are matters of general principle that do not
directly help determine the issue of detailed methodology before
us. Declaration of Jack N. Rakove in
Department of Commerce
v.
United States House of Representatives, O. T. 1998, No.
98-404, p. 387 ("What was
data was
[sic] to be compiled").
Nonetheless, certain basic constitutional choices may prove
relevant. The decisions, for example, to use population rather than
wealth, to tie taxes and representation together, to insist upon
periodic recounts, and to take from the States the power to
determine methodology all suggest a strong constitutional interest
in accuracy. And an interest in accuracy here favors the Bureau.
That is because, as we have said, the Bureau uses imputation only
as a last resortafter other methods have failed. In such instances,
the Bureau's only choice is to disregard the information it has,
using a figure of zero, or to use imputation in an effort to
achieve greater accuracy. And Bureau information provided in the
District Court suggests that those efforts have succeeded. U. S.
Dept. of Commerce, Economics and Statistics Admin., Census 2000
Informational Memorandum No. 110, App. 445448 (concluding that
postcensus research confirms that imputation appropriately included
individuals in the census who would otherwise have been
excluded).
479
Of course, the Framers did not consider the imputation process.
At the time they wrote the Constitution "statisticks" referred to "
'a statement or view of the civil condition of a people,'" not the
complex mathematical discipline it has become. P. Cohen, A
Calculating People 150-151 (1982). Yet, however unaware the Framers
might have been of specific future census needs, say, of
automobiles for transport or of computers for calculation, they
fully understood that those future needs might differ dramatically
from those of their own times. And they were optimists who might
not have been surprised to learn that a year 2000 census of the
Nation that they founded required "processed data for over 120
million households, including over 147 million paper questionnaires
and 1.5 billion pages of printed material." Hogan ~ 8, App. 251.
Consequently, they did not write detailed census methodology into
the Constitution. As we have said, we need not decide here the
precise methodological limits foreseen by the Census Clause. We
need say only that in this instance, where all efforts have been
made to reach every household, where the methods used consist not
of statistical sampling but of inference, where that inference
involves a tiny percent of the population, where the alternative is
to make a far less accurate assessment of the population, and where
consequently manipulation of the method is highly unlikely, those
limits are not exceeded.
For these reasons the judgment of the District Court is
Affirmed.
JUSTICE O'CONNOR, concurring in part and dissenting in part.
In the year 2000 census, the Census Bureau used the statistical
technique known as "hot-deck imputation" to calculate the state
population totals that were used to apportion congressional
Representatives. While I agree with the Court's general description
of the imputation process, its conclusion that the appellants have
standing to challenge
480
Opinion of O'CONNOR, J.
its use, and its conclusion that we otherwise have jurisdiction
to consider that challenge, I would find that the Bureau's use of
imputation constituted a form of sampling and thus was prohibited
by § 195 of the Census Act, 13 U. S. C. § 1
et seq.
Therefore, while I concur in Parts I and II of the majority's
opinion, I respectfully dissent from Part III and have no occasion
to decide whether the Constitution prohibits imputation, which the
majority addresses in Part 1\1.
I
To conduct the year 2000 census, the Census Bureau (Bureau)
first created a master address file that attempted to list every
residential housing unit in the United States. See U. S. Dept. of
Commerce, Economics and Statistics Admin., Census 2000 Operational
Plan VI (Dec. 2000) (hereinafter Census 2000 Operational Plan). The
Bureau then conducted a survey of every address on that list,
primarily through the use of mail-back questionnaires. See
id., at IX.A to IX.E;
ante, at 457. As relevant here,
these questionnaires requested the name of each person living at a
given address. See Census 2000 Operational Plan V.B.
Because not every address returned a questionnaire, the Bureau
had its enumerators attempt to contact nonresponding addresses up
to six times by phone or in person in an effort to obtain
population information for each address. See Declaration of Howard
Hogan ~ 73, App. 285 (hereinafter Hogan); Census 2000 Operational
Plan IX.G. This was known as "nonresponse followup."
Ibid.
Also during this followup procedure, addresses that appeared vacant
were marked as such while addresses determined to be nonexistent
were noted for later deletion. See Hogan ~~ 69, 73, App. 283, 285.
When all followup procedures were completed, the Bureau still
lacked population information for approximately 0.4% of the
addresses on the master address list because the Bureau had been
unable to classify them as either "occupied, vacant, or
nonexistent."
Id., at 188. Additionally, the
481
Bureau lacked household size information for approximately 0.2%
of addresses that were classified as occupied. See
id., at
191.
At this point, the Bureau employed the statistical technique
known as "hot-deck imputation." For each unsuccessfully enumerated
address, the Bureau imputed population data by copying
corresponding data from a "'donor'" address.
Ante, at 458.
The donor address was the "'geographically closest neighbor of the
same type (i.
e., apartment or single-family dwelling) that
did not return a census questionnaire' by mail."
Ibid.
(quoting Brief for Appellants 7-8, 11). What this means is that
donor addresses were selected only from addresses that had been
personally surveyed by the Bureau's enumerators, primarily through
the nonresponse followup procedure described above. See App. 156.
After imputation was completed, every address on the master address
list was associated with a household size number that had been
determined either by imputation or by enumeration (although that
number was zero for addresses ultimately classified as vacant or
nonexistent).
The Bureau used the imputation-adjusted data to calculate state
population totals.
Ante, at 458. Because these totals were
used to determine the apportionment of congressional
Representatives,
ibid., we must determine whether the
Bureau's use of imputation constituted a form of sampling. If it
did, it was prohibited by § 195 of the Census Act, 13 U. S. C. § 1
et seq. See
Department of Commerce v.
United
States House of Representatives, 525 U. S. 316, 338
(1999).
II
As initially enacted, § 195 provided that "[e]xcept for the
determination of population for apportionment purposes, the
Secretary [of Commerce] 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.). As relevant here, Congress re-
482
Opinion of O'CONNOR, J.
placed "may, where he deems it appropriate" with "shall, if he
considers it feasible" when it amended § 195 in 1976. Pub. L.
94-521, 90 Stat. 2464. In
House of Representatives, we found
that this amended language "might reasonably be read as either
permissive or prohibitive with regard to the use of sampling for
apportionment purposes." 525 U. S., at 339. Even so, we held that §
195 maintained the prohibition on sampling with respect to
apportionment given the "broader context" of "over 200 years during
which federal statutes [had] prohibited the use of statistical
sampling where apportionment [was] concerned."
Id., at
339-341. With respect to § 195, then, the only question is whether
"hot-deck imputation" is a form of sampling.
To answer this question, I begin with the definition of sampling
the Bureau provided to Congress in connection with the year 2000
census:
"In our common experience, 'sampling' occurs whenever the
information on a portion of a population is used to infer
information on the population as a whole[,] ... [although] [a]mong
professional statisticians, the term 'sample' is reserved for
instances when the selection of the smaller population is based on
the methodology of their science." Report to Congress-The Plan for
Census 2000, p. 23 (revised and reissued Aug. 1997).
Under this definition, the Bureau's use of imputation was a form
of sampling. The Bureau used a predefined, deterministic method to
select a portion of the population and then used that portion of
the population to estimate unknown information about the overall
population. The Bureau's imputation process first selected a group
of "donor" addresses, one for each address that had not been
successfully enumerated. This donor group was a subset of the
overall population. Indeed, the donor group was actually a subset
of a subset of the population because it was selected from
only those addresses that had not returned an initial question-
483
naire but were successfully enumerated through other means. This
highlights the Bureau's reliance on a selected portion of collected
data.
Next, the Bureau used the population of the donor group as a
direct estimate of the number of people who had not been
successfully enumerated. This estimate related to the "population
as a whole" because it was an estimate of the overall number of
people in the population who had not responded (or had not provided
a consistent response, see
ante, at 457) to the Bureau's
survey efforts. See,
e. g., F. Yates, Sampling
Methods for Censuses and Surveys 64, 130 (2d rev. ed. 1953)
(describing the use of sampling to estimate survey nonresponse);
ante, at 471 (describing the sampling at issue in
House
of Representatives as one for estimating nonresponse). Because
the imputation process selected a portion of the population to
estimate the number of people who had not been successfully
enumerated, the process constituted a form of sampling.
To counter this conclusion, the majority contends that the
Bureau's use of imputation differs from sampling in several
different ways. First, the majority argues that the Bureau's use of
imputation differs quantitatively from other forms of sampling,
suggesting that estimating nonresponse is not sampling when the
amount of nonresponse is very small. See
ante, at 471
(contrasting the use of sampling to estimate a 10% level of
nonresponse with the use of imputation to estimate a 0.4% level of
nonresponse). But the majority provides no statistical basis to
suggest that sampling is confined to "large" estimates. Moreover,
we have already decided that the
extent of the Bureau's
reliance on sampling is irrelevant when we held that § 195
prohibits sampling for apportionment purposes regardless of whether
it is used as a "'substitute'" for
or "'supplement'" to a
traditional enumeration.
House of Representatives, supra, at
342.
Indeed, the majority more generally acknowledges that the
Bureau's reliance on imputation may be distinguishable
484
Opinion of O'CONNOR, J.
only in degree from other forms of sampling. See
ante, at
471 (stating that the sampling at issue in
House of
Representatives differs "in degree if not in kind" from the
imputation at issue here). But the majority provides no statistical
basis for claiming a difference of degree matters to the question
of what constitutes sampling, nor does it explain how a meaningful
line between sampling and nonsampling could be drawn on such a
basis.
Second, the majority contends that imputation is not sampling
because the sample selection method used by the Bureau does not
look like "typica[l],"
ante, at 467, selection methods in
terms of
when or
how the relevant sample is selected.
With respect to when a sample is selected, the majority contends
that imputation is not sampling because it occurs after all data
have been collected. See
ante, at 466. This presumes that
one cannot sample from already-collected data. But sampling from
collected data is a recognized form of sampling, even when the
collected data result from an attempt to survey the entire
population. See Yates,
supra, at 128.
With respect to
how a sample is selected, the majority
argues that imputation does not look like methods employed "to find
a subset that will resemble a whole through the use of artificial,
random selection processes."
Ante, at 467. But the Bureau's
"nearest neighbor" imputation process is just as artificial as any
other form of nonrandom selection, and it is beyond dispute that
nonrandom selection methodsincluding those that produce
nonrepresentative samplesmay be used for sampling. See,
e.
g., W. Hendricks, Mathematical Theory of Sampling 239-241
(1956); P. Sukhatme, Sampling Theory of Surveys with Applications
10 (1954); F. Stephan, History of the Uses of Modern Sampling
Procedures, 43 J. Am. Statistical Assn. 12, 21 (1948) (all
indicating that nonrandom selection methods may be used for
sampling); see also Yates,
supra, at 17; R. Jessen,
Statistical Survey Techniques 16 (1978); W. Deming, Sample Design
in
485
Business Research 32 (1960) (together indicating that the
selection of nonrepresentative or "biased" samples may be
permissible, preferred, or even deliberate). Finally, even if
random and unbiased selection methods were assumed to be more
accurate than other methods of sampling, it would make little sense
to construe § 195 as prohibiting only the most accurate forms of
sampling.
Third, the majority contends that imputation is not sampling
because the Bureau never meant to engage in sampling. Along these
lines, the majority stresses that the Bureau's "overall approach to
the counting problem,"
ante, at 466, did not reflect a
"deliberate decision,"
ante, at 471, to engage in sampling.
Instead, according to the majority, the Bureau's "immediate
objective was the filling in of missing data," in an effort to
ascertain population information on "individual" units, not
"extrapolating the characteristics of the 'donor' units to an
entire population."
Ante, at 467.
The majority provides no statistical basis for defining sampling
in terms of intent or immediate objectives, however, and to do so
would allow the Bureau to engage in any form of sampling so long as
it was characterized as something else or appeared to serve some
nonsampling objective. But that would render hollow the statutory
prohibition on sampling for apportionment purposes. The majority
allows this to happen, however, by focusing on the Bureau's
"immediate objective" of filling in missing data, which overlooks
the fact that the Bureau estimated nonresponse using a selected
subset of the population and imputation was simply a means to that
end.
Fourth, the majority contends that some definitions of sampling,
if viewed broadly, contain no limiting principle and thus might
encompass even "the mental process of inference."
Ante, at
470. But recognizing the Bureau's use of imputation as a form of
sampling does not require that sampling be read so broadly.
Instead, sampling under § 195 can be confined to situations where a
selected subset of the popu-
486
Opinion of O'CONNOR, J.
lation has been directly surveyed on a particular attribute and
then that subset is used to estimate population characteristics of
that
same attribute. Such a limitation is neither ill
defined nor all encompassing.
Apart from the above arguments, which primarily relate to the
statistical characterization of imputation, the majority makes
several additional arguments. It contends that Congress' use of the
term "sampling" should be read narrowly, limited to what "the
Secretary called 'sampling,' at the time."
Ante, at 469. But
the statutory prohibition was not written in terms of what the
Secretary viewed as sampling, nor is there any reason to think
Congress intended the term "sampling" to be read narrowly as a
tight restriction on the Bureau's ability to gather data for
nonapportionment purposes. Rather, the "purpose ... [was] to permit
the utilization of
something less than a complete
enumeration, as implied by the word 'census,' ... except with
respect to apportionment." H. R. Rep. No. 1043, 85th Cong., 1st
Sess., 10 (1957) (emphasis added). This suggests "sampling" was
meant in a broad rather than narrow sense.
Moreover, because the Bureau's authorization to use sampling for
nonapportionment purposes was simultaneously a prohibition on the
use of sampling for apportionment purposes, it makes even less
sense to construe "sampling" narrowly
when viewed as a
prohibition given the broader historical context in which § 195
marked "the first departure from the requirement that the
enumerators collect all census information through personal visits
to every household in the Nation."
House of Representatives,
525 U. S., at 336. Finally, even if one were willing to assume that
the statutory prohibition should not be read to cover statistical
techniques the Bureau had used for apportionment purposes prior to
1957, that still would not justify the use of imputation since the
Bureau had never before added people to the apportionment count
using that process. See Hogan ~~ 39, 41, App. 266-268.
487
The majority also notes the possibility of
Chevron
deference with respect to the scope of the term "sampling."
Ante, at 472 (citing
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845
(1984)). But the majority ultimately does not rely on this form of
deference,
ante, at 472, nor does it indicate where the
Bureau has provided an interpretation of § 195 that would have the
"force of law" on this issue. See
Christensen v.
Harris
County, 529 U. S.
576, 587 (2000) (explaining that agency "[i]nterpretations ...
which lack the force of law ... do not warrant Chevron-style
deference"). Additionally, based on the reasons provided by JUSTICE
THOMAS' partial dissent, I would find that the Bureau's use of
imputation to calculate state population totals for apportionment
purposes at least raises a difficult constitutional question. This
provides a basis to construe § 195 as precluding imputation,
regardless of whether the Bureau is entitled to any form of
deference. See
Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building &
Constr. Trades
Council, 485 U.
S. 568, 574-575 (1988).
The majority downplays the idea that imputation could be used to
manipulate census results, arguing that "manipulation would seem
difficult to arrange" in light of the "uncertainties as to which
States imputation might favor."
Ante, at 472. But in every
census where imputation would alter the resulting apportionment,
the mere decision to impute or not to impute is a source of
possible manipulation. While that might be averted if the Bureau
were required to use imputation, I do not read the majority's
opinion to demand that. Moreover, in the past, we have given
deference to the Secretary's decision
not to statistically
adjust the census, even when a final decision on that matter was
not made until after the census was completed. See
Wisconsin
v.
City of New York, 517 U. S. 1, 10-11,20-24
(1996).
Finally, the majority suggests that imputation is somehow
"better" than making no statistical adjustment at all.
Ante,
at 470. But no party has cited a study suggesting that
488
Opinion of THOMAS, J.
imputation improves distributive accuracy, and the Bureau admits
that numeric rather than distributive accuracy "drove the process."
Hogan ~ 34, App. 264; see also
id., at ~~ 34-35, App. 265
(acknowledging that it may be "impossible to know
a priori
the effects of a particular census operation on distributive
accuracy" and that "[i]n designing Census 2000, the Census Bureau
did not reject operations that would improve numeric accuracy ...
even if these operations might affect distributive accuracy
negatively" (emphasis added)). I therefore would not assume
that imputation necessarily resulted in a "better" census given the
recognized importance of distributive accuracy in assessing overall
accuracy. See
Wisconsin, supra, at 20 (stating that "a
preference for distributive accuracy (even at the expense of some
numerical accuracy) would seem to follow from the constitutional
purpose of the census, viz., to determine the apportionment of the
Representatives among the States").
III
Because the Bureau used "hot-deck imputation" to make the same
statistical inferences it could not make through more transparent
reliance on sampling, I would find that the Bureau's use of
imputation was a form of sampling and thus was prohibited by § 195.
I therefore respectfully dissent from Part III of the majority's
opinion and have no occasion to decide whether the Constitution
prohibits imputation, which the majority addresses in Part IV. For
these reasons, I would reverse the judgment of the District
Court.
JUSTICE THOMAS, with whom JUSTICE KENNEDY joins, concurring in
part and dissenting in part.
Conducting a census to count over 200 million people is an
enormously complicated and difficult undertaking. To facilitate the
task, statisticians have created various methods to supplement the
door-to-door inquiries associated with the "actual Enumeration" and
"counting [of] the whole number
489
of persons in each State" required by the Constitution. Art. I,
§ 2, cl. 3; Arndt. 14, § 2. Today we consider whether 13 U. S. C. §
195 prohibits the use of one of these methodshot-deck
imputation-for apportionment purposes, and if not, whether its use
is permissible under the Constitution. In accordance with our
decision in
Franklin v.
Massachusetts,
505 U. S. 788 (1992), I
believe that we have jurisdiction to consider these questions
concerning the year 2000 census. For essentially the same reasons
given by the Court, I agree that imputation is not prohibited by 13
U. S. C. § 195.
I cannot agree, however, with the Court's resolution of the
constitutional question. The Constitution apportions power among
the States based on their respective populations; consequently,
changes in population shift the balance of power among them.
Mindful of the importance of calculating the population, the
Framers chose their language with precision, requiring an "actual
Enumeration," U. S. Const., Art. I, § 2, cl. 3. They opted for this
language even though they were well aware that estimation methods
and inferences could be used to calculate population. If the
language of the Census Clause leaves any room for doubt, the
historical context, debates accompanying ratification, and
subsequent early Census Acts confirm that the use of estimation
techniques-such as "hot-deck imputation," sampling, and the like-do
not comply with the Constitution.
I
The use of the statistical technique known as hot-deck
imputation increased the final year 2000 census count by 1,172,144
people, representing 0.42 percent of the Nation's total population.
U. S. Dept. of Commerce, Economics and Statistics Admin., Census
2000 Informational Memorandum No. 110, App. 443. Utilization of
this method in the year 2000 census had important consequences for
two States in particular, North Carolina and Utah: North Carolina
gained
490
Opinion of THOMAS, J.
one Representative and Utah lost one Representative as a result
of hot-deck imputation. See
ante, at 458.
While the Court has aptly described the process of "hotdeck
imputation," several facts about this method are worth noting at
the outset. The Census Bureau refers to hot-deck imputation
procedures as "estimation." U. S. Dept. of Commerce, Decennial
Statistical Studies Division, Census 2000 Procedures and
Operations, Memorandum Series Q-34 (hereinafter Memorandum Series),
App. 153, 156. It used this form of "estimation" for three
different categories of units: (1) those units classified as
occupied but with no population count (household size imputation),
(2) those units that are unclassified (either occupied or vacant)
but that "we know exist" (occupancy imputation), and (3) those
units that are unclassified and are "either occupied, vacant, or
delete" (status imputation). Memorandum Series B-17,
id., at
194195. The "status imputation" category is the most troubling,
because, as explained by the Department of Commerce, it refers to
households "for which we know nothing,"
id., at 195, and
therefore which may not even exist.
The Census Bureau explains that "[f]or estimation purposes, six
categories are defined" because each of the preceding types of
units are divided into two groups: single unit addresses and
multiunit addresses.
Ibid. The Bureau calls the six
categories "estimation categories," and permits only certain types
of units for each category to be used as "donors."
Ibid. The
Bureau then uses these donor units, for which data has already been
obtained, to impute characteristics to a neighboring unit that
falls within the above categories.
Whether this "estimation" technique passes constitutional muster
depends on an evaluation of the language of the Census Clause and
its original understanding.1
1 We gave some consideration to a similar question in Department
of Commerce v. United States House of Representatives,
525 U. S. 316 (1999),
491
II
The Framers constitutionalized the requirement that a census be
conducted every decade. U. S. Const., Art. I, § 2, cl. 3. In so
doing, they chose their words with precision. Chief Justice
Marshall instructed that "[a]s men whose intentions require no
concealment, generally employ the words which most directly and
aptly express the ideas they intend to convey, the enlightened
patriots who framed our constitution, and the people who adopted
it, must be understood to have employed words in their natural
sense, and to have intended what they have said."
Gibbons v.
Ogden, 9 Wheat. 1, 188 (1824). We should be guided,
therefore, by the Census Clause's "original meaning, for '[t]he
Constitution is a written instrument. As such its meaning does not
alter. That which it meant when adopted, it means now.'"
McIntyre v.
Ohio Elections Comm'n, 514 U. S. 334, 359 (1995)
(THOMAS, J., concurring in judgment) (quoting
South Carolina
v.
United States, 199 U. S. 437, 448
(1905)).
Article I, § 2, cl. 3, as modified by § 2 of the Fourteenth
Amendment, provides: "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." The Census Clause specifies that this "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
when considering a challenge to the Department of Commerce's
decision to use statistical sampling in the decennial census for
apportionment purposes. There was no need, however, to decide the
constitutional question in that case because we held that 13 U. S.
C. § 195 "prohibits the use of sampling in calculating the
population for purposes of apportionment." 525 U. S., at 340. Both
JUSTICE STEVENS and JUSTICE SCALIA, however, weighed in on the
matter. See
id., at 362-364 (STEVENS, J., dissenting);
id., at 346-349 (SCALIA, J., concurring in part).
492
Opinion of THOMAS, J.
Years, in such Manner as they shall by Law direct." Art. I, § 2,
cl. 3.2
The Constitution describes the process both as "counting the
whole numbers of persons" and as an "actual Enumeration."
Dictionary definitions contemporaneous with the ratification of the
Constitution inform our understanding. "Actual" was defined at the
time of the founding as "really done:
In
Metaphysics, that is actual, or in act, which has a
real being or existence, and is opposite to
Potential." N.
Bailey, An Universal Etymological English Dictionary (26th ed.
1789); see also T. Sheridan, A Complete Dictionary of the English
Language (6th ed. 1796) (defining "actual" as "[r]eally in act, not
merely potential; in act, not purely in speculation"). Sheridan
defined "[e]numeration" as "[t]he act of numbering or counting
over" and "[t]o enumerate" as "to reckon up singly; to count over
distinctly." See also 1 S. Johnson, A Dictionary of the English
Language 658 (4th rev. ed. 1773) (defining "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"). "Count" was defined as "to number; to tell."
Id., at 435.3 See also 1 N. Webster, An American Dictionary
of the English Language (1828) ("To number; to tell or name one by
one, or by small numbers, for ascertaining the whole number of
units in a collection").
As JUSTICE SCALIA explained in
Department of Commerce v.
United States House of Representatives, 525 U. S. 316, 346-347
(1999) (opinion concurring in part), dictionary def-
2 The "actual Enumeration" was originally to be used both for
apportionment of Members of the House of Representatives and for
direct taxation. Adoption of the Sixteenth Amendment, however,
removed the requirement of apportionment for direct taxes. U. S.
Const., Arndt. 16 ("The Congress shall have power to lay and
collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard to any
census or enumeration").
3 The word "count" did not appear in the original version of
Art. I, § 2, cl. 3. It did, however, appear in the definitions of
"enumeration."
493
initions contempOraneous with the founding "demonstrate that an
'enumeration' requires an actual counting, and not just an
estimation of number." "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."
Id., at 347.4 Nor can it be said
that these definitions encompass estimates by imputation.5
In addition, at the time of the founding, "conjecture" and
"estimation" were often contrasted with the actual enumeration that
was to take place pursuant to the Census Clause. During debate over
the first Census Act, James Madison made such a distinction, noting
that the census would provide an "exact number of every division"
as compared to "assertions and conjectures." 2 The Founders'
Constitution 139 (P. Kurland & R. Lerner eds. 1987)
(hereinafter Founders' Constitution). Similarly, when describing a
document containing the results of the first census, Thomas
Jefferson noted the difference between the returns that were
"actual" and those that were added in red ink by "conjectur[e]." 8
The Writings of Thomas Jefferson 229 (A. Lipscomb ed. 1903). George
Mason, at one point, observed that he "doubted much whether the
conjectural rule which was
4 The parenthetical reflects the fact that JUSTICE SCALIA was
construing a statutory provision so as to avoid serious
constitutional doubt. See
House of Representatives, supra,
at 346 (opinion concurring in part).
5 Moreover, while the Court states that the Constitution "uses a
general word, 'enumeration,' that refers to a counting process
without describing the count's methodological details,"
ante, at 474, the meaning of "enumeration" has not
materially changed since the time of the founding. To "enumerate"
is now defined as "to ascertain the number of: COUNT," and also "to
specify one after another: LIST." See Webster's Ninth New
Collegiate Dictionary 416 (1988). "Enumeration" meant at the time
of the founding, as it does now, to count individually and
specifically and simply does not admit of various counting
methodologies.
494
Opinion of THOMAS, J.
to precede the census, would be as just, as it would be rendered
by an actual census." Founders' Constitution 108.6
Historians and commentators after the founding also
distinguished actual enumerations from conjectures, demonstrating
that there was a common understanding of these terms. For instance,
an 1835 book about statistics in the United States explains that
"[t]he number of inhabitants in this country, prior to its
separation from Great Britain, rests principally on conjectural
estimates." T. Pitkin, A Statistical View of the Commerce of the
United States of America 582 (hereinafter Pitkin); see also Brief
for Appellants 40-41. Prior to the revolution, when the British
Board of Trade called upon the Governors to provide an account of
their populations, some Colonies made "actual enumerations," such
as Connecticut in 1756 and in 1774, while others made estimates
"founded upon the number of taxable polls, or the number of the
militia." Pitkin 582-583. A widely cited 1800 article published in
England by John Rickman after the first United States census also
used the term "actual enumeration" several times to describe the
count that "must always be under the real number," noting at the
same time that this "method (fraught with trouble and expence)
attempts an accuracy not necessary, or indeed attainable, in a
fluctuating subject." John Rickman's Article on the Desirability of
Taking A Census, reprinted in D. Glass, Numbering the People 111
(1973) (hereinafter Glass). See also Brief for Appellants 47.
Discussion of an "actual enumeration" can be contrasted to his
subsequent proposal for England, which included estimation methods
resembling both sampling and imputation since Rickman deemed it
appropriate to make "general inferences"
6 By "conjectural rule," we can presume that he meant to refer
to the population estimates used by the Constitutional Convention
to determine the number of Representatives of Congress from each
State prior to the first census. See H. Alterman, Counting People:
The Census in History 188 (1969) (hereinafter Alterman).
495
from modern registers to make up for deficient registers. Glass
111-112.
To be sure, the Census Clause enables Congress to prescribe the
"Manner" in which the enumeration is taken. The Court suggests that
"enumeration" implies the breadth of Congress' methodological
authority, rather than its constraints. See
ante, at 474.
But while Congress may dictate the manner in which the census is
conducted,7 it does not have unbridled discretion. For the purposes
of apportionment, it must follow the Constitution's command of an
"actual Enumeration." Madison made this point clear during debate
of the first Census Act when he noted the difficulties "attendant
on the taking the census, in the way required by the constitution,
and which we are obliged to perform." Founders' Constitution
139.
The Court also places undue weight on the penultimate version of
the Clause, the iteration that was given to the Committee of Detail
and Committee of Style. See
ante, at 474-475. Whatever may
be said of the earlier version, the Court rejected a similar
reliance in
Nixon v.
United States, 506 U. S. 224, 231
(1993), because "we must presume that the Committee's
reorganization or rephrasing accurately captured what the Framers
meant in their unadorned lan-
7 As described
infra, at 503-504, Congress has
implemented this power in a variety of ways, such as by authorizing
marshals to "cause the number of the inhabitants to be taken" and
to appoint as many assistants as necessary, establishing the
timeframe within which the census is to be completed, and setting
methods of payment for assistants. Act of Mar. 1, 1790, § 1,
reprinted in C. Wright, History and Growth of the United States
Census (prepared for the Senate Committee on the Census), S. Doc.
No. 194, 56th Cong., 1st Sess., 925 (1900) (hereinafter Wright). In
recent years, the Bureau through its delegated power has adopted a
number of measures to reduce error, including "an extensive
advertising campaign, a more easily completed census questionnaire,
and increased use of automation, which among other things
facilitated the development of accurate maps and geographic files
for the 1990 census."
Wisconsin v.
City of New York,
517 U. S. 1, 8
(1996).
496
Opinion of THOMAS, J.
guage." Carrying the majority's "argument to its logical
conclusion would constrain us to say that the
second to last
draft would govern in every instance where the Committee of
Style added an arguably substantive word. Such a result is at odds
with the fact that the Convention passed the Committee's version,
and with the well-established rule that the plain language of the
enacted text is the best indicator of intent."
Id., at
231-232. Rather than rely on the draft, I focus on the words of the
adopted Constitution.
III
The original understanding can be discerned not only by
examining the text but also by considering the "meaning and
intention of the convention which framed and proposed it for
adoption and ratification to the conventions of the people of and
in the several states."
Rhode Island v.
Massachusetts, 12 Pet. 657, 721 (1838). The history of
census taking in the Colonies and elsewhere, discussions
surrounding the ratification of the Census Clause, and the early
statutes implementing the Clause provide insight into its
meaning.
A
Census taking is an age-old practice. With only a few
exceptions, however, before the 19th century most countries
conducted partial enumerations that were supplemented by estimates
of the unenumerated portion of the population. Wolfe, Population
Censuses Before 1790, 27 J. Am. Statistical Assn. 357 (1932)
(hereinafter Wolfe). The contentious history of censuses, partial
or otherwise, has long influenced decisions about whether to
undertake them. See
id., at 358 ("The Biblical account of
the Lord's wrath at the taking of [the 'census' taken by David]
remained an argument against census taking even as late as the
eighteenth century").8 It
8 This traditional religious objection to census taking was
based on the "sin of David, who brought a plague upon Israel by
'numbering' the people (2 Sam. 24:1-25, 1 Chron. 21:1-30)." P.
Cohen, A Calculating People 256,
497
is a history rampant with manipulation for political and fiscal
gains. See generally
id., at 359-370; Alterman 43, 54; Glass
19-20.
At times, political resistance to censuses precluded their
taking. Suspicion of government and opposition on religious
grounds, for example, prevented a general census in France during
the 18th century. Wolfe 367; see also Alterman 49. And in England,
while "estimates and conjectures" as to changes in the population
were frequently made in the 18th century, a 1753 proposal to
provide for a general enumeration was rejected by Parliament,
because it was thought that a census might reveal England's
"weakness to her enemies," and that it might be followed by "some
public misfortune or epidemical distemper." Wolfe 368 (internal
quotation marks omitted).9
England was in part responsible for the first colonial censuses,
as the British Board of Trade required population counts so that it
could properly administer the Colonies. D. Halacy, Census: 190
Years of Counting America 29 (1980) (hereinafter Halacy). The
Colonies had their own encounters with various population counting
methods. Prior to 1790, there were at least 38 population counts
taken in the Colonies. See Alterman 165. According to one
historian, however, there was "reason to suspect, [that the
censuses were] often intentionally misleading, when officials, on
the one hand of the boastful, or on the other hand of the timid
type, thought to serve some interest by exaggeration or by
understatement." F. Dexter, Estimates of Population in the
n. 24 (1982) (hereinafter Cohen). Some colonial governors
apparently blamed their inability to administer censuses on this
fear, although it is unclear to what extent this actually reflected
public sentiment.
Ibid.
9 The 1753 bill contemplated by the British Parliament received
a great deal of publicity and attention. Glass 17. The proposal
provided that overseers would "go from house to house in their
parishes, recording the numbers of persons actually dwelling in
each house during the twelve preceeding hours."
Id., at
18.
498
Opinion of THOMAS, J.
American Colonies, in Proceedings of the American Antiquarian
Society 22 (1887) (hereinafter Dexter).
Many Americans resisted census-taking efforts. According to an
1887 inventory of the Colonies' attempts at population estimates,
"Connecticut pursued in her colonial history the policy of hiding
her strength in quietness; so far as might not be inconsistent with
general truthfulness, she preferred to make no exhibit of her
actual condition."
Id., at 31.10 A 1712 census in New York
"met with so much opposition, from superstitious fear of its
breeding sickness, that only partial returns were obtained."
Id., at 34 (citations omitted). See also Century 3. In New
Jersey, the population counts of the mid-18th century apparently
comprised "such guesses as the Royal Governors could make, for the
satisfaction of their superiors." Dexter 36. In 1766, Benjamin
Franklin "supposed that there might be about 160,000 whites in
Pennsylvania ... but he did not profess to speak with accuracy, and
was under a bias which led him, perhaps unconsciously, into
cautious understatement."
Id., at 38. Georgia was apparently
"singularly misrepresented, being overestimated in the Federal
Convention of 1787 at nearly half as much again as her real amount
of population, while the rest of the colonies were underestimated
considerably,the total of the Convention's figures falling short of
the reality by more than half a million."
Id., at 49.
The Framers also had experience with various statistical
techniques. For example, Thomas Jefferson, who as Secretary of
State would later be charged with running the first official
national census, had a great interest in mathematics
10 See also Dept. of Commerce and Labor, A Century of Population
Growth: From the First Census of the United States to the Twelfth,
17901900, p. 4 (1909) (hereinafter Century) ("The people of
Massachusetts and Connecticut manifested considerable opposition to
census taking, seeing no advantage in it to themselves, and fearing
that in some way the information obtained would be used by the
British authorities to their disadvantage").
499
and numbers. See Halacy 33; Cohen 112-113. In 1782, Jefferson
estimated Virginia's population and his calculation exhibited an
awareness that statistical estimation techniques could be used to
calculate population. Virginia had been unable to manage a full
census for the Continental Congress; eight counties had failed to
turn in any census data. J. Cassedy, Demography in Early America:
Beginnings of the Statistical Mind, 1600-1800, p. 228 (1969)
(hereinafter Cassedy). Jefferson had to extrapolate from incomplete
tax returns, militia muster rolls, and other data. Nonetheless, he
produced an estimate of 567,614.
Ibid. First, he listed
certain known facts, including data about Virginia's population in
all but eight counties. In the eight counties for which information
was not available, he knew that there had been 3,161 men in the
militia in 1779 and 1780. He then listed five assumptions, such as
"[t]he number of people under 16 years of age was equal to the
number 16 years and over," on which he based his final estimate.
Alterman 168-169.
Another elaborate effort at population calculation was
undertaken by the Governor of Massachusetts in 1763, who estimated
his Colony's population in three ways. First, he made an estimate
from a return to the General Court of "'rateable polls'" of males
over 16 eligible to vote. He added an estimate of males who were
too poor to pay the poll tax, and then added similar numbers of
females. He made another estimate by multiplying the militia
returns by four. He calculated a third estimate from the number of
houses. Since many believed that houses averaged five occupants and
others "preferred five and a half," he used both numbers. After
giving the British Board of Trade several numbers, however, he
concluded that the "actual population was none of these figures"
and the population was in fact higher. Cassedy 73. In any event,
"[s]ince all of the returns used in the estimates had been made for
tax purposes, it was understood that they would be well on the low
side."
Ibid.
500
Opinion of THOMAS, J.
The Framers were quite familiar not only with various
census-taking methods but also with impediments to their successful
completion. The Continental Congress had already used population
estimates to make decisions about taxation, and such efforts were
met with resistance. In 1775, the Continental Congress had
ascertained population estimates for the Colonies in order to
apportion the taxes and costs of the Revolutionary War. Pitkin 583.
See also Halacy 30-31 ("Debts incurred in the Revolutionary War
hastened the ordering of a standard form of census. A census of the
colonies had been ordered, but some of them never complied, and the
rest did so in different ways"). New Hampshire in particular
complained that the estimate of its population for the purposes of
calculating Revolutionary War costs was too high. Pitkin 583. It
had "caused an actual enumeration to be ... made, by which it
appeared, that the number of her inhabitants" was 20,000 lower than
the estimate.
Ibid. See also Brief for Appellants 47. New
Hampshire petitioned the Continental Congress to change the amount
of taxation. New Hampshire's effort was in vain, because Congress
"refused to alter her proportion of her taxes on that account."
Ibid. See also 10 New Hampshire Provincial and State Papers
580 (reprint 1973) ("[T]he [proportion of taxes assigned New
Hampshire by Congress in 1781] is too high by a very considerable
sum, that by our numbers which were taken in the year 1775 by the
selectmen of the several Towns & Parishes & Return made
under Oath ... this proportion will appear much too large").
B
The Framers knew that the calculation of populations could be
and often were skewed for political or financial purposes. Debate
about apportionment and the census consequently focused for the
most part on creating a standard that would limit political
chicanery. While the Framers did not extensively discuss the method
of census-taking, many
501
expressed the desire to bind or "shackle" the legislature so
that neither future Congresses nor the States would be able to let
their biases influence the manner of apportionment. See Founders'
Constitution 103-104. As James Madison explained:
"In one respect, the establishment of a common measure for
representation and taxation will have a very salutary effect. As
the accuracy of the census to be obtained by the Congress will
necessarily depend, in a considerable degree, on the disposition,
if not on the cooperation of the States, it is of great importance
that the States should feel as little bias as possible to swell or
to reduce the amount of their numbers. Were their share of
representation alone to be governed by this rule, they would have
an interest in exaggerating their inhabitants. Were the rule to
decide their share of taxation alone, a contrary temptation would
prevail. By extending the rule to both objects, the States will
have opposite interests which will control and balance each other
and produce the requisite impartiality." The Federalist No. 54, pp.
340-341 (C. Rossiter ed. 1961).
Alexander Hamilton likewise noted, in a discussion about the
proportion of taxes that "[a]n actual census or enumeration of the
people must furnish the rule, a circumstance which effectually
shuts the door to partiality or oppression."
Id., No. 36, at
220.
Discussion revealed a keen awareness that absent some fixed
standard, the numbers were bound to be subject to political
manipulation. While Gouverneor Morris appears to have been one of
the strongest opponents of "fettering the Legislature too much," he
at least recognized that if the mode for taking the census was
"unfixt the Legislature may use such a mode as will defeat the
object: and perpetuate the inequality." Founders' Constitution 102.
He believed, however, that "[i]f we can't agree on a rule that will
be just
502
Opinion of THOMAS, J.
at this time, how can we expect to find one that will be just in
all times to come."
Id., at 104. Edmund Randolph, on the
other hand, noted that if dangers suggested by Gouverneor Morris
were "real, of advantage being taken of the Legislature in pressing
moments, it was an additional reason, for tying their hands in such
a manner that they could not sacrifice their trust to momentary
considerations."
Id., at 103.
During debate of a proposal "to take a periodical census,"
George Mason noted that he "did not object to the conjectural ratio
which was to prevail in the outset" for apportionment, prior to the
census, but "considered a Revision from time to time according to
some permanent & precise standard as essential to ... fair
representation."
Id., at 102-103. "From the nature of man,"
Mason observed, "we may be sure, that those who have power in their
hands will not give it up while they can retain it. On the Contrary
we know they will always when they can rather increase it."
Id., at 103.
Some who initially believed that the Congress should have
discretion changed their minds after listening to the arguments by
Randolph, Mason, and others. Roger Sherman, for example, "was at
first for leaving the matter wholly to the discretion of the
Legislature; but he had been convinced by the observations of (Mr.
Randolph & Mr. Mason) that the
periods & the
rule of revising the Representation ought to be fixt by the
Constitution."
Id., at 104. Nathaniel Ghorum perceptively
noted that "[i]f the Convention who are comparatively so little
biassed by local views are so much perplexed, How can it be
expected that the Legislature hereafter under the full biass of
those views, will be able to settle a standard."
Ibid. On
the other hand, Reid continued to believe that "the Legislature
ought not to be too much shackled."
Ibid. He also thought
that "[it] would make the Constitution like Religious Creeds,
embarrassing to those bound to conform to them & more likely to
produce dissatisfaction and Scism, than harmony and union."
Ibid.
503
While debate continued, with various iterations of the Clause
considered, it was clear that the principle concern was that the
Constitution establish a standard resistant to manipulation. As
Justice Story later observed, "apportion[ing] representatives among
the states according to their relative numbers ... had the
recommendation of great simplicity and uniformity in its operation,
of being generally acceptable to the people, and of being less
liable to fraud and evasion, than any other, which could be
devised." Commentaries on the Constitution of the United States §
327, p. 238 (R. Rotunda & J. Nowak eds. 1987).
C
We have long relied on contemporaneous constructions of the
Constitution when interpreting its provisions, for "early
congressional enactments 'provid[e] "contemporaneous and weighty
evidence" of the Constitution's meaning.'"
Printz v.
United States, 521 U. S. 898, 905 (1997)
(citations omitted). See also
Myers v.
United States,
272 U. S. 52, 175
(1926) ("This Court has repeatedly laid down the principle that a
contemporaneous legislative exposition of the Constitution when the
founders of our Government and framers of our Constitution were
actively participating in public affairs, acquiesced in for a long
term of years, fixes the construction to be given its provisions"
(collecting cases)). Accordingly, I turn next to the early Census
Acts, which provide significant additional evidence that the
Framers meant what they said in adopting the words "actual
Enumeration."
From the first census, Congress directed that the census be
taken by actually counting the people.
House of
Representatives, 525 U. S., at 335. Congress enacted a series
of requirements for how to accomplish the counting; none mention
the use of sampling or any other statistical technique or method of
estimation. Rather, the first Census Act described, among other
things, how many census takers (or deputies) could be used, their
pay, the consequences of falsifying papers, what address to
attribute to persons who had
504
Opinion of THOMAS, J.
more than one address, and how to count those who did not have
an address. Congress ordered the first census to begin on August 2,
1790, and to be completed within nine months. Century 45. Marshals
and their assistants were required to "take an oath or affirmation"
to "'truly cause to be made, a just and perfect enumeration and
description of all persons resident within [their] district[s].'"
Act of Mar. 1, 1790, § 1, reprinted in Wright 925.
The Act required marshals to aggregate the numbers, but there
was no provision allowing the marshals to estimate or extrapolate
in order to fill in missing data. The Act provided that the
"assistants" could, for a particular family, use data given by one
member of that family. But the information could be taken only from
persons over age 16, and these persons were required to give the
assistant "a true account." § 6,
id., at 926. No other
method of counting appears to have been permissible. And failure to
make a return or falsifying a return triggered heavy monetary
penalties and the threat of prosecution. §§ 2, 3,
ibid. In
1810, Congress added 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.'"
House of Representatives,
supra, at 335 (citing Act of Mar. 26, 1810, § 1, 2 Stat.
565-566). The provision requiring census takers to visit personally
each home appeared in statutes governing the next 14 censuses. See
525 U. S., at 335-336, and n. 5 (surveying Census Acts).
There was widespread awareness that the early censuses were not
entirely accurate. The enumerators confronted many problems,
including confusion regarding which houses belonged to which
districts, danger on the roads, the unwillingness of citizens to
give the required information, superstition, and a fear from some
that the census was connected to taxation. Century 45-46. For
example, in a 1791 letter from George Washington to Gouverneor
Morris dated before the first census was complete, Washington noted
the differ-
505
ence between the "enumeration" and an estimate he had previously
given, and acknowledged that the official census would not be
accurate:
"In one of my letters to you the account which I gave of the
number of inhabitants which would probably be found in the United
States on enumeration, was too large. The estimate was then founded
on the ideas held out by the Gentlemen in Congress of the
population of their several States, each of whom (as was very
natural) looking thro' a magnifying glass would speak of the
greatest extent, to which there was any probability of their
numbers reaching. Returns of the Census have already been made from
several of the States and a tolerably just estimate has been formed
now in others, by which it appears that we shall hardly reach four
millions; but one thing is certain our real numbers will
exceed, greatly, the official returns of them." 31 Writings of
George Washington 329 (J. Fitzpatrick ed. 1931).
Apparently concerned about the effect that the results of the
first census would have on foreign opinion, Jefferson, in a 1791
letter sending the results abroad, explained: "I enclose you a copy
of our census, which, so far as it is written in black ink, is
founded on actual returns, what is in red ink being conjectured,
but very near the truth. Making very small allowance for omissions,
which we know to have been very great, we may safely say we are
above four millions." 8 Writings of Thomas Jefferson, at 229. While
perhaps disappointed with the results of the census, he noted the
difference between the returns that were "actual" and those that
were added in red ink by "conjectur[eJ."
IbidY There is
11 It was later believed that the disappointment was "largely
due to the exaggerated estimates of colonial population." Wright
17. See also Alterman 205 ("Many census historians believe, as
Washington hinted ... that the disappointment was due to the
exaggerated hopes born of a newly won independence, as well as to
the unrealistic estimates of the colonial population").
506
Opinion of THOMAS, J.
no suggestion, however, that his additional "conjectures" were
used for apportionment. See T. Woolsey, The First Century of the
Republic 221 (1876); Alterman 205. "Despite its deficiencies, the
census provided the factual base about the American people which
officials and scholars needed." Cassedy 220. Thus, while the Court
asserts that there was a "strong constitutional interest in
accuracy,"
ante, at 478, the stronger suggestion is that the
Framers placed a higher value on preventing political
manipulation.
IV
The text, history, and a review of the original understanding of
the Census Clause confirm that an actual enumeration means an
actual count, without estimation. While more sophisticated
statistical techniques may be available today than at the time of
the founding, the Framers had a great deal of familiarity with
alternative methods of calculating population. They decided to
constitutionalize the arduous task of an actual enumeration. I am
persuaded that much like the earlier methods of estimation,
hot-deck imputation-a modern statistical technique that the Census
Bureau refers to as "estimation" -is not constitutionally
permissible.
In recent decades, decisions regarding whether, and what kind
of, imputation and other statistical methods should be utilized
have changed from administration to administration. Departing from
past practice, imputation was first used in the year 1960 census.
The Bureau has used some form of it in every decennial census since
then. Plaintiffs' Statement of Undisputed Facts, App. 44; Response
to Plaintiffs' Statement of Material Facts,
id., at 222. In
the year 1970 census, about 900,000 persons were imputed to the
apportionment count through household size and occupancy
imputation. The Census Bureau also used a form of estimation that
combined imputation and sampling. Declaration of Howard Hogan,
id., at 268-269 (hereinafter Hogan). In 1980, the use of
imputation shifted one seat in the House of Representa-
507
tives from Indiana to Florida,
id., at 46, 224, making
the year 2000 census at least the second time that its use has
changed apportionment.12
At the earliest, status imputation was used in the year 1990
census, although there is some dispute as to whether it was even
used then.
Id., at 45-46, n. 4; but see
id., at 223
(stating that "the 1990 imputation procedures continued the prior
practice of using household size imputation and occupancy
imputation but added status imputation"). Regardless, it apparently
had no impact on apportionment. See
id., at 45-46, n. 4. In
the year 1990 census, the Secretary specifically decided against
using a different form of estimation. The "Secretary's
administrative decision declining to make an adjustment observed
that '[t]he imputation scheme used ... [was] based on a series of
assumptions that are mostly guesswork.'" Brief for Federal
Petitioners in
Wisconsin v.
City of New York, O. T.
1995, Nos. 94-1614 etc., p. 8. The Secretary even noted that
"large-scale statistical adjustment of the census through [this
method] would 'abandon a two hundred year tradition of how we
actually count people,'" and that "statistical adjustment of the
1990 census might open the door to political tampering in the
future."
Wisconsin v.
City of New York, 517 U. S. 1, 10-12
(1996).
Though different in kind, our recent history of experimentation
with census-taking methods bears similarity to the various
preratification estimates and enumerations. While I would not
speculate about the Bureau's decisionmaking process, it is quite
evident that the Framers, aware that the use of any estimation left
the door open to political abuse, adopted the words "actual
Enumeration" to preclude the availability of methods that permit
political manipulation.
Additionally, hot-deck imputation is properly understood as an
estimation, which by definition cannot be an actual
12 The Bureau states it "no longer has data available to
determine whether count imputation affected apportionment in the
1960 or the 1970 Censuses." App. 224.
508
Opinion of THOMAS, J.
counting of persons. The Court contends that imputation does not
differ in principle from other traditional methods of counting,
such as questioning of "'neighbors, landlords, postal workers, or
other proxies'" about the number of inhabitants in a particular
place.
Ante, at 477. But that point is flawed in several
important respects. To begin with, from the first census, such
information was taken through an actual inquiry of a family member
who was over the age of 16. Act of Mar. 1, 1790, § 6, reprinted in
Wright 926. That household member was "obliged to render to such
assistant of the division, a true account, if required, to the best
of his or her knowledge, of all and every person belonging to such
family respectively ... on pain of forfeiting twenty dollars, to be
sued for and recovered by such assistant."
Ibid. Estimation
was not allowed and family members who were caught providing false
information were subject to fines.
Questioning neighbors was not permitted until 1880 and even then
census data could only be based on information provided by those
"living nearest to such place of abode." Act of Mar. 3, 1879, § 8,
id., at 937. Again, family members or agents of families
were required by law "to render a true account" and those who
"willfully fail[ed] or refuse[d]" were "guilty of a misdemeanor"
and required to "pay a sum not exceeding one hundred dollars." §
14,
id., at 938. That process is far different from a
computation where data about one "donor" house, that appears on
"Census Burea[u] records," Hogan, App. 255, compiled far away from
the actual residence, is used to estimate data about another. With
"status imputation," for example, the Census Bureau is willing to
impute data even though it categorizes these households as "Donees"
"for which we know nothing." Memorandum Series B-17,
id., at
195. While subsequent Acts may permit other forms of proxy, they do
not assist with our analysis of the original understanding. Nor are
we called upon to judge their constitutionality here. Because
hot-deck imputation is an estimation procedure that includes
persons not
509
"actually" counted, its use to adjust the census for
apportionment purposes runs afoul of the Constitution.
The Court's further reflection that "the Bureau's only choice is
to disregard the information it has, using a figure of zero, or to
use imputation in an effort to achieve greater accuracy,"
ante, at 478, makes no difference as to whether it is
constitutionally permissible. Even if hot-deck imputation produces
more accurate results (and we do not have the means to answer that
question), the Framers well understood that some Americans would go
uncounted. Accuracy is not the dispositive factor in the
constitutional consideration. Despite their awareness that
estimation techniques could be used to supplement data, the Framers
chose instead to require an "actual Enumeration" or "counting of
whole persons." Disappointment following the first census did not
prompt a change in this view or in the text. A zero must remain a
zero under the dictates of the Constitution.
The Court takes the position that "enumeration" may be
incompatible with gross statistical estimates, but concludes that
such gross estimates are not at stake here. See
ante, at
476. I derive little comfort from the fact that the Court has drawn
a constitutional line at "'gross statistical estimates.'"
Ibid. The Court neglects to explain the boundaries of such
gross estimates, begging the question of how "gross" must "gross"
be? The Court nonchalantly comments that the Census Bureau used the
method "sparingly," see
ante, at 477, and that the
"inference involves a tiny percent of the population,"
ante,
at 479. But the consequences are far from trivial. One State's
representation in Congress is reduced while another's is fortified.
If the use of hot-deck imputation in the next Census shifts the
balance of power in "only" two or three seats, will the Court
continue to defend the method? Today, we deal with hot-deck
imputation. But if history is our guide, surely other statistical
methods will be employed in future censuses and there will be
similar challenges. By accepting one method of estimation as
con-
510
stitutionally permissible, the Court has opened the door, and we
will be continually called to judge whether one form of estimation
is more acceptable than another.13
***
After much debate and faced with a long history of political
manipulation, the Framers decided to make the taking of an "actual
Enumeration" a constitutional requirement. While other nations had
attempted population counts, none had made the count itself an
important method of maintaining democracy by mandating it through a
founding document. As a leading French statistician noted: "The
United States presents in its history a phenomenon that has no
parallel-that of a people who initiated the statistics of their
country on the very day that they formed their government, and who
regulated, in the same instrument, the census of their citizens,
their civil and political rights, and the destiny of their people."
Alterman 164. Well familiar with methods of estimation, the Framers
chose to make an "actual Enumeration" part of our constitutional
structure. Today, the Court undermines their decision, leaving the
basis of our representative government vulnerable to political
manipulation.
For the reasons stated above, I respectfully dissent from Part
IV of the Court's opinion and would reverse the judgment of the
District Court.
JUSTICE SCALIA, dissenting.
For the reasons I set forth in my opinion in
Franklin
v.
Massachusetts, 505 U. S. 788, 823-829
(1992) (concurring in part and concurring in judgment)-and for an
additional one brought forth in the briefing and argument of the
present
13 See
House of Representatives, 525 U. S., at 349
(SCALIA, J., concurring in part) ("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").
511
case-I disagree with the Court's holding that appellants have
standing under Article III of the Constitution to bring this
suit.
As the Court acknowledges, in order to establish standing,
appellants must show that the federal courts "have the power to
redress the injury that the [federal appellees] allegedly caused
[them]."
Ante, at 459 (internal quotation marks omitted).
Yet the Court does not dispute that, even if appellants were to
succeed in their challenge and a court were to order the Secretary
of Commerce to recalculate the final census, their injury would
not be redressed "unless the President accepts the new
numbers, changes his calculations accordingly, and issues a new
reapportionment statement to Congress .... "
Franklin,
supra, at 824. That fact is fatal to appellants' standing
because appellants have not sued the President to force him to take
these steps-and could not successfully do so even if they tried,
since "no court has authority to direct the President to take an
official act," 505 U. S., at 826. As the Court acknowledged in
Franklin, the President enjoys the discretion to refuse to
issue a new reapportionment statement to Congress: "[H]e is not ...
required to adhere to the policy decisions reflected in the
Secretary's report."
Id., at 799; see also
id., at
800. It displays gross disrespect to the President to assume that
he will obediently follow the advice of his subordinates-in this
case, a new report by his Secretary, recommending that he alter his
prior determination.
Id., at 824-825 (SCALIA, J., concurring
in part and concurring in judgment). Thus, because appellants'
"standing depends on the unfettered choices made by independent
actors not before the courts and whose exercise of broad and
legitimate discretion the courts cannot presume either to control
or to predict,"
Lujan v.
Defenders of Wildlife,
504 U. S. 555,
562 (1992) (internal quotation marks omitted), standing in this
case does not exist.
The case for appellants' standing is even weaker than I
described it in
Franklin. Redress of their alleged
injuries
512
depends not only on a particular exercise of the President's
discretion, but also on the exercise of the unbridled discretion of
a majority of 435 Representatives and 100 Senators (or two-thirds
if the President does not agree), whom federal courts are equally
powerless to order to take official acts.
Section 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." Section 5 of
the Fourteenth Amendment provides that "[t]he Congress shall have
power to enforce, by appropriate legislation, the provisions of
this article." Pursuant to that authorization, Congress has
provided that, once the President transmits to Congress the
decennial reapportionment statement that the statute requires, 46
Stat. 26, 2 U. S. C. § 2a(a), "[e]ach State shall be entitled, ...
until the taking effect of a reapportionment under this section or
subsequent statute, to the number of Representatives shown in
[that] statement," § 2a(b). Thus, the law provides only two means
by which Utah's entitlement can be altered: "the taking effect of a
reapportionment under this section or subsequent statute."
Ibid. The first means refers to the next decennial census; 1
the second to a new law enacted in the interim. Thus, even if the
President
wanted to transfer one congressional seat from
North Carolina to Utah, he could not do so before 2011 unless
Congress enacted a new law authorizing such a
reapportionment.
1 It cannot be deemed to refer to reapportionment under the
new Presidential statement that appellants seek, because
"reapportionment under this section" pursuant to the 2000 census
has already occurred. The Presidential statement effecting
"reapportionment under this section" must be transmitted "[o]n the
first day, or within one week thereafter, of the first regular
session" of the first Congress after the census, § 2a(a)-a deadline
met by the President's statement under challenge here, but now long
since passed.
513
The Court no doubt realizes that it is not even conceivable that
appellants could have standing if redress of their injuries hinged
on action by Congress; accordingly, it is driven to assert that the
law does not mean what it says. The statute, the Court argues,
"do[es] not expressly say" what is to occur when the numbers the
Secretary reported to the President are flawed; accordingly,
because it "makes good sense" to do so, the Court reads into the
statute a third means by which the reapportionment can be altered:
judicially decreed "mechanical revision" of "a clerical, a
mathematical, or a calculation error" in the Secretary's report.
Ante, at 462. This is an astonishing exercise of raw
judicial power. The statute says very clearly what is to occur when
anything (including a clerical, mathematical, or calculation
error in the Secretary's report) renders the completed
apportionment worthy of revision: nothing at all, unless
Congress deems it worthy of revision and enacts a new law
making or authorizing the revision that
Congress thinks
appropriate. There was no reason for the statute to list
"expressly" the infinite number of circumstances in which the
reapportionment could
not be altered by other means, because
it expressly said that the States' "entitle[ment]" to the number of
Representatives shown in the presidential statement
could be
altered
only by the two prescribed means. There is simply no
other way to read the governing text: that the States "shall be
entitled" to the reapportionment set forth in the President's
statement "until" one of two events occurs, undeniably means that
unless one of those two events occurs the States
remain "entitled" to the reapportionment. What a wild principle of
interpretation the Court today embraces: When a statute says that
an act can be done
only by means
x or
y, it
can also be done by other means that "make good sense" under the
circumstances, unless
all the circumstances in which it
cannot be done have been listed.
I would not subscribe to application of this deformed new canon
of construction even if there were something about
514
"clerical error" that made it uniquely insusceptible of
correction by the means set forth in the statute. But there is not.
Indeed, what more plausible and predictable occasion for
congressional revision could there be than the demonstration of an
error in the reported census count? By taking the responsibility
for determining and remedying that error away from Congress, where
the statute has placed it, and grasping it with its own hands, the
Court commits a flagrant violation of the separation of powers.
The Court can find no excuse in our precedents for to day's
holding. It relies on three of our cases in which it says we "found
standing in similar circumstances,"
ante, at 464. They are
similar as day and night are similar. Two of them,
Federal
Election Comm'n v.
Akins, 524 U. S. 11 (1998), and
Metropolitan Washington Airports Authority v.
Citizens
for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991), are
inapposite because redress of the plaintiffs' injuries did not
require action by an independent third party that was not (and
could not be) brought to answer before a federal court, much less
by a third party for whom (as for the President) it would be
disrespectful for us to presume a course of action, and much, much
less in violation of the explicit text of a statute.2 Although in
the third case,
Bennett v.
Spear, 520 U. S. 154 (1997), we
found standing to challenge the action of one agency (Fish and
Wildlife Service) despite the fact that redress ultimately depended
upon action by another agency (Bureau of Reclamation) not before
the Court, we made it quite clear that we came to this conclusion
only because in the matter at issue the one agency had the power to
coerce action by the other: "[I]t does not suffice," we said, "if
the injury complained of is the result of the
independent
action of some third party not before the court."
Id., at
169
2 Moreover, in
Metropolitan Washington there was no doubt
that, if a court enjoined the challenged action, the injuries it
allegedly caused would be redressed
automatically by
operation of law. See 501 U. S., at 265 (citing 49 U. S. C. App.
§2456(h)).
515
(internal quotation marks and brackets omitted). We found that,
"while the [Service] theoretically serves an advisory function, in
reality it has a powerful coercive effect on the action agency."
Ibid. (internal quotation marks and citation omitted). In
this case, by contrast, we simply cannot sayboth because it is not
true and because it displays gross disrespect to do so-that the
action of the President is "coerced" by the Secretary. Not to
mention, once again, the statute that explicitly leaves this
question to Congress.
For these reasons, I would vacate the judgment of the District
Court and remand with instructions to dismiss for want of
jurisdiction.
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