White House Census Grab Unconstitutional

Writing in U.S.News & World Report, Michael Barone says the White House Census power grab may violate the Constitution.

Here's an argument that it's unconstitutional for the president to take over the Census from the secretary of commerce. It goes like this: Article I, Section 2 of the Constitution provides for an "actual enumeration" and a statute passed by Congress provides that the duties under this clause are to be performed by the secretary of commerce. Article I (as Joseph Biden didn't know in debate) is about the legislative, not the executive branch. Hence, it is argued, the president can't substitute a sampling for the enumeration required to be done by the secretary.

However, it is undoubtedly true that the president can fire the secretary of commerce for any reason, including failure to conduct the Census the way he wants the Census conducted. An acting secretary could conduct the Census the way the president wanted, even if the Senate refused to confirm a new secretary of commerce who would. And who would have standing to challenge the constitutionality of the Census taking? Perhaps the state that, under the statutory formula apportionment House seats among the states, got the 436th rather than the 435th seat, i.e., came close to getting another seat but didn't get it.

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