Constitutionality of State-Imposed Restrictions on Responses

to Census Questions

T h e Suprem acy C lause o f the C o nstitution bars a state from im posing restrictions on its 

residents’ responses to questions contained in census form.

Specific lim ited grant o f p o w er in the C onstitution does not preclude C ongress from 

enacting broader census legislation u nder the N ecessary and P ro p er Clause.

S tatu to ry delegation to th e S ecretary o f C om m erce and D irecto r o f the Bureau o f C ensus 

is not excessive, considering long history o f census legislation and practice, and census 

form s are w ithin that delegation.

February 22, 1980

M EM O RA N D U M O PIN IO N FOR T H E G E N E R A L COUNSEL, 

D E PA R T M E N T O F CO M M ERCE

This responds to the letter of the Legal Adviser, Bureau of the 

Census, seeking the opinion of this Office on the constitutionality of a 

bill introduced into the Senate of the State of Arizona that would limit 

census responses by residents of Arizona to their name, address, and 

age. It is our conclusion that such legislation, if enacted, would be 

unconstitutional under the Supremacy Clause of the Constitution (Art. 

VI, cl. 2) to the extent that it would purport to excuse residents of 

Arizona from answering questions in the census form that are authorized by federal law.

The primary authority for the census form for the 1980 census is 13 

U.S.C. 141(a), pursuant to which:

The Secretary [of Commerce] shall, in the year 1980 and 

every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date 

shall be known as the “decennial census date,” in such 

form and content as he may determine, including the use 

of sampling procedures and special surveys. In connection 

with any such census, the Secretary is authorized to 

obtain such other census information as necessary.

Section 141(g) defines the term “census of population” as a “census of 

population, housing, and matters relating to population and housing.” 

13 U.S.C. § 141(g). Section 5 o f title 13 gives the Secretary of Com416
merce general implementing authority,1 and the Joint Resolution of 

June 16, 1976, 90 Stat. 688, imposes on the Secretary of Commerce 

special obligations to collect and publish statistics indicating the conditions of Americans of Spanish origin or descent and to develop creditable estimates of undercounting of Americans of Spanish origin or 

descent in future censuses.

Under Article VI, clause 2 of the Constitution, state laws must yield 

to federal laws and regulations if these federal authorities are made “in 

pursuance” of the Constitution. The sponsors of the Arizona legislation 

seem to suggest that the census legislation conflicts with the Constitution of the United States because Article I, § 2, clause 3 of the Constitution provides only for the enumeration of the population, and, hence, 

that the Constitution does not permit the inclusion in the census of any 

additional questions. The notion that a specific limited grant in the 

Constitution precludes Congress from enacting broader statutes under 

other powers granted to it in the Constitution was rejected by the 

Supreme Court more than a century ago with specific reference to the 

census legislation. In the Legal Tender Cases, 79 U.S. (12 Wall.) 457, 

536 (1871), which involved the constitutionality of the statutes making 

paper money legal tender, the argument was made that because the 

Constitution specifically authorized Congress to coin money and regulate its value (Art. I, § 8, cl. 5), Congress did not have any other 

powers in the monetary field. The Court held that under the Necessary 

and Proper Clause (Art. I, § 8, cl. 18) Congress could enact legislation 

in aid of one or more express powers “even if there is another express 

power given relating in part to the same subject but less extensive.” As 

an example for this proposition, the Court stated:

The Constitution orders an enumeration of free persons in 

the different States every ten years. The direction extends 

no further. Yet Congress has repeatedly directed an enumeration not only of free persons in the States but of free 

persons in the Territories, and not only an enumeration of 

persons but the collection of statistics respecting age, sex, 

and production. W ho questions the pow er to do this?

12 Wall, at 536.

While this approval of the broad scope of census questions in the 

Legal Tender Cases was in the nature of dictum, the Circuit Court for 

the Southern District of New York in United States v. Moriarity, 106 F. 

886, 891-92 (1901) discussed the pertinent constitutional considerations

1 This section provides:

The Secretary (of Commerce] shall prepare schedules, and shall determ ine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and 

censuses provided for in this title.

Aug. 31. 1954, ch. 1158, § 5 , 68 Stat. 1013.

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at length, and little can be added to this classic analysis. The court 

stated:

Respecting the suggestion that the power of congress is 

limited to a census of the population, it should be noticed 

that at stated periods congress is directed to make an 

apportionment, and to take a census to furnish the necessary information therefor, and that certain representation 

and taxation shall be related to that census. This does not 

prohibit the gathering of other statistics, if “necessary and 

proper,” for the intelligent exercise of other powers enumerated in the constitution, and in such case there could 

be no objection to acquiring this information through the 

same machinery by which the population is enumerated, 

especially as such course would favor economy as well as 

the convenience of the government and the citizens. . . .

It would be curious governmental debility that should 

incapacitate the nation from directing its census enumerator to ask an inhabitant concerning his business because 

for certain purposes he was only to be counted, and 

perhaps his gender ascertained. The functions vested in 

the national government authorize the obtainment of the 

information demanded by section 7 of the census act, and 

the exercise of the right befits an exalted and progressive 

sovereign power, enacting laws adapted to the needs of 

the vast and varied interests of the people, after acquiring 

detailed knowledge thereof. . . . For the national government to know something, if not everything, beyond the 

fact that the population of each state reaches a certain 

limit, is apparent, when it is considered what is the dependence of this population upon the intelligent action of 

the general government. Sanitation, immigration, naturalization, the opening and development of the public 

domain; the laying of taxes, duties, imposts, and excises, 

involving the adjustment of duties for the purposes of 

revenue to the domestic products of every kind, and the 

taxation of industries, . . . for these and similar purposes 

the government needs each item of information demanded 

by the census act, and such information, when obtained, 

requires the most careful study, to the end that the fulfillment of the governmental function may be wise and 

useful. . . . A government whose successful maintenance 

depends upon the education of its citizens may not blindly 

legislate, but may exercise the right to proclaim its commands, after careful and full knowledge of the business

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life of its inhabitants, in all its intricacies and activities.

The dem urrer should be overruled.

In United States v. Rickenbacker, 309 F.2d 462, 463 (2d Cir. 1962), 

cert, denied, 371 U.S. 962 (1963), also a case involving the validity of 

the questions contained in the census form, the court, per then Circuit 

Judge Thurgood Marshall, held:

The authority to gather reliable statistical data reasonably related to governmental purposes and functions is a 

necessity if modern government is to legislate intelligently 

and effectively. United States v. Moriarity, 106 F. 886,

891-92 (C.C.S.D.N.Y. 1901). Cf. United States v. Sharrow,

309 F.2d 77 (2d Cir. 1962). The questions contained in the 

household questionnaire related to important federal concerns, such as housing, labor, and health, and were not 

unduly broad or sweeping in their scope.

The Supreme Court, in Wyman v. James, 400 U.S. 309, 321 (1971), 

referred with approval to the holding in Rickenbacker concerning the 

scope of the census questions.

Nor can it be said that 13 U.S.C. §§ 5 and 141(a) contain excessive 

delegations of statutory power, or that the census form, as promulgated, goes beyond the scope of the delegation. It is true that the 

delegations contained in 13 U.S.C. § 5 and in the last sentence of 13 

U.S.C. § 141(a) are broad. It should be remembered, however, that 

these statutes involve an area in which Congress has legislated since 

1790, and which legislation and practice have crystallized into wellknown standards that guide the discretion of the Secretary of Commerce and the D irector of the Bureau of the Census. Fahey Mallonee,

332 U.S. 245, 250 (1947); see Yakus v. United States 321 U.S. 414, 424- 

25 (1944). Hence the district court properly held in United States v. 

Little, 321 F. Supp. 388, 391 (D.Del. 1971):

Congress has in 13 U.S.C. §§5 and 141(a) described the 

job to be done by the Secretary of Commerce and delineated the scope of his authority, viz. to “take a census of 

population unemployment, and housing (including utilities 

and equipment).” 2 The fact that there is a zone for the 

exercise of discretion by the Secretary in framing the 

questions which will elicit the necessary statistical information within the scope of the census to be undertaken 

does not render the delegation invalid. Yakus v. United

States, 321 U.S. 414, 424^25, 64 S. Ct. 660, 88 L. Ed. 834 

(1944). Further, in the absence of a clear showing (which 

has not been made in this case) that the Secretary’s

2 This quotation is based on the language o f 13 U.S.C. § 141(a) prior to its 1976 amendment.

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exercise of discretion was irrational, arbitrary or capricious, his actions will not be disturbed.

We have examined the 1980 census form. The questions asked appear 

to be either within the scope of the information traditionally asked in 

census forms or within the mandate of the Joint Resolution of June 16, 

1976. It is therefore our conclusion that 13 U.S.C. §§5 and 141(a), as 

implemented by the 1980 census form, are valid laws of the United 

States made in pursuance of the Constitution. Moreover, in view of the 

statistical nature of census operations, it is imperative that the census 

questionnaire be answered uniformly throughout the United States. 

State legislation that purports to excuse the inhabitants of a state from 

having to answer some of the questions contained in the census forms 

would constitute “an obstacle to the accomplishment and execution of 

the full purposes and objectives of Congress.” Accordingly, the state 

legislation must give way to the federal law. Hines v. Davidowitz, 312 

U.S. 52, 67 (1941); Jones v. Rath Packing, 430 U.S. 519, 526 (1977).

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

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