b'The Twenty-Second Decennial Census\n\nN either the E num eration C lause o f the C onstitution nor the C ensus A ct precludes the Bureau o f the\nC ensus from statistically adjusting \xe2\x80\x9cheadcounts\xe2\x80\x9d in the decennial census for the year 2000 or con\xc2\xad\nd u cting the n o n-response follow -up on a sam ple basis.\n\nThe provision in the C ensus A ct prohibiting sam pling fo r purposes o f apportionm ent o f the H ouse of\nR epresentatives does not preclude reliance upon statistical adjustm ents that w ould im prove the ac\xc2\xad\ncu racy o f \xe2\x80\x9chead co u n t\xe2\x80\x9d data\n\nOctober 7, 1994\nM e m o r a n d u m f o r t h e S o l ic it o r G e n e r a l\n\nYou have asked, on behalf of the Department of Commerce, for our advice on\nthe questions w hether the use of statistically adjusted census figures would be con\xc2\xad\nsistent with the C onstitution, U.S. Const, art. I, \xc2\xa7 2, cl. 3, and with the Census Act,\n13 U.S.C. \xc2\xa7\xc2\xa7 1-307. The questions arise because the traditional method o f taking\nthe census fails to count a significant portion of the population, and in particular\ndisproportionately undercounts identifiable racial and ethnic minorities. In light of\nthese problem s, the Department o f Commerce is considering the use of statistical\nadjustm ents in the twenty-second decennial census (for the year 2000) before the\nfinal count is com pleted in order to improve the accuracy of that census. The De\xc2\xad\npartm ent of Com m erce is also considering the use of sampling to conduct the fol\xc2\xad\nlow-up on households that did not respond to its initial mailing o f questionnaires.\nA ccordingly, it desires to know w hether such procedures would be lawful. We\nconclude that both o f the proposed changes in conducting the census would be\nlawful.*\nI.\nThe C onstitution \xe2\x80\x9cprovides the basis for the decennial censuses, but does not\nspecify the details o f their administration.\xe2\x80\x9d Seventeenth D ecennial Census , 41 Op.\nA tt\xe2\x80\x99y Gen. 31, 32 (1949). Instead, the Constitution vests in Congress the power to\nconduct an \xe2\x80\x9cactual Enumeration . . . in such M anner as they shall by Law direct.\xe2\x80\x9d\nU.S. Const, art. I, \xc2\xa7 2, cl. 3. Congress\xe2\x80\x99s pow er has in turn been vested in the Bu\xc2\xad\nreau of the Census (the \xe2\x80\x9cBureau\xe2\x80\x9d), a component o f the D epartment of Commerce.\nSee 13 U.S.C. \xc2\xa7 2.\n" E d ito r\xe2\x80\x99s N ote: S u b se q u en t to the date o f this opinion, the Suprem e C ourt held that the C ensus A ct pro\xc2\xad\nh ibits the p ro p o sed uses o f statistical sam p lin g in calcu latin g population for congressional apportionm ent\np urposes. S e e D ep a rtm en t o f Com m erce v U nited S ta tes H o u se o f R epresentatives, 119 S C t 765, 779\n(1999). T h e C o u rt did not reach the constitutional question. Id.\n\n184\n\n\x0cThe Tw enty-Second D ecennial Census\n\nThe primary purpose of the decennial census\' is to provide the basis for\nCongress\xe2\x80\x99s apportionment of seats in the House of Representatives am ong the\nStates.2 The census also serves several other legally significant objectives. His\xc2\xad\ntorically, the decennial census has been \xe2\x80\x9can enumeration not only of free persons in\nthe States but of free persons in the Territories, and not only an enumeration of\npersons but the collection of statistics respecting age, sex, and production.\xe2\x80\x9d L egal\nTender Cases, 79 U.S. (12 W all.) 457, 536 (1870). \xe2\x80\x9cThe census today serves an\nimportant function in the allocation of federal grants to states based on population.\nIn addition, the census also provides important data for Congress and ultimately for\nthe private sector.\xe2\x80\x9d B aldrige v. Shapiro, 455 U.S. 345, 353 (1982); see gen erally\nNote, D em ography an d D istrust: Constitutional Issues o f the F ederal Census, 94\nHarv. L. Rev. 841, 844-45 (1981).\nThe traditional method for conducting the decennial census \xe2\x80\x9cis a headcount\nrather than an estimation based on sampling.\xe2\x80\x9d Tucker v. U nited States D e p \xe2\x80\x99t o f\nCom merce, 958 F.2d 1411, 1412 (7th Cir.), cert, den ied, 506 U.S. 953 (1992).3\nThe term \xe2\x80\x9cheadcount\xe2\x80\x9d is somewhat misleading, however. \xe2\x80\x9cThe census . . . is not a\nheadcount in which each and every person residing in the United States on a given\ndate is counted by the Census Bureau. Rather, it is a survey of the population that\nthrough the responses of one member of each household attempts to enumerate the\nentire population.\xe2\x80\x9d C arey v. Klutznick, 508 F. Supp. 420, 426 (S.D.N.Y. 1980),\nr e v \xe2\x80\x99d, 653 F.2d 732 (2d Cir. 1981), cert, denied, 455 U.S. 999 (1982).\nIn the 1990 census, the Bureau\xe2\x80\x99s tabulation had four phases. First, relying on\nlists compiled by commercial sources and its own fieldwork, the Bureau derived a\nmailing list of as many households as it could locate. Second was the \xe2\x80\x9cmail\nout/mail back\xe2\x80\x9d phase, in which the Bureau mailed out questionnaires to each\nhousehold on its list, and requested their return by April 1, 1990. (The return rate\nwas 63%.) The third phase was a follow-up in which the Bureau sent out another\nround of mailings. The fourth phase comprised efforts by census enumerators, in\nperson, to contact non-responding households (or other reliable sources) to obtain\nthe needed information. Following that, the Bureau undertook \xe2\x80\x9ccoverage im\xc2\xad\nprovement programs\xe2\x80\x9d designed to reach non-respondents in other ways, including\nrechecks of all vacant or uninhabitable housing units, recanvassing of selected\nblocks, an advertising campaign, checks of parolees and probationers, and a local\n\n1 T here is also a m id-decade census. See 13 U S.C . \xc2\xa7 141(d)\n2 T he apportionm ent o f R epresentatives am ong the Stales in turn affects the allocation o f Electoral C ol\xc2\xad\nlege votes to the Stales. See U.S C onst art. II, \xc2\xa7 I, cl 2.\n1\nT he first statute authorizing a census, "A n A ct providing for the enum eration o f the Inhabitants o f the\nU nited S tates" (M ar I, 1790), declared that \xe2\x80\x9cthe m arshals o f the several districts o f the U nited S tates\xe2\x80\x9d were\n\xe2\x80\x9c authorized and required to cause the num ber o f the inhabitants w ithin th eir respective districts lo be taken,\xe2\x80\x9d\nom itting Indians not taxed. 4 N a tio n a l Stale P a p ers o f ihe U n ited States, 1789-1817, at I (Eileen Daney\nC arzo ed , 1985). It further placed on \xe2\x80\x9ceach and every person m ore than sixteen years o f age\xe2\x80\x9d the obligation\nto provide the census-taker \xe2\x80\x9ca true account, if required, to the b est o f his or her know ledge, of all and every\nperson belonging to [the resp o n d en t\'s] family \xe2\x80\x9d Id at 3.\n\n185\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\ngovernm ent review. See C ity o f N ew York v. U nited States D e p \xe2\x80\x99t o f Com m erce, 34\nF.3d 1114 (2d Cir. 1994), r e v \xe2\x80\x99d, 517 U.S. 1 (1 9 9 6 )4\nLike earlier censuses, the 1990 census concededly did not count the entire\npopulation of the United States.5 G iven the inherent difficulties of census-taking\nand the existence o f financial and tim e constraints, some degree o f inaccuracy in\nthe census count is perhaps inevitable. The Bureau itself believes that \xe2\x80\x9cevery cen\xc2\xad\nsus has necessarily involved an undercount,\xe2\x80\x9d Young v. Klutznick, 497 F. Supp.\n1318, 1327 (E.D. M ich. 1980), r e v \xe2\x80\x99d, 652 F.2d 617 (6th Cir. 1981), cert, denied,\n455 U.S. 939 (1982), and the courts agree that \xe2\x80\x9ca perfectly accurate count of up\xc2\xad\nwards of 250 m illion people\xe2\x80\x9d is sim ply not \xe2\x80\x9cfeasible.\xe2\x80\x9d C ity o f D etroit v. Franklin,\n4 F.3d at 1377.6 Far more troubling than the bare existence of an undercount is the\nfact that the 1990 census perpetuated a pattern, the existence of which has been\nrecognized since 1940, o f differentially undercounting African Americans.7 The\n1990 census also differentially undercounted Hispanics: the estimated undercount\nfor that group was 5.2% , as against an estim ated undercount of 2.1% for the popu\xc2\xad\nlation at large.8 The Bureau \xe2\x80\x9cspecifically acknow ledge^] an undercount in the\n1990 census ranging from 1.7 percent of whites to 5.2 percent of Hispanics.\xe2\x80\x9d9\nDespite that acknowledgement, the Secretary of Commerce declined in 1991 to\nadjust the 1990 census figures to correct for the undercounts.10 The Secretary\xe2\x80\x99s\n4 T h e B u re a u \xe2\x80\x99s effo rts to o b tain as accurate a count as po ssib le have been found to be \xe2\x80\x98\xe2\x80\x98extraordinary\nA ccording to one co u rt, the 1990 census is sa id to be one o f th e best ever taken in this country because d e \xc2\xad\nspite o u r larg e po p u latio n , approxim ately 9 8 percent o f the population w as counted.\xe2\x80\x9d C itx o f D etroit v.\nF ranklin, 4 F 3d 1367, 1376 (6 th C ir. 1993), c e r t denied, 5 1 0 U .S 1176(1994).\n5 T h e first c en su s in 1790 co u n ted over 3 ,8 9 0 ,0 0 0 people, but fell short o f the expected 4,000,000 figure\nG eorge W ash in g to n th o u g h t it \xe2\x80\x9ccertain\xe2\x80\x99\xe2\x80\x99 that \xe2\x80\x9c o u r rea l num bers will exceed, greatly, the official returns of\nthem ,\xe2\x80\x99* and T h o m as Jefferso n considered the uncounted p o p u latio n \xe2\x80\x9cvery g reat.\xe2\x80\x9d See B a ld n g e v Shapiro,\n455 U .S at 353 n 8.\n6 S e e a lso K a rc h e r v D a g g ett, 462 U S 7 2 5 , 732 (1983) ( \xe2\x80\x9c the census data are not perfect, and the wellknow n restlessn ess o f the A m erican people m e a n s that p o p u latio n counts fo r particular localities are outdated\nlong b efo re they are c o m p leted "); id at 7 7 2 (W hite, J , d issen tin g) (\xe2\x80\x9cthe census . . cannot be perfect\xe2\x80\x9d),\nG affney v C u m m in g s, 412 U .S. 735, 745 (1 9 7 3 ) (decennial census figures \xe2\x80\x9c may be as accurate as such\nim m ense u n d ertak in g s can be, but they are in h e re n tly less th an absolutely accurate \xe2\x80\x9d).\n7 In the 1990 cen su s, \xe2\x80\x9c B lacks w ere und erco u n ted by 4 8 % , H ispanics by 5 2% , A sian-Pacific Islanders by\n3.1% , A m erican Indians by 5.0% , and n on-B lacks by 1.7% \xe2\x80\x9d S en ate o f C alifornia v M osbacher, 968 F 2 d\n974, 975 (9 th C ir 1992) \xe2\x80\x9cIn 1940, 10 3 p e rc en t o f blacks w ere missed, com pared to 5 1 percent o f w hites, a\ngap o f 5.2 p ercen tag e points. In 1980, 6 2 p e rc en t o f blacks w ere missed, com pared to I 3 percent o f whites,\nfor a sim ila r disparity o f 4 9 percentage p o in ts.\xe2\x80\x9d Sam uel Issach aro ff & A llan J Lichtm an, The C ensus Un\xc2\xad\nde rc o u n t a n d M in o rity R epresentation T h e C o n stitu tio n a l O bligation o f the States to G uarantee E qual\nR ep resen ta tio n , 13 R ev. L ing. 1, 8 (1993) S e e also G ajfnev v. C um m ings, 412 U S at 745 n.10\n8 S e e S tephen E Fienberg, The New York C ity C ensus A d ju stm ent T n a l: W itness f o r the P laintiffs, 34\nJ u n m e tric s J. 65, 70-71 (1993)\n9 Tucker, 958 F.2d at 1413; s e e generally D e cisio n o f th e S ecretary o f C om m erce on W hether a S ta tisti\xc2\xad\nc a l A d ju stm e n t o f the 1990 C en su s o f P o p u la tio n a n d H o u sin g Should B e M ade f o r C overage D eficiencies\nR esu ltin g in an O verco u n t o r U ndercount o f th e P opulation, 5 6 Fed Reg. 33,582 (1991)\n10 T h e S e c re ta ry \xe2\x80\x99s reaso n in g , as recapitulated by the S ev en th Circuit, w as that\nw h ile a d ju stm en t by the b e st method av ailab le w ould increase the c ensus totals, it w ould not sig \xc2\xad\nn ifican tly alter the apportionm ent o f s e a ts in the H ouse o f R epresentatives am ong the slates, in\npart becau se there is overcounting as w ell as und erco u n tin g A fter the dust settled, Illin o is\xe2\x80\x99s re p \xc2\xad\nresen tatio n w ould be unchanged, a lth o u g h C alifo rn ia an d A rizona w ould pick up a few seats at\nthe ex p en se o f P ennsylvania and W isco n sin Federal grant allocations m ight not be m uch af-\n\n186\n\n\x0cThe Tw enty-Second D ecennial Census\n\ndecision not to make the adjustment has been the subject of litigation in three cir\xc2\xad\ncuits, with conflicting results. Com pare Tucker (plaintiffs had no judicially en\xc2\xad\nforceable rights) and City o f D etroit (same) with City o f N ew York (remanding with\ninstruction that refusal to adjust could not be upheld unless shown to be necessary\nto a legitimate governmental interest).\nThe Bureau is currently considering whether to adjust the \xe2\x80\x9craw count\xe2\x80\x9d o f the\nnext decennial census for the year 2000. Sampling was used in connection with the\n1990 census to carry out the \xe2\x80\x9cPost-Enumeration Survey\xe2\x80\x9d (the \xe2\x80\x9cPES\xe2\x80\x9d) that m eas\xc2\xad\nured the undercount for that year. See C ity o f N ew York, 34 F.3d at 1117; David\nA. Freedman, A djusting the Census o f 1990, 34 Jurimetrics J. 99, 102-03 (1993).\nIn that census, the Bureau tested the accuracy of the count by a PES o f some\n174,000 households and then matching the questionnaires for households in the\nPES against the same households in the census (including both mail-backs and\nnon-response follow-ups). The matching process provided the Bureau with data to\ndevelop adjusting factors, or \xe2\x80\x9cmultipliers,\xe2\x80\x9d to capture the estimated under- or over\xc2\xad\ncount for some 1,392 demographic subgroups. The application of the multipliers\nto the enumeration data for the subgroups produced the conclusion that 1.6% of the\ntotal population had not been counted in the census. For the 2000 census, the Bu\xc2\xad\nreau is considering the use of a sample-based adjustment as in 1990, except that it\nwould complete the adjustment before its deadline for reporting State totals to the\nPresident.\nThe Bureau is also considering whether to conduct the non-response follow-up\non a sample basis, rather than sending enumerators to each non-responding house\xc2\xad\nhold. Specifically, it is proposing to contact, by telephone or in person, between\n25% and 50% of the households that failed to return the census questionnaire. The\nBureau would then extrapolate from the results of this sample to estimate the whole\nnon-respondent population. The Bureau believes that the use of this procedure\nwould save it between $300 and $600 million. At the same time, it advises us that\nthe procedure would also produce greater accuracy than was achieved in the 1990\ncensus.\nIn the past, the Bureau took the position that it would be legally precluded from\nadjusting the census for apportionment purposes. See Census U ndercount A d ju st\xc2\xad\nment: B asis f o r D ecision, 45 Fed. Reg. 69,366, 69,371-73 (1980). This claim was\nbased on both constitutional and statutory grounds. First, the Bureau has argued\nthat\nfected eith er\nM oreover, any attem pt to m ake a statistical adjustm ent to the m echanical\nheadcount w ould, by injecting judgm ental factors \xe2\x80\x94 and ones o f considerable technical c o m \xc2\xad\nplexity to boot,\n\xe2\x80\x94 open the census process to charges o f political m anipulation A nd w hile a\nstatistical adjustm ent for the undercount w ould undoubtedly im prove the accuracy o f the n a tio n \xc2\xad\nwide c en su s total, there is no consensus am ong statisticians and dem ographers that it w ould\nm ake the state and district census totals \xe2\x80\x94 the level at w hich the adjustm ent w ould actually af\xc2\xad\nfect representation and funding \xe2\x80\x94 m ore accurate\nTucker, 958 F .2d at 1413 (citations o m itted); see also C ttv o f N ew York., 34 F 3d at 1122-23; S e n a te o f C ali\xc2\xad\nfo rn ia , 968 F 2d at 975\n\n187\n\n\x0cOpinions o f the O ffice o f L eg a l C ounsel\n\ninterpretation o f the phrase \xe2\x80\x9cactual enum eration\xe2\x80\x9d in Article 1, Sec\xc2\xad\ntion 2, Clause 3 must begin with the words themselves, and that the\nterm s \xe2\x80\x9ccensus\xe2\x80\x9d and \xe2\x80\x9cenumeration\xe2\x80\x9d mean nothing more or less than a\nheadcount. [It] say[s] that the use of the m odifier \xe2\x80\x9cactual\xe2\x80\x9d with the\nword \xe2\x80\x9cenum eration\xe2\x80\x9d can only reinforce the conclusion that the\nfram ers o f the Constitution intended a headcount, and nothing but a\nheadcount. [It] further reifies] upon the fact that, with the exception\no f the 1970 census when imputations were performed which added\napproxim ately 4.9 million people, the census has been, since 1790,\nan actual headcount and nothing more.\nYoung v. K lutznick, 4 91 F. Supp. at 1332. The Bureau has also argued in the past\nthat \xe2\x80\x9ceven if the Constitution does not prohibit an adjustment for apportionment of\nRepresentatives, C ongress has by statute prohibited such an adjustment.\xe2\x80\x9d Id. at\n1334. W e consider these issues in turn.\n\nII.\nThe Enum eration Clause of the Constitution reads in relevant part as follows:\nR epresentatives . . . shall be apportioned among the several States\n. . . according to their respective N um bers . . . . The actual Enu\xc2\xad\nmeration shall be made within three Years after the first Meeting of\nthe Congress of the United States, and within every subsequent\nTerm o f ten Years, in such M anner as they shall by Law direct.\nU.S. Const, art. I, \xc2\xa7 2, cl. 3; see a lso U.S. Const, amend. XIV, \xc2\xa7 2\n(\xe2\x80\x9cR epresentatives shall be apportioned among the several States according to their\nrespective numbers, counting the w hole num ber o f persons in each State . . . . \xe2\x80\x9d).\nThe Enum eration Clause was one facet of the \xe2\x80\x9cGreat Com prom ise\xe2\x80\x9d at the Con\xc2\xad\nstitutional Convention, which provided for equal representation of the States in a\nSenate, and representation of \xe2\x80\x9cthe People of the several States\xe2\x80\x9d in a House of Rep\xc2\xad\nresentatives. U.S. Const, art. I, \xc2\xa7 2, cl. 1; see gen era lly W esberry v. Sanders, 376\nU.S. 1, 10-16 (1964); D em ography an d D istrust, 94 Harv. L. Rev. at 846. Be\xc2\xad\ncause the Fram ers \xe2\x80\x9cintended that in allocating Congressmen the number assigned\nto each State should be determined solely by the number of the State\xe2\x80\x99s inhabitants\n. . ..[t]he C onstitution embodied Edm und R andolph\xe2\x80\x99s proposal for a periodic cen\xc2\xad\nsus to ensure \xe2\x80\x98fair representation o f the people\xe2\x80\x99\xe2\x80\x9d W esberry, 376 U.S. at 13-14\n(citations omitted).\nBefore the first decennial census in 1790, no modern Nation had undertaken a\ncensus (although all the States of the United States, with some exceptions in the\nSouth, had done so). See Hyman Alterman, Counting P eople: The Census in\n188\n\n\x0cThe T w enty-Second D ecennial Census\n\nH istory 164 (1969). Thus, when the Framers were apportioning seats in the first\n\nHouse of Representatives, their decisions were the outcome of \xe2\x80\x9cconjecture and\npolitical compromise: [they] apparently assigned some of the smaller States a\nnumber of Representatives not justified by the size of their populations.\xe2\x80\x9d M em o\xc2\xad\nrandum for Wendell L. W ilkie II, General Counsel, Department o f Commerce,\nfrom Stuart M. Gerson, Assistant Attorney General, Civil Division at 4 (July 9,\n1991) (the \xe2\x80\x9cGerson M em orandum \xe2\x80\x9d).11 The C onstitution\xe2\x80\x99s reference to an \xe2\x80\x9cactual\nEnumeration\xe2\x80\x9d must be explained by reference to the Fram ers\xe2\x80\x99 ignorance of the\nexact size of the population and its distribution among the States: \xe2\x80\x9c[w]hen the\nConstitution speaks of actual enumeration, it speaks o f that as opposed to esti\xc2\xad\nm ates.\xe2\x80\x99\xe2\x80\x99 Young v. Klutznick, 497 F. Supp. at 1332 (emphasis added). A cco rd\nMemorandum for Alice Daniel, Assistant Attorney General, Civil Division, from\nJohn M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re:\nP ending Litigation Concerning S tatistical A djustm ent o f 1980 D ecennial Census\nP opulation D ata at 2 (Sept. 25, 1980) (the \xe2\x80\x9cHarmon M em orandum \xe2\x80\x9d) (\xe2\x80\x9cthe phrase\n\n[\xe2\x80\x98actual Enum eration\xe2\x80\x99] was chosen because an accurate population count was es\xc2\xad\nsential once the Convention decided, in the Great Compromise, that representation\nin the House would be apportioned on the basis of population.\xe2\x80\x9d).\nThe proposal for a periodic enumeration of the population originated, as noted\nabove, with Edmund Randolph, as an incident to the Great Compromise. On July\n10, Randolph moved a proposal calling for Congress \xe2\x80\x9cto cause a census, and esti\xc2\xad\nmate to be taken within one year after its first meeting; and every [left blank] years\nthereafter \xe2\x80\x94 and that the L egislature] arrange the Representation accordingly.\xe2\x80\x9d\nJames Madison, N otes o f D ebates in the F ederal Convention o f 1 7 8 7 , at 265\n(Adrienne Koch ed., 1966) (bracketed material added). George M ason spoke in\nfavor of the motion on the next day, declaring that \xe2\x80\x9c[h]e did not object to the con\xc2\xad\njectural ratio which was to prevail in the outset; but considered a Revision from\ntime to time according to some permanent & precise standard as essential to [the]\nfair representation required in the [first] branch.\xe2\x80\x9d Id. at 266. Later in the debate,\nRandolph repeated M ason\xe2\x80\x99s point that \xe2\x80\x9cthe ratio fix[ed] for the [first] meeting [of\nCongress] was a mere conjecture.\xe2\x80\x9d Id. at 267. On August 21, Madison repeated\nthat \xe2\x80\x9c[t]he last apportionment o f Cong[ress], on which the number o f Representa\xc2\xad\ntives was founded, was conjectural and meant only as a temporary rule till a Cen\xc2\xad\nsus should be established.\xe2\x80\x9d Id. at 497. Madison also explained in The F ederalist\nthat the provision in Article I, Section 2, Clause 3 of the Constitution for a House\no f Representatives that would consist of sixty-five members in the First Congress\nwas merely \xe2\x80\x9ca temporary regulation,\xe2\x80\x9d to be revised when the findings o f the census\n\nS ee also H ym an A lterm an, C ounting P eople at 187-88 ("T he C onvention had available to it estim ates\n11\no f the w hite and slave populations in the v arious stales M ainly on the basis o f these estim ates the C o n v en \xc2\xad\ntion decided how m any representatives each state should have until the first census w as ta k e n .\xe2\x80\x9d).\n\n189\n\n\x0cOpinions o f the O ffice o f L eg a l C ounsel\n\nof 1790 becam e known. The F ederalist No. 55, at 343 (James M adison) (Clinton\nR ossiter ed., 1961).12\nThese discussions make it clear that, in requiring an \xe2\x80\x9c actual \xe2\x80\x9d enumeration, the\nFramers m eant a set o f figures that was not a m atter of conjecture and compromise,\nsuch as the figures they had themselves provisionally assumed. An \xe2\x80\x9cactual\xe2\x80\x9d enu\xc2\xad\nmeration would instead be based, as George M ason put it, on \xe2\x80\x9csome permanent &\nprecise standard.\xe2\x80\x9d There is no indication that the Framers insisted that Congress\nadopt a \xe2\x80\x9cheadcount\xe2\x80\x9d as the sole m ethod for carrying out the enumeration, even if\nlater refinem ents in the metric of populations would produce more accurate meas\xc2\xad\nures.\nFurtherm ore, the Fram ers left it to Congress to conduct the enumeration \xe2\x80\x9cin\nsuch M anner as they shall by Law direct.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa7 2, cl. 3. That ex\xc2\xad\nplicit delegation im plies that the Fram ers were w illing to allow for innovation in\nthe choice o f m easuring techniques; and, not surprisingly, \xe2\x80\x9cthe Census Bureau\xe2\x80\x99s\nunbroken historical practice really has been to use modern knowledge and scien\xc2\xad\ntific techniques to get further and further away from simple headcounting.\xe2\x80\x9d Young\nv. K lutznick, 497 F. Supp. at 1333.13 \xe2\x80\x9cThe result, and not the method, is the im\xc2\xad\nportant lesson of the historical experience.\xe2\x80\x9d Harm on Memorandum at 2.\nIn addition, Article I, Section 2, Clause 3 o f the Constitution was amended by\nsection 2 o f the Fourteenth Amendment. Section 2 declares that \xe2\x80\x9cRepresentatives\nshall be apportioned am ong the several States according to their respective num\xc2\xad\nbers, counting the whole number o f persons in each State, excluding Indians not\ntaxed.\xe2\x80\x9d U.S. Const, amend. XIV, \xc2\xa7 2. Further, section 5 confers on Congress the\n\xe2\x80\x9cpower to enforce, by appropriate legislation, the provisions of this article.\xe2\x80\x9d Id.\n\xc2\xa7 5. C ongress\xe2\x80\x99s powers under section 5 have been \xe2\x80\x9cequated . . . with the broad\npowers expressed in the Necessary and Proper Clause, U.S. Const, art. I, \xc2\xa7 8, cl.\n18. \xe2\x80\x98Correctly viewed, \xc2\xa7 5 is a positive grant o f legislative power authorizing\nCongress to exercise its discretion in determ ining whether and what legislation is\nneeded to secure the guarantees o f the Fourteenth Am endm ent.\xe2\x80\x99\xe2\x80\x9d Fullilove v.\nK lutznick, 448 U.S. 448, 476 (1980) (plurality opinion) (quoting K atzenbach v.\nM organ , 384 U.S. 641, 651 (1966)). It follows that Congress has broad power to\ndeterm ine how to carry out the apportionm ent called for by section 2, and to con\xc2\xad\nduct the enum eration on which that apportionm ent is based. See M assachusetts v.\nM osbach er, 785 F. Supp. 230, 253 (D. M ass.) (three-judge court) (\xe2\x80\x9cthe exercise of\nSection 5 pow ers here in defining the m ethodology for reapportionment falls\n12\nU S C o n st art. I, \xc2\xa7 2, cl 3 provided th a t \xe2\x80\x9c until such e n u m eration shall be m ade,\xe2\x80\x99\' the Slates were to\nhave p red eterm in ed n um bers o f R epresentatives: three fo r N ew H am pshire, eight for M assachusetts, one for\nR hode Island, five for C onnecticut, six for N ew York, four for N ew Jersey, eight for Pennsylvania, one for\nD elaw are, six fo r M aryland, ten for Virginia, five for N orth C aro lina, five for South C arolina and three for\nG eorgia, for a total o f sixty-five\nn "In stead o f head co u n tin g people, [the B u reau ] uses the m ail-out form and the m ail-out/m ail-back for\xc2\xad\nmat to en u m e ra te m ost persons today \xe2\x80\x9d Id S e e also C ity o f D etro it, 4 F 3d at 1377 ( \xe2\x80\x98k[t]he C ensus Bureau\nhas not u n d ertak en a d o o r-to -d o o r cam paign sin ce the 1960 census and plaintiffs have presented no evidence\nindicating th at such an effort w ould lead to any more accurate re su lts\xe2\x80\x9d )\n\n190\n\n\x0cThe Tw enty-Second D ecennial Census\n\nsquarely within the settled recognition of the competence of Congress as a legisla\xc2\xad\ntive fact finder\xe2\x80\x9d), r e v \xe2\x80\x99d sub nom. Franklin v. M assachusetts, 505 U.S. 788 (1992).\nIt would be strange indeed to suppose that Congress \xe2\x80\x94 or its delegate, the Bureau\n\xe2\x80\x94 lacked the power to authorize a statistical adjustment that would correct the\npersistent and acknowledged undercounting of African Americans in that enu\xc2\xad\nmeration, particularly in view of the fact that the Fourteenth Amendment was pri\xc2\xad\nmarily intended for the protection of that class. See S trauder v. W est Virginia, 100\nU.S. 303, 306(1880).\nFinally, constitutional plaintiffs injured by the decision to use adjusted census\ndata for apportionment might argue that so sharp a departure from the B ureau\xe2\x80\x99s\nlongstanding practices was unjustified.14 See Senate o f California, 968 F.2d at 978\n(\xe2\x80\x9cthe method by which the Secretary is to do the count . . . is generally expected to\nbe a head count\xe2\x80\x9d); see a lso Seventeenth D ecennial Census, 41 Op. A tt\xe2\x80\x99y Gen. at 34\n(if the Director \xe2\x80\x9chas consistently followed the practice in question over a long pe\xc2\xad\nriod of time, and it has not been challenged in the Congress or elsewhere . . . his\ninterpretation ought not to be disturbed except for very weighty reasons\xe2\x80\x9d) .15 It\ncould be contended that the use of unadjusted \xe2\x80\x9cheadcounts\xe2\x80\x9d almost invariably since\nthe first census of 1790 represents a practical construction of the Enumeration\nClause which the Executive, at least absent weighty reasons, may not reverse. See,\ne.g., Smiley v. Holm, 285 U.S. 355, 369 (1932) (\xe2\x80\x9clong and continuous interpreta\xc2\xad\ntion in the course of official action under the law may aid in removing doubts as to\nits meaning. This is especially true in the case o f constitutional provisions gov\xc2\xad\nerning the exercise of political rights . . . .\xe2\x80\x9d); The P ocket Veto Case, 279 U .S. 655,\n688-90 (1929). W e believe, however, that the change in the Bureau\xe2\x80\x99s policy would\nbe upheld against an attack of this nature if there were adequate proof that statisti\xc2\xad\ncal adjustments would be feasible and would generate more accurate counts o f both\nthe total population and of minorities.\nThus, in Franklin v. M assachusetts, the Court upheld the Bureau\xe2\x80\x99s changed\npolicy of allocating overseas government personnel to the several states for resi\xc2\xad\ndence purposes for the 1990 census. The Court stated that\n\n14 The Couri has held thal \' \xe2\x80\x98[c]onslitulional challenges lo apportionm ent are justiciable " F ranklin v\nM a n a c h u selts, 505 U S at 801 W hether constitutional plaintiffs \xe2\x80\x98\xe2\x80\x98have standing lo challenge the accuracy\no f the data " tabulated by the B ureau, and \'w h eth er the injury is redressable by the relief sought," id at 802,\nare o f course separate issues. W e shall assum e here thal those conditions m ight be met. The availability of\nreview under the A dm inistrative Procedure Act (the \xe2\x80\x9cA P A ") o f the use o f adjusted data for reapportionm ent\nseem s doubtful after Franklin, how ever T he APA perm its review only o f certain "final" agency actions\nunder 5 U.S C \xc2\xa7 704 In this case, as in Franklin, it w ould appear that "the final action com plained o f is that\nof the President, and the President is not an agency w ithin the m eaning o f the Act " 505 U S at 7 9 6 W e\nnote that F ra n klin \'s ruling on the APA represented the view o f a bare m ajority o f five Justices (including\nJustice W hite), and m ight not be extended by the present C ourt\n15 For analogous reasons, if A PA review w ere available, a change in policy lo allow statistical adjustm ents\nm ight be attacked as arbitrary, capricious o r abusive o f discretion under 5 U S C \xc2\xa7 706(2)(A ) S e e M in o r\nVehicle MJrs A s s \xe2\x80\x99n v. Stale Farm M m . A u to Ins Co , 463 U S 29, 42-45 (1983) (presum ption in favor of\nsettled agency practice) W e believe thal the proposed policy change w ould survive review under that stan \xc2\xad\ndard\n\n191\n\n\x0cOpinions o f the O ffice o f L egal Counsel\n\nthe Secretary of Commerce made a judgm ent, consonant with,\nthough not dictated by, the text and history of the Constitution, that\nm any federal employees tem porarily stationed overseas had retained\ntheir ties to the States and could and should be counted toward their\nS tates\xe2\x80\x99 representation in C ongress . . . . The Secretary\xe2\x80\x99s judgm ent\ndoes not ham per the underlying constitutional goal of equal repre\xc2\xad\nsentation, but, assuming that employees temporarily stationed\nabroad have indeed retained their ties to their home States, actually\nprom otes equality.\n505 U.S. at 806.\nIn the present case, the validity o f the policy change would turn largely on the\nevidentiary showing that the use o f statistical adjustments will produce a more ac\xc2\xad\ncurate count of the population than the bare \xe2\x80\x9cheadcount\xe2\x80\x9d data alone. It appears to\nus that the factual predicate for the change to adjusted figures is adequate. As the\nSecond Circuit pointed out, the district court in C ity o f N ew York found \xe2\x80\x9cthat the\nPES-indicated statistical adjustment was feasible; that for most purposes and for\nm ost of the population that adjustment would result in a more accurate count than\nthe original census; and that the adjustm ent would lessen the disproportionate un\xc2\xad\ndercounting of m inorities.\xe2\x80\x9d City o f N ew York , 34 F.3d at 1129. Assuming that\nsim ilar findings would hold true for the next decennial census, then we see no rea\xc2\xad\nson why the Bureau, in the exercise o f its expertise and discretion, may not alter its\npast practice and adjust the census figures it obtains through a \xe2\x80\x9cheadcount.\xe2\x80\x9d 16\nA ccordingly, we conclude that the Constitution does not preclude the Bureau\nfrom em ploying technically and administratively feasible adjustment techniques to\ncorrect undercounting in the next decennial census.\n\nIII.\nThe Census A ct includes two provisions authorizing the use of statistical meth\xc2\xad\nods, including \xe2\x80\x9csam pling,\xe2\x80\x9d in conducting its statutory responsibilities. The first\nstatute, 13 U.S.C. \xc2\xa7 141(a), states that\n[t]he Secretary shall, in the year 1980 and every 10 years thereafter,\ntake a decennial census of population as o f the first day of April of\nsuch year, which date shall be known as the \xe2\x80\x9cdecennial census\ndate\xe2\x80\x9d, in such form and content as he may determine, including the\nuse of sam pling procedures and special surveys.\n\n16\nM o reo v er, in lig h t o f the B ureau\'s p osition thal the use o f a sam ple-based follow -up for enum erating\nn on-resp o n d en t h o u seh o ld s w ould improve th e accuracy o f the final count w hile at the sam e tim e saving the\nB ureau u p w ard s o f $ 3 0 0 m illion, w e can see n o constitutional o bjection to the introduction o f that procedure.\n\n192\n\n\x0cThe Tw enty-Second D ecennial Census\n\nThe second statute, 13 U.S.C. \xc2\xa7 195, authorizes, indeed mandates, the use of\nsampling, but with a limitation relating to apportionment\n[e]xcept for the determination of population for purposes o f appor\xc2\xad\ntionment of Representatives in Congress among the several States,\nthe Secretary shall, if he considers it feasible, authorize the use of\nthe statistical method known as \xe2\x80\x9csam pling\xe2\x80\x9d in carrying out the pro\xc2\xad\nvisions of this title.\nIn the past, the Bureau has taken the position that \xc2\xa7 195 prohibits statistical ad\xc2\xad\njustm ent of census data for purposes of apportionment. The difficulty centered on\n\xc2\xa7 195\xe2\x80\x99s prohibition on the use of \xe2\x80\x9csampling\xe2\x80\x9d in determining the size o f the popula\xc2\xad\ntion for purposes of apportionment. Since the scope of \xc2\xa7 195\xe2\x80\x99s exception is not\nplain from the language of the statute, we turn to the legislative history of that sec\xc2\xad\ntion.\nCongress enacted \xc2\xa7 195 in 1957, but in a form that authorized, rather than re\xc2\xad\nquired, the use of sampling; a 1976 amendment transformed the Secretary\xe2\x80\x99s\nauthorization into the conditional mandate of the current statute.17 The enacting\nCongress of 1957 considered \xc2\xa7 195 to be merely a change \xe2\x80\x9cof an administrative\nnature\xe2\x80\x9d that was \xe2\x80\x9cneeded for the timely and efficient performance of the biggest\njobs the Bureau of the Census has ever undertaken.\xe2\x80\x9d S. Rep. No. 85-698, at 2\n(1957), reprinted in 1957 U.S.C.C.A.N. 1706, 1707. The proviso gave the Bureau\nthe \xe2\x80\x9cauthority to use sampling in connection with censuses except for the determ i\xc2\xad\nnation of the population for apportionment purposes.\xe2\x80\x9d Id. at 3, rep rin ted in 1957\nU.S.C.C.A.N. at 1708.\nW hat Congress originally meant by \xe2\x80\x9csam pling\xe2\x80\x9d is not clear. In testimony in\nsupport of the 1957 legislation, Robert W. Burgess, the Director o f the Bureau of\nthe Census, explained that\n[t]he use of sampling procedures would be authorized by the pro\xc2\xad\nposed new section 195. It has generally been held that the term\n\xe2\x80\x9ccensus\xe2\x80\x9d implies a complete enumeration. Experience has shown\nthat some of the information which is desired in connection with a\ncensus could be secured efficiently through a sample survey which\nis conducted concurrently with the complete enumeration o f other\nitems; that in some instances a portion of the universe to be in\xc2\xad\ncluded might be efficiently covered on a sample rather than a com \xc2\xad\nplete enumeration basis and that under some circumstances a\nsample enumeration or a sample census might be substituted for a\n17\nAs enacted in 1957, the statute had stated that "[e]xcept for the determ ination o f population for apportionm ent purposes, the Secretary m ay, w here he deem s it appropriate, authorize the use o f the statistical\nm ethod known as \'sam p lin g \' in carry in g out the provisions o f this title \xe2\x80\x9c Pub L N o 85-207, \xc2\xa7 14, 71 Stat\n4 8 1 ,4 8 4 (1957)\n\n193\n\n\x0cOpinions o f th e Office o f L egal Counsel\n\nfull census to the advantage of the Government. This section, in\ncom bination with section 193, would give recognition to these facts\nand provide the necessary authority to the Secretary to permit the\nuse o f sam pling when he believes that it would be advantageous to\ndo so.\nA m endm ent o f Title 13, U nited States Code, Relating to Census: H earings on H.R.\n7911 B efore the H ouse Com mittee on P ost O ffice an d C ivil S ervice , 85th Cong. 7-\n\n8 (1 9 5 7 ).\nThe D irector\xe2\x80\x99s testim ony suggests that in enacting \xc2\xa7 195, Congress intended\nthat the Bureau conduct a \xe2\x80\x9ccomplete enum eration\xe2\x80\x9d or a \xe2\x80\x9cfull census\xe2\x80\x9d when deter\xc2\xad\nmining the size of the population for apportionment purposes, but that the Bureau\ncould use \xe2\x80\x9csam pling\xe2\x80\x9d in other contexts, where a \xe2\x80\x9csample enumeration\xe2\x80\x9d or a\n\xe2\x80\x9csample census\xe2\x80\x9d might be used \xe2\x80\x9cto the advantage o f the G overnm ent.\xe2\x80\x9d Read in the\nlight o f the testimony, the statute\xe2\x80\x99s preclusion o f \xe2\x80\x9csam pling\xe2\x80\x9d need not have meant\nthat statistical adjustm ent o f census figures was forbidden: Congress may well\nhave intended only that the decennial census not be a \xe2\x80\x9csample census.\xe2\x80\x9d Moreover,\na \xe2\x80\x9ccom plete enum eration\xe2\x80\x9d or \xe2\x80\x9cfull census\xe2\x80\x9d may affirmatively require statistical\nadjustm ents o f \xe2\x80\x9cheadcount\xe2\x80\x9d data to be made.\nO ur Office has previously argued that the 1957 legislative history should not be\nunderstood to preclude statistical adjustm ent. Citing the testimony quoted above,\nwe argued that \xe2\x80\x9c [sjam pling refers to a representative portion of the whole . . . while\nadjustm ent refers to additions to the whole, here the headcount. As we read the\nCensus Act, there is no statutory prohibition o f statistical adjustm ent.\xe2\x80\x9d Harmon\nM em orandum at 3 (citation omitted). The Congressional Research Service (the\n\xe2\x80\x9cCRS\xe2\x80\x9d), however, reviewed the same testimony and drew a contrary inference:\nit appears that when Section 195 was originally enacted, the De\xc2\xad\npartm ent of C om m erce took the position that an actual enumeration\nwas required for all decennial census purposes. Section 195 was\nenacted in order to relieve this restriction for purposes other than\napportionm ent by sanctioning the use o f sampling when appropri\xc2\xad\nate. There was no need to m ention other forms o f estimating popu\xc2\xad\nlation since this section was making an exception to the general\nrequirem ent o f an actual enumeration only for sampling. Therefore,\none may conclude that Section 195 was not intended to sanction the\nuse o f m ethods o f estimating population other than \xe2\x80\x9csampling,\xe2\x80\x9d and\ndid not intend to permit the use of this method for purposes of ap\xc2\xad\nportionment.\nCongressional Research Service, Library of Congress, L egal C onsiderations in\nC ensus Bureau Use o f Statistical P rojection Techniques to Include Uncounted\n\n194\n\n\x0cThe T w enty-Second D ecennial Census\n\nIndividuals For P urposes o f C ongressional R eapportionm ent (M ar. 27, 1980),\n(report prepared for Congressional use), reprin ted in P roblem s with the 1980 C en \xc2\xad\nsus Count: Joint H earing Before the Subcomm. on Com merce, Consumer, a n d\nM onetary Affairs o f the House Comm, on G overnm ent O perations, an d the Sub\xc2\xad\ncomm. on Census an d P opulation o f the House Comm, on P ost Office a n d C ivil\nService, 96th Cong. 190 (1980) (the \xe2\x80\x9cJoint Hearing\xe2\x80\x9d).\n\nThe 1976 legislation amending the Census Act, Act of Oct. 17, 1976, Pub. L.\nNo. 94-521, 90 Stat. 2459, 2464, was primarily concerned with the establishment\nof mid-decade censuses. In carrying forward (and amending) \xc2\xa7 195, we believe\nthat Congress meant that while reliance on sampling alone might be appropriate or\ndesirable for mid-decade censuses, it should not be the exclusive procedure for\ntabulating the population in decennial censuses.18 So understood, the 1976 re\xc2\xad\nenactment does not bar the statistical adjustment of the decennial census if such\nadjustments would improve their accuracy.\nThis interpretation of the 1976 legislative history is not uncontroverted. See\nGerson M emorandum at 11 (\xe2\x80\x9cC ongress\xe2\x80\x99 amendment of Section 195 in 1976 is\nsimilarly open to two alternative interpretations.\xe2\x80\x9d). The CRS, noting that both the\nCom ptroller General and the Bureau had advised Congress in 1976 o f ongoing\ndevelopments in estimating or allocating populations other than sampling, argued\nthat \xe2\x80\x9cit would be logically inconsistent for Congress to prohibit sampling for pur\xc2\xad\nposes o f reapportionment, but at the sam e time to permit the use of other tech\xc2\xad\nniques whose reliability had not yet been determ ined.\xe2\x80\x9d Joint Hearing at 188.\nBased on its review of the legislative history, CRS concluded that \xe2\x80\x9cthe use o f\ndemographic estimates for purposes of apportionment of Representatives among\nthe States . . . is prohibited by Section 195 of Title 13.\xe2\x80\x9d Id. at 192.19\nIn our judgm ent, the better view is that the Census Act does not preclude the\nBureau from engaging in statistical adjustments o f the next set of decennial census\nfigures. See Franklin v. M assachusetts, 505 U.S. at 820 (Stevens, J., joined by\n\n18 The S enate Report stated that the section o f the 1976 legislation that m odified 13 U S.C. \xc2\xa7 195 \'\xe2\x80\x9cdiffers\nfrom present language w hich grants the Secretary discretion lo use sam pling w hen it is considered a p p ro p ri\xc2\xad\nate The sectio n as am ended strengthens congressional intent that, w henever possible, sam pling shall be\nused \xe2\x80\x99\xe2\x80\x99 S R ep No 94-1256, at 6 (1976), reprinted m 1976 U S .C .C A.N. 5463, 5468\n19 One fu rth er aspect o f the 1976 legislative history should be noted In the 1970 decennial census, the\nBureau used \xe2\x80\x9csam pling" to add to the national total the figure o f alm ost five m illion people believed m issing\nfrom the h ead co u n t The B ureau estim ated that it had not co n tacted som e 10 2 m illion people, or about 5%\no f the po pulation O f this 10.2 m illion not actually counted, 4 9 m illion w ere included in the official count\nby \xe2\x80\x9c im putation \xe2\x80\x9d and allocated am ong the States for apportionm ent o f H ouse seats. Young v K lu tzn ick , 497\nF. Supp at 1321, see also G erson M em orandum at 15 ( \xe2\x80\x98\xe2\x80\x98In effect, a portion o f the population w as not ta b u \xc2\xad\nlated directly in 1970 Instead, the Bureau obtained an estim ate o f its size from the results o f statistical\nsam pling and added that estim ate to the total population count "). The d istrict court in Young inferred that\nw hen C o n g ress am ended \xc2\xa7 195 in 1976, it was \xe2\x80\x9cwell aw are" o f the B ureau\'s adjustm ent o f the 1970 census\ndata and im pliedly consented to that practice 497 F Supp at 1334-35 The court cited no direct evidence,\nhow ever, thal C ongress was aw are of, and approved, the 1970 census adjustm ent See G erson M em orandum\nat 15 M oreover, as the Bureau argued, see Young, 4 9 7 F Supp at 1334, the re-enactm ent o f t} 195 (w ith\nessentially m inor changes from 1957) could be interpreted as a ratification o f the B u re au \'s m ore traditional\npractice o f using only a headcount\n\n195\n\n\x0cO pinions o f the Office o f L eg a l C ounsel\n\nBlackm un, Kennedy and Souter, JJ., concurring in part and concurring in judg\xc2\xad\nment) (Census A ct \xe2\x80\x9cem bodies a duty to conduct a census that is accurate and that\nfairly accounts for the crucial representational rights that depend on the census and\nthe apportionm ent\xe2\x80\x9d). A non-preclusive reading gives due weight to the fact that,\nwhen it re-enacted \xc2\xa7 195 in 1976, C ongress was primarily concerned with institut\xc2\xad\ning m id -d eca d e censuses. Its prohibition on \xe2\x80\x9csam pling\xe2\x80\x9d in decennial censuses ap\xc2\xad\npears to have m eant only that while a procedure relying on \xe2\x80\x9csampling\xe2\x80\x9d alone might\nbe the m ost cost-effective means to discover the information sought in a mid\xc2\xad\ndecade census, the Bureau should not rely on \xe2\x80\x9csam pling\xe2\x80\x9d as its exclusive method of\ntabulating population figures in the decennial census. The use o f sampling tech\xc2\xad\nniques in the m id-decade census is \xe2\x80\x9cprobably a pragmatic necessity in that in\xc2\xad\nstance, given the vast mobilization of people and resources needed to conduct an\neven som ew hat accurate head count.\xe2\x80\x9d Senate o f California, 968 F.2d at 978. De\xc2\xad\nspite the additional costs entailed, however, Congress did not wish the decennial\ncensus to consist o f \xe2\x80\x9ca mere statistical m anipulation through the use of sampling\nand other techniques.\xe2\x80\x9d Id. Nothing in amended \xc2\xa7 195 p ro sc rib e d the use o f sam\xc2\xad\npling or other statistical devices in connection with the decennial \xe2\x80\x9cheadcount,\xe2\x80\x9d\nhowever, if such adjustm ents would result in a more accurate tabulation.\nFurtherm ore, in adopting the Census Act, Congress \xe2\x80\x9cleft the actual administra\xc2\xad\ntion o f a great num ber o f necessary details to the judgm ent and discretion of the\nD irector o f the Census.\xe2\x80\x9d Seventeenth D ecennial Census, 41 Op. A tt\xe2\x80\x99y Gen. at 33.\nStanding alone, \xc2\xa7 141(a), which authorizes the D irector to take the decennial cen\xc2\xad\nsus \xe2\x80\x9cin such form and content as he may determine, including the use of sampling\nprocedures and special surveys,\xe2\x80\x9d w ould seem to permit statistical adjustments, if in\nthe D irector\xe2\x80\x99s judgm ent they would produce greater accuracy. W hile \xc2\xa7 195 un\xc2\xad\ndoubtedly m akes an exception for the use of sampling in apportionment, that ex\xc2\xad\nception can be construed narrowly, as befits C ongress\xe2\x80\x99s otherwise broad delegation\nof pow er to the Bureau: the section could be taken to mean that while census fig\xc2\xad\nures used for apportionm ent may not be based on sampling alone, it is permissible\nto use population sam ples as one elem ent in a more complex operation by which a\nprior \xe2\x80\x9cheadcount\xe2\x80\x9d is corrected. Such a reading has in fact generally been adopted\nby the courts. See C arey v. Klutznick, 508 F. Supp. at 415; Young v. Klutznick,\n497 F. Supp. at 1334-35; see also Gerson M em orandum at 18 (\xe2\x80\x9cthe weight o f ex\xc2\xad\nisting caselaw \xe2\x80\x9d is \xe2\x80\x9cthat Section 195 does not preclude statistical adjustment\xe2\x80\x9d).20\nM oreover, if \xc2\xa7 195 were read as preclusive, its constitutionality would be highly\nsuspect. Because (as shown above) a non-preclusive reading is a reasonable one, it\nshould be preferred.\nSubstantial constitutional issues would arise under both the Enumeration Clause\nand the Fifth A m endm ent if \xc2\xa7 195 were construed to prevent the Bureau from ad\xc2\xad\n20\nB u t see Jeffrey S C ram ptor, Comment, Lies, D am n L ies a n d Sta tistic.1 D ispelling Som e M yths S u r \xc2\xad\nrounding the U n ited S ta te s C en su s, 1990 D et. C L R ev 71 (criticizing case law ); G erson M em orandum at\n18 C\xe2\x80\x98[w ]e can foresee a c o u rt deciding that S e c tio n 195, on its face, prohibits statistical adjustm ent").\n\n196\n\n\x0cThe Tw enty-Second D ecennial Census\n\njusting census data for apportionment. The Enumeration Clause prescribes that\nRepresentatives be apportioned to the several States \xe2\x80\x9caccording to their respective\nNumbers,\xe2\x80\x9d and it can be argued that the Clause is violated if Representatives are\napportioned on the basis of a census count that is known to be deficient, but that\ncould be rendered more accurate by feasible adjustments. See Franklin v. M a ssa \xc2\xad\nchusetts, 505 U.S. at 806 (Bureau\xe2\x80\x99s decision to allocate government personnel sta\xc2\xad\ntioned abroad to State designated as home of record \xe2\x80\x9cdoes not ham per the\nunderlying constitutional goal o f equal representation, but . . . actually promotes\nequality\xe2\x80\x9d); United States D e p \xe2\x80\x99t o f Com m erce v. M ontana, 503 U.S. 442, 461\n(1992) (Court \xe2\x80\x9cmight well find\xe2\x80\x9d that requirement that Representatives be appor\xc2\xad\ntioned by reference to the populations o f the several States \xe2\x80\x9cem bodied] the same\nprinciple of equality\xe2\x80\x9d as found in W esberry), C arey v. Klutznick, 508 F. Supp. at\n414 (language of Enumeration Clause evinces \xe2\x80\x9can intent that apportionment be\nbased on a census that most accurately reflects the true population of each state\xe2\x80\x9d);\ncf. W esberry, 376 U.S. at 13-14.\nFurthermore, \xe2\x80\x9c[t]he Fifth Amendment . . . might be thought, by analogy to the\ndecisions invalidating the malapportionment of state legislatures under the equal\nprotection clause, to require the federal government to apportion congressional\nseats . . . in accordance with an accurate estimate of the number of people in each\nstate.\xe2\x80\x9d Tucker, 958 F.2d at 1414. See, e.g., R eynolds v. Sims, 377 U.S. 533, 555\n(1964) (\xe2\x80\x9cthe right of suffrage can be denied by a debasement or dilution of the\nweight of a citizen\xe2\x80\x99s vote just as effectively as by wholly prohibiting the free exer\xc2\xad\ncise of the franchise\xe2\x80\x9d). Thus, the Second Circuit has found that the B ureau\xe2\x80\x99s deci\xc2\xad\nsion not to adjust the 1990 census figures was constitutionally suspect under the\nFifth Amendment:\n[B]oth the nature of the right and the nature o f the affected classes\nare factors that traditionally require that the governm ent\xe2\x80\x99s action be\ngiven heightened scrutiny: the right to have one\xe2\x80\x99s vote counted\nequally is fundamental and constitutionally protected, and the un\xc2\xad\nadjusted census undercount disproportionately disadvantages cer\xc2\xad\ntain identifiable minority groups. . . . That the goal o f precise\nequality cannot be achieved nationwide . . . does not relieve the fed\xc2\xad\neral government of the obligation to make a good-faith effort to\nachieve voting-power equality \xe2\x80\x9cas nearly as is practicable.\xe2\x80\x9d\nC ity o f N ew York, 34 F.3d at 1128, 1129 (citation omitted).\n\nWe need not here consider whether the Second C ircuit\xe2\x80\x99s view of the merits is\ncorrect; nor need we address the issue whether the question the court decided was\nlitigable. Suffice it to say that there would be substantial constitutional difficulties\nunder both the Enumeration Clause and the Fifth Amendment if \xc2\xa7 195 were under\xc2\xad\nstood to prohibit the Bureau from making practicable statistical adjustments that\nwould result in a more accurate tally than the traditional headcount. Section 195\n197\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nshould be construed, if \xe2\x80\x98\xe2\x80\x9c fairly possible,\xe2\x80\x99\xe2\x80\x9d to avoid those difficulties. See, e.g.,\nA sh w an der v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (citation\nomitted). Because a constitutionally unproblematic reading is justified (and has, in\nfact, been adopted by m ost courts), it should be adopted.\nA ccordingly, \xc2\xa7 195 does not preclude reliance upon technically feasible statisti\xc2\xad\ncal adjustm ents to improve the accuracy of \xe2\x80\x9cheadcount\xe2\x80\x9d data, and specifically to\ncorrect the differential undercounting of minority group populations. It also does\nnot prohibit the Bureau from conducting the non-response follow-up on a sample\nbasis, rather than sending enumerators to every non-responding household, where\nthe use o f the form er technique would improve accuracy while substantially low\xc2\xad\nering adm inistrative costs.\n\nConclusion\nN either the Constitution nor the Census Act precludes the Bureau from making\nthe proposed statistical adjustments o f \xe2\x80\x9cheadcount\xe2\x80\x9d data in the decennial census for\nthe year 2000.\n\nW ALTER DELLINGER\nA ssistan t A ttorney G eneral\nO ffice o f L egal Counsel\n\n198\n\n\x0c'


b"Maintaining Essential Services in the District of Columbia in the\nEvent Appropriations Cease\nWhen the District of Columbia is otherwise prohibited by law from spending its appropriation, the\nDistrict\xe2\x80\x99s Mayor is authorized under the Antideficiency Act to expend moneys necessary to main\xc2\xad\ntain government services bearing a reasonable relationship to the safety of human life or the pro\xc2\xad\ntection of property.\nUnder provisions of the District of Columbia Home Rule Act, the President has authonty to employ\nthe District of Columbia Metropolitan Police Force for purposes he deems necessary and appro\xc2\xad\npriate where he has declared the existence of emergency conditions.\nThe President has inherent constitutional authority to use troops or police to preserve such order in\nthe District of Columbia as may be necessary to protect federal property and functions.\n\nDecember 15, 1988\nM e m o r a n d u m O pin io n fo r t h e D e pu ty A t t o r n e y G en era l\n\nI. Introduction and Summary\nThis memorandum responds to your request of November 30,1988, for advice\nof this Office concerning the manner in which essential services may be main\xc2\xad\ntained in the District of Columbia in the event that the District is prohibited from\nexpending its appropriation. In particular, you are concerned that the failure of\nthe Council of the District of Columbia to fulfill the requirements of the \xe2\x80\x9cArm\xc2\xad\nstrong Amendment\xe2\x80\x9d to the most recent act of Congress appropriating money for\nthe District of Columbia, Pub. L. No. 100-462, \xc2\xa7 145, 102 Stat. 2269, 2269-14\n(1988) may \xe2\x80\x9chave the effect of prohibiting the expenditure of appropriated funds\nby the District after December 31, 1988.\xe2\x80\x9d In that event, you have asked us to ad\xc2\xad\nvise you \xe2\x80\x9cabout the Mayor\xe2\x80\x99s authority to continue essential services under the\nAntideficiency Act or other relevant statutes.\xe2\x80\x9d You have also asked us to address\nthe issue of the President\xe2\x80\x99s authority in such circumstances.\nWe conclude that in the event the District is prohibited from spending its ap\xc2\xad\npropriation, the Mayor will be able to maintain services that bear a reasonable\nrelationship to the safety of human life or the protection of property. We further\nbelieve that should the President declare an emergency he would also have ex\xc2\xad\npress statutory authority to employ the Metropolitan Police Force as he deems\nnecessary and appropriate. In addition, we conclude the President has the inher\xc2\xad\nent constitutional authority to protect federal property and functions.\n290\n\n\x0cII. Analysis\n\nA. Appropriations for the District of Columbia\nThe annual budgets for the District of Columbia are proposed by the Mayor to\nthe City Council. District of Columbia Self-Government and Governmental Re\xc2\xad\norganization Act, Pub. L. No. 93-198, \xc2\xa7 446, 87 Stat. 774 (1973) (\xe2\x80\x9cD.C. Home\nRule Act\xe2\x80\x9d). If adopted, a budget is then sent by the Mayor to the President for\nsubmission to Congress. Id. The most recent appropriations bill for the District\nof Columbia establishes the following condition precedent to the expenditure of\nany funds by the D.C. government:\n(b) None of the funds appropriated by this Act shall be obligated\nor expended after December 31, 1988, if on that date the District\nof Columbia has not adopted subsection (c) of this section.\n\xc2\xa7 145, 102 Stat. at 2269-14 (\xe2\x80\x9cArmstrong Amendment\xe2\x80\x9d).1\nFirst, the \xe2\x80\x9cfunds appropriated by this Act\xe2\x80\x9d applies to the \xe2\x80\x9ctotal budget of the\nDistrict of Columbia government,\xe2\x80\x9d D.C. Home Rule Act \xc2\xa7 603(a), not just the\namounts contributed by the federal government, called the \xe2\x80\x9cfederal payment.\xe2\x80\x9d\nD.C. Home Rule Act \xc2\xa7 501.2 All of these funds\xe2\x80\x94the District\xe2\x80\x99s total budget\xe2\x80\x94 are\nsubject to the following prohibition: \xe2\x80\x9c[n]o amount may be obligated or expended\nby any officer or employee of the District of Columbia government unless such\namount has been approved by Act of Congress, and then only according to such\nAct.\xe2\x80\x9d D.C. Home Rule Act \xc2\xa7 446. This language is substantially identical to the\ngeneral federal Antideficiency Act, which prohibits officers of the District of Co\xc2\xad\nlumbia government, among others, from \xe2\x80\x9cmak[ing] or authorizing] an expendi\xc2\xad\nture or obligation exceeding an amount available in an appropriation or fund for\nthe expenditure or obligation.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1341(a)(1)(A). In addition, the leg\xc2\xad\nislative history of section 603 of the D.C. Home Rule Act makes clear that it is\n1 As set forth in section 145(c) of the Armstrong Amendment, the law the District of Columbia Council must\napprove by December 31, 1988, to receive its appropriations provides:\n(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an un\xc2\xad\nlawful discriminatory practice in the District of Columbia for any educational institution that is affil\xc2\xad\niated with a religious organization or closely associated with the tenets of a religious organization to\ndeny, restrict, abridge, or condition \xe2\x80\x94\n(A) the use of any fund, service, facility, or benefit; or\n(B) the granting of any endorsement, approval, or recognition, to any person or persons that are\norganized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle,\norientation, or belief\n102 Stat. at 2269-14.\n2 Section 603(a) provides, in pertinent part'\n[N]othing in this Aci shall be construed as making any change in existing law, regulation, or basic pro\xc2\xad\ncedure and practice relating to the respective roles of the Congress, the President, the Federal Office\nof Management and Budget, and the Comptroller General of the United Stales in the preparation, re\xc2\xad\nview, submission, examination, authorization, and appropriation of the total budget of the District of\nColumbia government\n89 Stat. at 814 (emphasis added).\n291\n\n\x0cintended to include \xe2\x80\x9cthe standard anti-deficiency limitation now applicable to the\nDistrict of Columbia under the Federal Budget and Accounting Act, restated so\nas to be applicable to the new city government. It requires all District officers\nand employers, including the Mayor and the Council, not to spend or authorize\nthe expenditures of funds which would exceed available resources.\xe2\x80\x9d H.R. Rep.\nNo. 482, 93d Cong., 1st Sess. 38 (1973). See also H.R. Conf. Rep. No. 703, 93d\nCong., 1st Sess. 46 (1973). Thus, absent a specific authorization, no monies may\nbe spent by the District of Columbia government.3\nB. The Antideficiency Act\xe2\x80\x99s Exception for Emergencies\nAs noted above, the Antideficiency Act prohibits officers and employees of\nthe United States Government and the District of Columbia government from\n\xe2\x80\x9cmakfing] or authorizing] an expenditure or obligation exceeding an amount\navailable in an appropriation or fund for the expenditure or obligation.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1341(a)(1)(A).4 Thus, it would appear that if the D.C. Council were to fail to\npass subsection (c) of the Armstrong Amendment by December 31, 1988,5 the\nMayor of the District of Columbia would be in violation of the Antideficiency\nAct if he were to expend any monies other than those authorized by law to keep\nopen the D.C. government.\nThe only monies that the Mayor may spend are those authorized by an excep\xc2\xad\ntion for emergencies. Section 1342 of title 31 of the U.S. Code, entitled \xe2\x80\x9cLimi\xc2\xad\ntation on Voluntary Services,\xe2\x80\x9d prohibits:\n[a]n officer or employee of the United States Government or of\nthe District of Columbia government [from] accepting] volun\xc2\xad\ntary services for either government or employ[ing] personal ser\xc2\xad\nvices exceeding that authorized by law except for emergencies in\xc2\xad\nvolving the safety of human life or the protection of property.\n\n31 U.S.C. \xc2\xa7 1342 (emphasis added).6\nThis Office has previously opined that this section prohibits \xe2\x80\x9cgovernment of\xc2\xad\nficers and employees [from] involving] the government in contracts for em\xc2\xad\n3 We do not here refer, of course, to items for which Congress has separately authorized and appropriated monies.\n4 Subsection (B) of section 1341 forbids any covered officer or employee from \xe2\x80\x9cinvolv[ing] either government\nin a contract or obligation for the payment o f money before an appropriation is made unless authorized by law.\xe2\x80\x9d 3 1\nU.S.C. \xc2\xa7 1341(a)(1)(B).\n5 The constitutional validity of the Armstrong Amendment has recently been successfully challenged on First\nAmendment grounds in district court here in Washington. See Judge Rebuffs Congress on D.C. Gay Rights, The\nW ashington Post, Dec. 14,1988, at A1 This office has not examined the constitutional validity of the amendment.\n6 Despite the absence of this exception from the antideficiency provision in the D.C. Code, we believe that the\nexception in section 1342 applies to the District of Columbia as well We base this conclusion on the language of\nsection 1342 itself, which states that it applies to \xe2\x80\x9cofficers of the D.C. government.\xe2\x80\x9d Moreover, consistent with the\nmaxim of statutory construction that repeals by implication are not favored, see , e g , Morton v. Mancari, 417 U S\n535 (1974), we think it best not to construe section 603(a) of the D.C. Home Rule Act as repealing the application\nof section 1342 to the District of Columbia.\n\n292\n\n\x0cployment, i.e., for compensated labor, except in emergency situations.\xe2\x80\x9d Author\xc2\xad\nity for the Continuance of Government Functions During a Temporary Lapse in\nAppropriations, 5 Op. O.L.C. 1, 8 (1981) (citing 30 Op. Att\xe2\x80\x99y Gen. 129, 131\n\n(1913)).7\nThus, during a lapse in appropriations, government may use unappropriated\nfunds to \xe2\x80\x9cemploy personal services\xe2\x80\x9d for those activities bearing a \xe2\x80\x9creasonable re\xc2\xad\nlationship . . . [to] the safety of human life or the protection of property.\xe2\x80\x9d Id. at\n10. This has been thought to include, among other things, legal investigations by\nthe Federal Bureau of Investigation, legal services rendered by the Department\nof Agriculture in connection with state meat inspection programs and enforce\xc2\xad\nment of the Wholesome Meat Act of 1967, the investigation of aircraft accidents\nby the National Transportation Safety Board, and the protection and management\nof commodity inventories by the Commodity Credit Corporation. Id. \xe2\x96\xa0\nAccordingly, the Antideficiency Act does not prohibit the expenditure of funds\nby the Mayor of the D.C. government to employ personnel for the police and fire\ndepartments, the inspection of buildings, and all other activities bearing a \xe2\x80\x9crea\xc2\xad\nsonable relationship [to] the safety of human life or the protection of property.\xe2\x80\x9d\nId. at 10. We are hesitant to be any more specific in the absence of more concrete\nquestions.\n\nC. The President\xe2\x80\x99s Authority to Maintain the Functioning of the Executive\nBranch\nIn anticipation of emergencies, Congress has granted to the President express\nstatutory authority to control and direct the Washington, D.C. police force. The\nD.C. Home Rule Act expressly provides that:\nNotwithstanding any other provision of law, whenever the Presi\xc2\xad\ndent of the United States determines that special conditions of an\nemergency nature exist which require the use of the Metropolitan\nPolice force for Federal purposes, he may direct the Mayor to pro\xc2\xad\nvide him, and the Mayor shall provide, such services of the Met\xc2\xad\nropolitan Police force as the President may deem necessary and\nappropriate.\nD.C. Home Rule Act \xc2\xa7 740(a). The plain meaning of the phrase \xe2\x80\x9cnotwithstand\xc2\xad\ning any provision of law to the contrary\xe2\x80\x9d convinces us that once the President de\xc2\xad\n7 In add ition al U.S.C. \xc2\xa7 1515(b)(1)(B) provides, in relevant part:\n[A]n official may make, and the head of an executive agency may request, an apportionment. .. that\nwould indicate a necessity for a deficiency or supplemental appropriation only when the official or\nagency head decides that the action is required because of . . an emergency involving the safety of\nhuman life, the protection of property, or the immediate welfare of individuals when an appropriation\nthat would allow the United States Government to pay, or contribute to, amounts required to be paid\nto individuals in specific amounts fixed by law or under formulas prescribed by law, is insufficient.\nWe have read this section as differing from section 1342 in small ways, but have said that \xe2\x80\x9c[any] distinction, how\xc2\xad\never, is outweighed by the common practical effect of the two provisions.\xe2\x80\x9d 5 Op. O.L.C. at 9 n. 11\n\n293\n\n\x0cclares the existence of \xe2\x80\x9cspecial conditions of an emergency nature,\xe2\x80\x9d he has spe\xc2\xad\ncific statutory authorization that overrides the Antideficiency Act. Thus, even if\nthe Mayor determines that police protection for federal property is not made nec\xc2\xad\nessary by the exception to the Antideficiency Act for emergency circumstances,\nthe President may, as a matter of statutory law, demand and receive police pro\xc2\xad\ntection.\nMoreover, we believe that the President has the inherent authority to take steps\nto preserve such order in the District of Columbia as may be necessary to protect\nthe functioning of the federal government. This Office has previously opined that\na necessary adjunct of the President\xe2\x80\x99s power under Article II, Section 3 of the\nConstitution to \xe2\x80\x9ctake Care that the Laws [are] faithfully executed\xe2\x80\x9d is the power\n\xe2\x80\x9cto protect federal property and functions.\xe2\x80\x9d Memorandum for R. Kenly Webster,\nActing General Counsel, Department of the Army, from William H. Rehnquist,\nAssistant Attorney General, Office of Legal Counsel at 2 (Apr. 29,1971) (\xe2\x80\x9cRehn\xc2\xad\nquist Memo\xe2\x80\x9d) (citing Corwin, The President: Office and Powers, 130-38 (1957)).\nSee also Memorandum for Robert E. Jordan III, General Counsel, Department\nof the Army, from William H. Rehnquist, Assistant Attorney General, Office of\nLegal Counsel (May 11, 1970).\nThese opinions relied principally on In re Neagle, 135 U.S. 1 (1890). In that\ncase, the Supreme Court approved the appointment and actions of a Marshal who\nwas assigned to protect a Justice of the Supreme Court even in the absence of ex\xc2\xad\npress statutory authority for that function. In doing so, the Court recognized the\nbroad authority conferred on the President by the Constitution to protect the fed\xc2\xad\neral government. How far the President\xe2\x80\x99s inherent authority extends beyond safe\xc2\xad\nguarding the physical safety of federal property and employees is a difficult ques\xc2\xad\ntion turning on specific facts and circumstances. We have previously opined that\nthis power extends at least to \xe2\x80\x9cthe use of troops [or police] to protect the func\xc2\xad\ntioning of the government by assuring the availability of federal employees to\ncarry out their assigned duties and that troops may therefore be utilized to pre\xc2\xad\nvent traffic obstructions designed to prevent the access of employees to their\nagencies.\xe2\x80\x9d Rehnquist Memo at 1.\nD o u g l a s W . K m ie c\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n294\n\n\x0c"


b'Mechanisms for Funding Intelligence Centers\nAgencies may use the Economy Act to pay for facilities and services provided by the Terrorist Threat\nIntegration Center and the Terrorist Screening Center.\nIt is within the reasonable discretion of fiscal officers to compute the \xe2\x80\x9cactual cost\xe2\x80\x9d to be charged for\nthose facilities and services.\n\nMarch 19, 2004\n\nMEMORANDUM OPINION FOR THE LEGAL ADVISER\nDEPARTMENT OF STATE\nYou have asked for our opinion about the legality of certain mechanisms for\nfunding two intelligence centers\xe2\x80\x94the Terrorist Threat Integration Center (\xe2\x80\x9cTTIC\xe2\x80\x9d)\nand the Terrorist Screening Center (\xe2\x80\x9cTSC\xe2\x80\x9d). Letter for Jack L. Goldsmith III,\nAssistant Attorney General, Office of Legal Counsel, from William H. Taft, IV,\nLegal Adviser, Department of State (Dec. 12, 2003) (\xe2\x80\x9cState Letter\xe2\x80\x9d). We believe\nthat it would be lawful for the agencies taking part in these centers to make\npayments reflecting the services and other benefits that the centers provide to\nthem. We further believe that the precise formulas for computing the payments\nfrom each agency are, as a legal matter, left to the reasonable discretion of fiscal\nofficers.\nI.\nBoth TTIC and TSC are designed to bring together employees from various\nagencies of the government and to combine and organize the intelligence gathered\nby those agencies, so that it can best be used against the threats posed by terrorists.\nTTIC is \xe2\x80\x9can interagency joint venture that . . . integrate[s] and analyze[s] terrorist\nthreat-related information, collected domestically or abroad, and disseminate[s]\nsuch information to appropriate recipients.\xe2\x80\x9d Director of Central Intelligence\nDirective 2/4, Terrorist Threat Integration Center at 1 (May 14, 2003) (\xe2\x80\x9cDCID\n2/4\xe2\x80\x9d). It was created through the Director of Central Intelligence\xe2\x80\x99s DCID 2/4, at\n\xe2\x80\x9cthe direction of the President, as articulated in his State of the Union Address on\n28 January 2003\xe2\x80\x9d and elsewhere. Id. TTIC is housed at the Central Intelligence\nAgency (\xe2\x80\x9cCIA\xe2\x80\x9d) and is overseen by the Director of Central Intelligence, as head of\nthe intelligence community. Id. at 2; State Letter at 1. The members of TTIC\ninclude the CIA, Department of State, Department of Justice/Federal Bureau of\nInvestigation (\xe2\x80\x9cFBI\xe2\x80\x9d), Department of Homeland Security, and various intelligence\nentities of the Department of Defense. DCID 2/4, at 2.\nThe President provided for TSC in Homeland Security Presidential Directive 6,\nIntegration and Use of Screening Information (Sept. 16, 2003) (\xe2\x80\x9cHSPD-6\xe2\x80\x9d).\nHSPD-6 ordered the Attorney General to create TSC \xe2\x80\x9cto consolidate the Government\xe2\x80\x99s approach to terrorism screening and provide for the appropriate and lawful\n\n62\n\n\x0cMechanisms for Funding Intelligence Centers\n\nuse of Terrorist Information in screening processes.\xe2\x80\x9d Id. TSC is to maintain a\ndatabase related to terrorism and to respond to inquiries from federal, state and\nlocal, and foreign governments and possibly from private entities. State Letter at 2.\nThe agencies involved in operating this joint venture, which is housed at the FBI,\ninclude the Department of State, Department of Justice/FBI, and Department of\nHomeland Security. Id.\nAs we understand the arrangements for funding in the current fiscal year, \xe2\x80\x9call\nagencies that are assigning staff and relocating relevant operations to the two\nprojects [would] pay a share of the costs based on the proportion of staff being\nassigned.\xe2\x80\x9d State Letter at 2. The funds for TTIC would go to the Director of\nCentral Intelligence\xe2\x80\x99s Community Management Staff; for TSC, the funds would\ngo to the FBI. Id. You have asked whether these funding arrangements are lawful.\nIn particular, you have asked whether the Economy Act, 31 U.S.C. \xc2\xa7 1535 (2000),\nwhich allows agencies to purchase goods and services from other agencies, would\nauthorize the arrangements or whether they would conflict with an appropriations\nrider forbidding the use of any appropriation for \xe2\x80\x9cinteragency financing of boards\n(except Federal Executive Boards), commissions, councils, committees, or similar\ngroups (whether or not they are interagency entities),\xe2\x80\x9d unless the interagency\nentities have \xe2\x80\x9cprior and specific statutory approval to receive financial support\nfrom more than one agency or instrumentality.\xe2\x80\x9d Consolidated Appropriations Act,\n2004, Pub. L. No. 108-199, \xc2\xa7 610, 118 Stat. 3, 351. You have also asked whether,\nassuming the Economy Act may be used, the formulas for allocating the costs here\nwould be lawful. State Letter at 2.\nThe Justice Management Division submitted a memorandum arguing that the\nfunding arrangements, including the allocation formulas, comply with the law.\nMemorandum for M. Edward Whelan III, Principal Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Stuart Frisch, General Counsel, Justice\nManagement Division, Re: Interagency Funding of the Terrorist Threat Integration Center and the Terrorist Screening Center (Jan. 23, 2004) (\xe2\x80\x9cJMD Memorandum\xe2\x80\x9d). The Office of Management and Budget endorsed the JMD Memorandum.\nLetter for M. Edward Whelan III, Principal Deputy Assistant Attorney General,\nOffice of Legal Counsel, from Jennifer G. Newstead, General Counsel, Office of\nManagement and Budget (Feb. 20, 2004).\nII.\nAt both TTIC and TSC, the host agency provides goods and services to the\nother participating agencies so that those agencies can carry out their own\nfunctions more effectively. Each center provides a location where employees of\nthe agencies can exchange and organize information. The centers offer physical\ninfrastructure, such as office space and computers. They also offer such services as\naccess to databases that pool information supplied by the various agencies and\nother sources. JMD Memorandum at 3\xe2\x80\x934. Under the contemplated arrangements,\n\n63\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nparticipating agencies would pay for these goods and services under the Economy\nAct.\nThe Economy Act provides that the head of one agency \xe2\x80\x9cmay place an order\nwith . . . another agency for goods or services\xe2\x80\x9d if\n(1) amounts are available;\n(2) the head of the ordering agency . . . decides the order is in the\nbest interest of the United States Government;\n(3) the agency . . . to fill the order is able to provide or get by contract the ordered goods or services; and\n(4) the head of the agency decides ordered goods or services cannot\nbe provided by contract as conveniently or cheaply by a commercial\nenterprise.\n31 U.S.C. \xc2\xa7 1535(a). The amount to be paid must be the \xe2\x80\x9cactual cost of goods or\nservices provided.\xe2\x80\x9d Id. \xc2\xa7 1535(b). Payment may be made in advance, with \xe2\x80\x9cproper\nadjustment\xe2\x80\x9d later to meet the \xe2\x80\x9cactual cost\xe2\x80\x9d requirement. Id.\nAs long as the participating agencies pay the \xe2\x80\x9cactual cost of goods or services\nprovided,\xe2\x80\x9d a subject we discuss below, these requirements of the Economy Act\nwould be met. Because participating agencies use TTIC and TSC to carry out their\nown functions, the agencies\xe2\x80\x99 appropriations may be spent on the goods and\nservices that the centers provide, see 31 U.S.C. \xc2\xa7 1301(a) (2000) (appropriations\nmay \xe2\x80\x9cbe applied only to the objects for which the appropriations were made\xe2\x80\x9d), and\ntheir funds are thus \xe2\x80\x9cavailable\xe2\x80\x9d under 31 U.S.C. \xc2\xa7 1535(a)(1), as long as the\namounts of those funds remain sufficient. The President has determined that the\noperations of TTIC and TSC are important for protecting the nation against\nterrorists, and the head of a participating agency thus could \xe2\x80\x9cdecide[] the order [for\ngoods and services] is in the best interest of the United States Government,\xe2\x80\x9d as\nrequired by 31 U.S.C. \xc2\xa7 1535(a)(2). The CIA and FBI are able to provide these\ngoods and services. Id. \xc2\xa7 1535(a)(3). And the heads of participating agencies could\nreasonably determine, under 31 U.S.C. \xc2\xa7 1535(a)(4), that no commercial enterprise\ncould offer the same services as \xe2\x80\x9cconveniently\xe2\x80\x9d or perhaps even at all.\nAs shown by the Comptroller General\xe2\x80\x99s opinion in To the Secretary of Commerce, 38 Comp. Gen. 36 (1958),1 the Executive Branch has before put in place\nsomewhat similar arrangements under the Economy Act. There, the Comptroller\nGeneral concluded that the Weather Bureau could not allow a private company to\n1\n\xe2\x80\x9cThe opinions and legal interpretations of the General Accounting Office and the Comptroller\nGeneral often provide helpful guidance on appropriations matters and related issues\xe2\x80\x9d but \xe2\x80\x9care not\nbinding upon departments, agencies, or officers of the Executive Branch.\xe2\x80\x9d Applicability of Government\nCorporation Control Act to \xe2\x80\x9cGain Sharing Benefit\xe2\x80\x9d Agreement, 24 Op. O.L.C. 212, 216 n.3 (2000)\n(citing Bowsher v. Synar, 478 U.S. 714, 727\xe2\x80\x9332 (1986)).\n\n64\n\n\x0cMechanisms for Funding Intelligence Centers\n\nconnect with a natural gas line that the Weather Bureau maintained. In explaining\none ground for this decision, the Comptroller General wrote \xe2\x80\x9cthat the funds used\nfor construction of the natural gas line and distribution system were advanced to\nthe Weather Bureau by the several agencies to be benefited from the facilities\nunder section 601 of the Economy Act of 1932.\xe2\x80\x9d 38 Comp. Gen. at 38 (citations\nomitted). Therefore, he reasoned, \xe2\x80\x9csuch facilities must be regarded as property\nunder the control of those agencies on a pro rata basis even though presently in the\ncustody of the Weather Bureau under the involved arrangement,\xe2\x80\x9d and the Weather\nBureau therefore could not \xe2\x80\x9climit, restrict, reduce, abridge, or encumber in any\nmanner the pro rata interests of the other agencies in the facilities.\xe2\x80\x9d Id. (citations\nomitted). Although the Comptroller General did not directly address the legality of\nthe agency payments under the Economy Act, he appears to have assumed the\nlegality of those arrangements by concluding that the various agencies had\nacquired interests that the Weather Bureau could not lawfully abridge. Similarly,\nthe agencies taking part in TTIC and TSC would be paying for joint facilities they\nhave the right to use, as well as for services of mutual benefit. The JMD Memorandum argues that they may even acquire the same sort of property interests as\nrecognized in the Comptroller General\xe2\x80\x99s decision. Id. at 11. In any event, the\nEconomy Act would permit the arrangements.\nThe Economy Act requires that an ordering agency pay only the \xe2\x80\x9cactual cost\xe2\x80\x9d\nof the ordered goods or services. 31 U.S.C. \xc2\xa7 1535(b). Payment under the Economy Act must ensure that \xe2\x80\x9cthe performing agency is reimbursed for its costs,\xe2\x80\x9d\nLetter for David P. Holmes, Acting General Counsel, Central Intelligence Agency,\nB-250,377, 1993 WL 35613, at *2 (Comp. Gen. Jan. 28), but \xe2\x80\x9cany retention of\namounts in excess of actual costs . . . would result in an improper augmentation of\nthe [performing agency\xe2\x80\x99s] appropriations,\xe2\x80\x9d In re Bureau of Land Management\xe2\x80\x94\nDisposition of Water Resources Council Appropriations Advanced Pursuant to the\nEconomy Act, 72 Comp. Gen. 120, 122 (1993) (citation omitted). The assignment\nof costs requires an element of judgment. \xe2\x80\x9cWhile the Economy Act requires\nrecovery of \xe2\x80\x98actual costs,\xe2\x80\x99 . . . the term has a flexible meaning and recognizes\ndistinctions or differences in the nature of the performing agency, and the purposes\nor goals intended to be accomplished.\xe2\x80\x9d In re Washington National Airport;\nFederal Aviation Administration; Intra-Agency Reimbursements Under 31 U.S.C.\n686 (1970), 57 Comp. Gen. 674, 685 (1978). The question of cost computation is\n\xe2\x80\x9cone primarily for administrative consideration, to be determined by agreement\nbetween the agencies concerned.\xe2\x80\x9d Reimbursement for Interagency Services, 22\nComp. Gen. 74, 78 (1942).\nYou have raised questions about two particular aspects of the cost allocation\nformulas for TTIC and TSC: first, the allocation of costs according to the number\nof employees that each agency situates at TTIC or TSC; and, second, the inclusion\nin the assigned costs during a single year of capital expenditures for facilities to be\nused over a number of years. State Letter at 3\xe2\x80\x936. The JMD Memorandum suggests\na rationale for each of these elements in the cost formula. As to the assignment of\n\n65\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ncosts per capita, the JMD Memorandum argues that \xe2\x80\x9c[w]ith respect to operations\nsuch as TTIC and TSC, where unit pricing of outputs is not realistic, per capita and\nsimilar approaches are widely used and embraced by accountants and auditors\nalike.\xe2\x80\x9d Id. at 9. The JMD Memorandum also contends that the number of employees assigned to each center is a reasonably accurate basis for estimating the costs\nof providing facilities and equipment for these employees and for estimating the\n\xe2\x80\x9cinterest\xe2\x80\x9d (and, we take it, the demands) of the agency with respect to overhead\nresources. Id. at 10. As to capital expenditures, the JMD Memorandum argues that\nthe \xe2\x80\x9cactual costs\xe2\x80\x9d are whatever the host agency pays in a particular year and that\nthe State Department would obtain an ownership interest in the capital resources\ncommensurate with its cost allocation. Id. at 11. We do not need to resolve these\nissues. At least as long as a cost assignment method is reasonable, we believe that\nthe fiscal experts are free to use or reject it: \xe2\x80\x9cAs long as the amount agreed upon\n[by the agencies] results from a bona fide attempt to determine the actual cost and,\nin fact, reasonably approximates the actual cost,\xe2\x80\x9d there should be \xe2\x80\x9cno objection to\npayment in the amount agreed upon.\xe2\x80\x9d To Mr. Neal J. Price, Authorized Certifying\nOfficer, International Cooperation Administration, B-133,913, 1958 WL 2065,\nat *1 (Comp. Gen. Jan. 21). We believe that the methods to be used here would\nrest on \xe2\x80\x9ca bona fide attempt to determine the actual cost\xe2\x80\x9d and would be reasonable.\nIII.\nWe also believe that the proposed arrangements would not violate the bar\nagainst \xe2\x80\x9cinteragency financing\xe2\x80\x9d in section 610 of the Consolidated Appropriations\nAct, 2004, Pub. L. No. 108-199, 118 Stat. 3, 351:\nNo part of any appropriation contained in this or any other Act shall\nbe available for interagency financing of boards (except Federal Executive Boards), commissions, councils, committees, or similar\ngroups (whether or not they are interagency entities) which do not\nhave a prior and specific statutory approval to receive financial support from more than one agency or instrumentality.\nWe believe that this appropriations rider would not bar transactions under the\nEconomy Act in connection with an intelligence center, staffed by employees of\nseveral agencies, that supplies goods and services that the constituent agencies use.\nTo the extent that agencies would pay an intelligence center for goods and\nservices, they would not \xe2\x80\x9cfinanc[e]\xe2\x80\x9d the center. In the ordinary meaning of the\nword, consumers do not \xe2\x80\x9cfinance\xe2\x80\x9d a seller when they buy its products or services.\nSee Webster\xe2\x80\x99s Third New International Dictionary 851 (1993) (examples of use of\nterm meaning \xe2\x80\x9cto raise or provide funds or capital for\xe2\x80\x9d include no instances of a\nconsumer\xe2\x80\x99s providing funds through a purchase). Moreover, even if orders under\nthe Economy Act could be said to provide \xe2\x80\x9cinteragency financing,\xe2\x80\x9d the Economy\nAct is a \xe2\x80\x9cprior and specific statutory approval to receive financial support from\n\n66\n\n\x0cMechanisms for Funding Intelligence Centers\n\nmore than one agency or instrumentality\xe2\x80\x9d within the meaning of this provision.\nWhile the Economy Act does not \xe2\x80\x9cspecific[ally]\xe2\x80\x9d address interagency groups as a\nclass, let alone any particular group, it does set up a mechanism by which a single\nagency may supply goods and services to several other agencies.\nWe note that this interpretation accords with decisions of the Comptroller\nGeneral. Shortly after Congress first enacted riders on interagency financing in\n1969, the Comptroller General considered application of such a rider to the\nInteragency Institutes for Federal Hospital Administrators. To the Administrator,\nVeterans Administration, 49 Comp. Gen. 305 (1969). The Veterans Administration\nhad contracted for the services of a director of this interagency venture, and the\nagency members then shared the costs of the contract. The Comptroller General\nfound that the arrangement violated the rider, but he did not rule that the Economy\nAct would be unavailable for the purchase of goods or services from an interagency entity. Instead, he pointed to a peculiarity of the Economy Act at the time.\nUnder the version then in effect, the Economy Act specifically named those\nagencies that could obtain goods or services from a supplying agency that\ncontracted for goods or services from an outside seller, rather than providing them\ndirectly. One of the agencies involved in the particular case was not named in the\nstatute and thus lacked the necessary authority to obtain goods and services that\nthe supplying agency had obtained by contract:\nConcerning the use of the authority contained in section 601 of the\nEconomy Act as a basis for the proposed arrangement, we note that\nthat section permits only certain enumerated agencies to place orders\nwith other agencies for services which the latter agencies may be in a\nposition to procure by contract. Since the Department of Health, Education, and Welfare is not one of the enumerated agencies, [the\nVeterans Administration] may not obtain any services by that contract for that department under the authority of [the Economy Act].\n49 Comp. Gen. at 307 (citation omitted). Accordingly, the Economy Act was\nunavailable because its terms had not been met, not because the rider precluded its\nuse.\nIn a later opinion, the Comptroller General wrote that \xe2\x80\x9c[g]enerally, the restriction [against interagency financing] prohibits agencies from making voluntary\ncontributions or payments in support of interagency ventures.\xe2\x80\x9d In the Matter of\nU.S. Equal Employment Opportunity Commission\xe2\x80\x94Reimbursement of Registration Fees for Federal Executive Board Training Seminar, 71 Comp. Gen. 120, 121\n(1991) (citation omitted). Accordingly, he concluded that the restriction\ndoes not . . . prohibit an agency from paying a registration fee to\npermit an employee to attend a Federal Executive Board sponsored\nEEO training seminar if, as is the case here, the fee appears to reasonably and accurately reflect the cost incurred by the Board for the\n\n67\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nemployee to attend the seminar. So long as the payment of such a fee\ndirectly benefits the agency making the payment and the fee does not\ninclude an element designed to capture more than the costs of sponsoring the seminar, we would not view the expenditures at hand as\ninteragency financing.\nId. at 121\xe2\x80\x9322 (citation omitted). This analysis largely tracks ours here. While the\nappropriations rider bars agencies, in the Comptroller General\xe2\x80\x99s phrase, from\nmaking \xe2\x80\x9cvoluntary contributions or payments in support of interagency ventures,\xe2\x80\x9d\nit does not forbid otherwise lawful transactions in which agencies pay for the costs\nof goods or services that they receive from interagency groups. See also In the\nMatter of Career Service Awards Program, 70 Comp. Gen. 16, 17 n.3 (1990).2\nThis interpretation is not undermined by the treatment of other appropriations\nriders in the Consolidated Appropriations Act that refer to the ban against\ninteragency financing. These riders state that \xe2\x80\x9cnotwithstanding . . . section 610,\xe2\x80\x9d\nfunds \xe2\x80\x9cshall be available for interagency funding\xe2\x80\x9d of specific ventures, or they use\nsimilar formulations.3 If the funding arrangements under these provisions necessarily involved cost-based transactions under the Economy Act in which several\nagencies paid, it might be argued that the separate exceptions were necessary to\novercome the bar on \xe2\x80\x9cinteragency financing\xe2\x80\x9d under section 610 and that the\nEconomy Act therefore did not constitute \xe2\x80\x9ca prior and specific statutory approval\nto receive financial support from more than one agency or instrumentality\xe2\x80\x9d within\nthe meaning of section 610. However, the Office of Management and Budget\ninforms us that, so far as it is aware, the allocation of costs to agencies under these\nprovisions is not based on actual cost of goods or services supplied. For example,\nthe funding for interagency councils under section 627 comes from contributions\n2\nIn another opinion, the Comptroller General disputed the use of a cost allocation method that\n\xe2\x80\x9cdoes not necessarily relate\xe2\x80\x9d to the goods and services actually provided and \xe2\x80\x9cdo[es] not identify what\ngoods or services each participant actually receives.\xe2\x80\x9d In re Invoice to IRS for That Agency\xe2\x80\x99s Share of\nCFC Solicitation Expenses Incurred in Northern Utah in 1985, 67 Comp. Gen. 254, 258 (1988). The\nState Letter observes that the opinion first found the rider to forbid the arrangement in question and\nthen concluded that \xe2\x80\x9c[e]ven if one could successfully argue that this restriction did not apply to the\nvoucher in question, payment on this voucher would still have to satisfy\xe2\x80\x9d the restrictions of the\nEconomy Act and the other statutory restrictions on the transfer of funds. CFC Solicitation Expenses,\n67 Comp. Gen. at 257. As the State Department reads the opinion, \xe2\x80\x9cthe Comptroller General . . . discusses the Economy Act, but only as imposing additional requirements that would have to be satisfied,\nif the prohibition on inter-agency funding did not apply.\xe2\x80\x9d State Letter at 2. We believe that the\nComptroller General\xe2\x80\x99s later opinion on fees for equal employment opportunity training, discussed in\ntext, more accurately states the governing legal principles.\n3\nSection 615 covers certain \xe2\x80\x9cnational security and emergency preparedness telecommunications\ninitiatives\xe2\x80\x9d; section 626 deals with the Joint Financial Management Improvement Program; section 627\nconcerns the Policy and Citizen Services account at the General Services Administration; section 630\napplies to \xe2\x80\x9cspecific projects, workshops, studies, and similar efforts to carry out the purposes of the\nNational Science and Technology Council\xe2\x80\x9d; and section 648 deals with the transfer of money for the\noperation of Midway Atoll Airfield. Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118\nStat. 3, 353, 356, 357, 362.\n\n68\n\n\x0cMechanisms for Funding Intelligence Centers\n\nunder a formula according to which twenty percent of the funding is drawn from\nidentical contributions from all twenty-four agencies involved, forty percent of the\nfunding is based on each agency\xe2\x80\x99s information technology spending as a percentage of the total for the twenty-four agencies, and another forty percent is based on\neach agency\xe2\x80\x99s discretionary budgetary authority as a percentage of the total for the\ntwenty-four agencies. The \xe2\x80\x9cnotwithstanding\xe2\x80\x9d provisions in the statute thus permit\nfunding arrangements that otherwise would constitute \xe2\x80\x9cinteragency financing\xe2\x80\x9d as\nwe have interpreted that term here\xe2\x80\x94the payment of contributions that do not\nreflect actual costs. In any event, even if the funding arrangements under some or\nall of these provisions did necessarily involve cost-based transactions under the\nEconomy Act in which several agencies paid, we do not believe that this fact\nwould overcome the other arguments establishing that use of the Economy Act in\ncost-based transactions is not \xe2\x80\x9cinteragency financing.\xe2\x80\x9d4\nWe therefore conclude that agencies may use the Economy Act to pay for\nfacilities and services offered by TTIC and TSC and that it is within the reasonable\ndiscretion of fiscal officers to compute the \xe2\x80\x9cactual cost\xe2\x80\x9d to be charged for those\nfacilities and services.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\nWe do not believe that the authority under section 648, which concerns the Midway Atoll Airfield, is being used at all. We understand that the Department of Transportation has used the Economy\nAct to place an order with the Department of Interior for operation of the facility. In this instance, the\nagencies did not use the authority in section 648 to engage in \xe2\x80\x9cinteragency financing\xe2\x80\x9d under any\nplausible understanding of the term, because only one agency bore the entire cost. The arrangement,\ntherefore, does not illuminate what the bar on \xe2\x80\x9cinteragency financing\xe2\x80\x9d might mean.\n\n69\n\n\x0c'