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The US Commerce Department (which is over the US Census Bureau) announced plans to ask people whether they are U.S. citizens during the 2020 Census. Commerce stated that they made this decision after the Department of Justice requested inclusion of the question "to better enforce the Voting Rights Act."

Certainly the Bureau has the general authority to gather demographic data including citizenship status, but U.S. Code, Title 13, Section 9 reads:

Copies of census reports … shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding. [emphasis added]

Since the explicit reason for including the question has been publicly declared to be for use as an aid in enforcing the Voting Rights Act wouldn't such intent make this question a flagrant violation of the above US Code?

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    ”Either that or else it seems like it would be a flagrant waste of the taxpayers' money since all the data collected can not be used by the DOJ in any investigation or legal proceeding, which sort of makes it ultimately useless as an "enforcement" tool.” Incorrect. Helping enforcement is not synonymous with introducing a single report into evidence in a specific enforcement proceeding. For instance, nothing in the law forbids the use of census data to allocate enforcement resources, or forbids the use of aggregate statistics to help determine when minority voting power is diluted.
    – cpast
    Mar 27 '18 at 5:05
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    I am not sure that the cited Code would even allow aggregate data to be used for law enforcement. After all, at what level of granularity would the data be available to the DOJ? Data broken down by census track would effectively paint bullseyes on specific neighborhoods, whereas data broken down by state would barely shift any current personnel assignments. The way I read the Code is that the data cannot be made available to DOJ in any more detailed level than it is to the general public.
    – O.M.Y.
    Mar 27 '18 at 5:26
  • First, personnel allocation is not an action, suit, or other judicial or administrative proceeding (those things refer to trials and trial-like proceedings). Second, the Census already releases data to the public broken down by location at a far more narrow level than state. Census data is already granular enough to create legislative districts based on it. Third, the section only talks about individual reports, not statistics. Statistics are routinely used in proceedings about apportionment and districting, this being the primary reason to have a census.
    – cpast
    Mar 27 '18 at 15:54
  • Also, removed conlaw tag -- this question is not about constitutional law, but Census statutes.
    – cpast
    Mar 27 '18 at 16:51
  • cpast, you said:" the Census already releases data to the public broken down by location at a far more narrow level than state." - census data for INDIVIDUALS is protected for 70+ years. Aggregated census data (that does not identify individuals) may be available sooner. I just wanted to qualify/clarify your statement
    – BobE
    Mar 27 '18 at 16:59
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13 USC 9 only allows "sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports", so a report from John Doe could not be extracted and scrutinized – it can't be used to determine whether John Doe has 2 bathrooms. Information from all of the reports can be used to report statistics, such as the number of residents in such-and-such area (for example, state) that have 2 bathrooms.

Whether or not this is a flagrant waste of taxpayer money is a political question, not a legal one. We don't know what DoJ's rationale is, and there is little point in speculating what they hope to accomplish. However, if John Doe reports on his census report that he is not a citizen and yet John Doe is a registered voter, the census report cannot be used in legal proceedings against him, without his consent.

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    The "waste" part of my question was a bit of an afterthought and I am going remove that. My primary question goes to the issue of does the stated intent to use the data for enforcement run afoul of the prohibition to not use the data for "any purpose in any [...] judicial or administrative proceeding" ? While not identical I think the recent case where Pres. Trump's stated intent to "ban Muslims" caused his Executive Order to be declared illegal by the courts. Could this be a similar problem?
    – O.M.Y.
    Mar 27 '18 at 5:28
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    There is no interpretation of the Muslim ban statement that does not entail an intent to violate the 1st Amendment. There is a credible interpretation of the announced policy, whereby such anonymous statistics are used to discern whether the number of votes exceeds the number of citizens in district X.
    – user6726
    Mar 27 '18 at 15:55
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    To be fair, the GOP's official position was an "interpretation" that the ban was strictly related to national security and did not "entail an intent to violate the 1st Amendment", but the pubic statements of Pres. Trump were viewed by the courts to show this was not true.
    – O.M.Y.
    Mar 28 '18 at 13:11
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You're reading section 9(a) to say far more than it actually says. What section 9(a) is meant to do is keep individual Census responses confidential. Let's go over the full subsection:

(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, or local government census liaison, may, except as provided in section 8 or 16 or chapter 10 of this title or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 or section 2(f) of the Census of Agriculture Act of 1997—
(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or
(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or
(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.

This restricts employees of the Department of Commerce and local officials who help administer the Census. It says that the Census data can't be used for anything except gathering statistics, that the department can't publish statistics that are so fine-grained that they let you figure out the data for a particular individual or establishment (establishments are things like companies), and that only Commerce employees may view the individual reports. But compiling the information to report, say, how many people of a certain type live in each relatively small area is acceptable, because that's the statistical purpose for which the data is supplied. The data collected from all households in the decennial census is released down to the block level. For a sense of what that means, my house in the suburbs is in a census block that's less than 9 acres and had less than 25 people in less than 10 households as of the 2010 census.

The law continues:

No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.

We've seen that other agencies can't get individual reports from the Commerce Department. This says they can't demand a copy from the person who filled it out either. Likewise, individual reports can't be used in any "action, suit, or other judicial or administrative proceeding." If push comes to shove, it's unlikely that something like personnel allocation would be considered a "proceeding." And in any event, this is only restricting individual reports retained by an individual or establishment. Data published by the Census Bureau is not an individual report retained by an individual or establishment.

Census data is routinely used for statistical purposes in trials. For instance, the Voting Rights Act forbids states from drawing districts to dilute minority votes. In enforcing this, the Justice Department needs to know the distribution of people of each race (not just how many are in each district, but how they're distributed within the district to help evaluate whether lines were drawn to split up clusters of minorities). It does this using census block data (districts tend to be drawn along census block lines), and that data can be used in court.

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    Thank you for the details you provided. However this now makes me even more concerned. If "statistical data" is released at a "block level" then what is to prevent the DOJ/ICE from using that data to create a high-priority target list of those blocks with the largest count of non-citizens? And since we have not seen the exact wording of the question, if it asks "What is your status with immigration?" then the numbers could be even more narrowly focused to those blocks where significant numbers of surveys were checked "Other" (assuming it does not include an option for "Undocumented").
    – O.M.Y.
    Mar 28 '18 at 13:27
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    Additionally, it would be trivial for the statistical census data to be cross checked with INS records. Add up all the known immigration status data for ALL the houses in a single block and then compare that with the census data reported for that same block. Any discrepancy makes that block a target for surveillance and action. For example: Census data on a block with manufacturing establishments could be analyzed and if there are more green cards in the census data than in INS records that could be used to justify a sweep looking for fake green cards and undocumented workers.
    – O.M.Y.
    Mar 28 '18 at 13:42
  • @O.M.Y. Nothing prevents the Census data from being used that way, but it'd be pretty dumb to just prioritize areas with lots of noncitizens when most noncitizens are in the US legally. Also, jumping to the assumption that a question about citizenship being added to enforce the Voting Rights Act would ask about immigration status is quite the leap. It's pretty easy to see how citizenship data can help VRA enforcement, as it'd let DOJ focus on district lines drawn to dilute the voice of minority citizens. It's much harder to see how immigration status relates to the VRA.
    – cpast
    Mar 28 '18 at 16:33
  • Quite true on the citizenship vs immigration status issue. If the question is "Are you a U.S. citizen? (Yes/No)" then there is little cause for concern. If on the other hand the question asks "What is your citizenship status?" with choices that actually are citizenship mixed with immigration status ("US Citizen", "US National" [non-citizen], "Applicant for citizenship [this is a sneaky one]", "Permanent Resident [a potential applicant for citizenship]", etc) then the opportunity for abuse is high. I guess we will have to wait and see what the EXACT wording of the question is.
    – O.M.Y.
    Mar 30 '18 at 11:54

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