The Constitution, in Article I, Section 2, Clause 3 specifies that a census of the US should be taken every ten years and gives Congress the power to specify the specifics. But what happens if, for any reason, the census can't be completed, or even conducted?

For some specific (non-exhaustive) possibilities, what if:

  1. ... the President fires and does not replace the leadership of the Census Bureau, or otherwise prevents it from doing its job?
  2. ... Congress doesn't provide any funding, either deliberately or due to a budget impasse and government shutdown?
  3. ... the Census Bureau attempts to fulfill its job, but mishandles the data and loses its records? (Such as "hard drive crash which corrupted the backups" or ransomware.)
  • 1
    Just to be clear, I'm more interested in the overall answer than the specific scenarios I listed. I just wanted to provide some examples of how it might fail to be conducted. If you want to answer them specifically, too, I don't have a problem with that.
    – Bobson
    May 19, 2017 at 23:26

2 Answers 2

  1. First, the apportionment basis is Section 2 of the Fourteenth Amendment:

    Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. ...

    and Article I, Section 2 of the United States Constitution:

    Representatives and direct Taxes shall be apportioned among the several States ... according to their respective Numbers ... . The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years.

    As such, the Census is constitutionally required; and as such, there's a very likely possibility that SCOTUS would find any actions by either Executive or Legislative branch that interfere with the Census as unconstitutional (such as withholding funding or refusing to hire reasonable # of employees).

  2. However, one thing to note is that, there's no Constitutional directive on HOW the Census is to be conducted.

    US Code 13 that regulates the Census pretty much says that Census Bureau gets to decide on how the census is conducted:

    The Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title. (Aug. 31, 1954, ch. 1158, 68 Stat. 1013; Pub. L. 94–521, § 4(a), Oct. 17, 1976, 90 Stat. 2459.)

    As such; it's entirely possible that a simple Internet survey could qualify to fulfill the Constitutional requirement. Or some sort of statistical fiddling with prior census result based on projections and sparser polling, although anything proposed would have to be vetted by SCOTUS, presumably evaluated by experts for validity as SCOTUS input.

  3. Additionally, Congress is of course at will to change US Code 13 in the first place, to do whatever they want as long as it passes SCOTUS's constitutional scrutiny.

  • 1
    This might deserve to be a different question, but if a budget is passed that doesn't fund the Census Bureau, what can SCOTUS do to counter that? Can they actually redirect funds to make it happen, or would they just be able to reject the entire budget as unconstitutional and force Congress to re-pass one? More generally, how can the court force an action to be taken, rather than just prohibiting one?
    – Bobson
    May 21, 2017 at 1:43
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    @Bobson As I understand it, a budget bill is basically law. If SCOTUS finds the budget (bill) to be unconstitutional, it is discarded. In the case of a budget, it would likely require completely redrawing it, or simply adding an amendment for funding for the Census. I assume in extreme cases, should Congress refuse to add an amendment, SCOTUS could find the entire budget unconstitutional and the US would have no budget.
    – SGR
    May 23, 2017 at 9:42
  • @Bobson - I suspect SGR is correct but worth asking as a question on its own
    – user4012
    May 23, 2017 at 13:10
  • In support of #1, a federal court would have broad discretion to compel public officials to make it happen, potentially imposing its own solution when the Commerce Department fails to act, by any of a great many reasonable remedies, just as they do in redistricting cases.
    – ohwilleke
    Jan 4, 2022 at 21:10
  • Second nitpick: A federal court has to weigh in. It doesn't have to be SCOTUS and never is in the first instance. Every court has jurisdiction to interpret the constitution and every federal court has the authority to apply federal law and the constitution to the government of the United States.
    – ohwilleke
    Jan 6, 2022 at 21:20

I don't know that there's anything official on that, but we do know that the US Census is used to draw congressional districts and award House representation. Without a new Census, you'd be stuck in the old apportionment and districts (in cases of mechanism failure, whatever is in place at that time tends to be what goes until such time as the mechanism can be fixed). That would favor states with shrinking populations and disfavor states with growing ones. That wouldn't have a huge effect for the first missed one (typically only a few seats move), but that would only grow over time. Either Congress would have to mandate it be done to fix it (by then it would have grown into a partisan issue, with one side standing to lose seats), or directly reapportioning the districts themselves (would be interesting to see SCOTUS try to sort that one out).

  • 1
    This is not correct - the apportionment is constitutionally mandated to be based on the decennial Census.
    – user4012
    May 20, 2017 at 11:01
  • 1
    @user4012 Correct. But the question presumes that doesn't happen. Trying to do reappointment without a valid census would be harder than just leaving them as-is until you get a Census done.
    – Machavity
    May 20, 2017 at 12:57

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