Dept of Commerce v. U.S. House of Representatives - Oral Argument

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument now in No. 98-404, the Department of Commerce v. the United States House of Representatives, and William Jefferson Clinton v. Matthew Glavin.

General Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

Article I, Section 2, Clause 3 of the Constitution requires that representatives be apportioned based on the number of persons in each State.

And to effectuate that requirement, Congress is directed to provide for, quote, the actual enumeration, to occur every 10 years, in such manner as Congress shall by law direct.

In modern times, as the census has faced increasing challenges, Congress has delegated authority to the Secretary of Commerce to conduct a census in such form and content as he may determine.

Following exhaustive study and the unanimous recommendation of the Census Bureau, the National Academy of Sciences, and other professional groups, the Secretary has determined that for the 2000 census, employing statistical sampling, in addition to other means of enumeration, will best achieve the constitutional goal of determining the number of persons in each State.

The important...

Chief Justice Rehnquist: General Waxman, I understand there are... there are two kinds of statistical sampling involved here.

And I want to ask you about the first one... rather the second one... which I... I gather is a series of 750,000 housing units, selected randomly.

And they will then be used to adjust the figures from census tracts?

Mr. Waxman: That's correct, Mr. Chief Justice.

If... just a small correction in the premise of the question.

There are three methods of sampling that the Census Bureau proposes to conduct.

One is not challenged by... at least directly... by any of the plaintiffs in this case.

But the third one, the integrated cover-ment measurement portion of the survey, is actually quite similar in... in the means by which it will done... is going to be done... as in 1990, the post-enumeration survey that the Court discussed in Wisconsin v. City of New York.

That is, after the first two phases of the census are completed and there is an initial enumeration roster with respect to every census block and tract, the...

Chief Justice Rehnquist: Well, that initial enumeration is first based on responses and then based on follow-up interviews?

Mr. Waxman: That's correct.

There are... there are three phases, Mr. Chief Justice, to the 2000 Census.

The first phase will be a... a series of mailings to every individual household, an 800 number for people who don't want to respond by mail to call in their answers, the distribution of questionnaires in malls and public libraries and other places.

That's the first phase.

The second phase involves what's called non-response follow-up.

And that includes both an effort to physically visit a certain number... up to 90 percent of the houses in each census tract, and the use of statistical sampling to impute the population characteristics with respect to those homes which did not send in... mail in their census information and were not located personally.

Justice Scalia: But when you say up to 90 percent, there... there is going to be an intentional effort not to do 100 percent?

Mr. Waxman: No, there... Justice Scalia, there is an intentional effort in this census to obtain census information from every household that is known to exist by mailings, by a Be Counted program, by telephone, by the Internet.

The Census Bureau has determined that in order to make the population totals for apportionment purposes more accurate, it will not have enumerators physically go to every single house that did not respond to those initial requests for information, but rather will go to enough houses so that 90 percent of every household in each census tract has been the subject of a, quote, physical count.

And it will then use statistical sampling on a completely random basis... and I think this is key, because none of the plaintiffs have alleged, nor could they, that they have been injured in any way by the effort... by the attempt to use sampling...

Chief Justice Rehnquist: Let... let's... let's stay on the question of describing this... this procedure.

Mr. Waxman: Yes, sir.

The... once the initial enumeration roster is completed by means of the mail-in, the non-response follow-up, which is both physical and sampling, the national vacancy check, which uses sampling to impute population, there will be what's called an initial enumeration roster.

The Bureau will then conduct, much as it did in 1990, but on a much larger, more sophisticated scale, using a completely separate cadre of individuals, it will, on 25,000 blocks of the country, selected in advance according to methodologies that have been specified, survey intensively every single one of those households to determine the extent to which the people show up the second time that weren't identified the first time or were identified the first time and weren't identified the second time.

And any discrepancy in information that any person gives will be the subject of a follow-up visit.

The results of that procedure, the inter... integrated coverage measurement, it is in effect a quality check on the initial enumeration roster.

And using the system of dual-system estimation that the Court described better in Wisconsin v. City of New York than I could standing here, it will adjust the results of the initial enumeration roster to more accurately reflect the total number of persons in each State, district...

Chief Justice Rehnquist: So... so you will get the initial returns from the census.

And then you send... send out follow-up people to try to contact those who were not contacted.

But then you use this to kind of change the results from that, as I understand it?

Mr. Waxman: Yes.

The in... integrated coverage measurement is a means, a highly reliable statistical means, of correcting for inaccuracies.

That is, improving the quality of the... the results of the initial enumeration roster.

Chief Justice Rehnquist: How can you know in advance that there are inaccuracies?

Mr. Waxman: Justice... Chief Justice Rehnquist, there... every effort to enumerate the population, from the 1790 Census until now, has produced only an estimate of the true population totals in each State.

That's agreed.

That's understood.

We now have the means... the... the Census Bureau and statisticians have developed the means, really beginning in the 1940's and on, to be able to ascertain just how far from the true number the enumeration efforts are... are...

Chief Justice Rehnquist: But how can you know... but if... if you have this census, which is a very... and it's inaccurate, it doesn't reflect the, quote, true number, how... how do you know what the, quote, true number, close quote, is?

Mr. Waxman: Well, the... I recall that was the... that was the question that was asked of my predecessor in City of New York v. Wisconsin, as the subject of an explanation in the Court's opinion in that case.

And I don't think I can improve upon it.

But the demographers and statisticians have means for very accurately estimating both what the national population is in the country, using something called demographic analysis, and sub-national population totals, using a combination of demographic data and the results of prior censuses.

Justice Souter: Well, why do we need... why do we need a census then?

Mr. Waxman: Well, because there... there is a requirement in the Constitution that every 10 years the respective number of persons in each State be determined.

That is the constitutional goal.

And the actualization of that goal is the actual enumeration, which is done every 10 years and which must be done in the means... manner by which Congress directs.

Now...

Justice O'Connor: Well, most people would think that actual enumeration meant a count.

I mean that... that's what immediately springs to mind.

And how do you get around that?

Mr. Waxman: Well, I think it depends how you define... actual enumer... most people would think actual enumeration means a count in the sense of determining the number of persons.

If... if I am told to conduct an actual enumeration of the people in Camden Yards during an Oriole... Orioles game that I'm at, and I'm given 30 minutes, the best means that I may have to do that is by a statistical sampling of some sort, rather than trying to count people one by one.

I...

Justice Scalia: And you would call that an actual enumeration; you sort of scan Camden Yards and say, it's the best I can do, it's 25,000, you would call that an actual enumeration?

Mr. Waxman: Well, the wordsI don't think would come up very likely in the context of Camden Yards.

But if one is talking about what the constitutional phrase means, Justice Scalia, I think it's very, very important to look at the actual wording of the constitution... this constitutional clause, which is included on page 1a of each of our opening briefs.

The first sentence states the constitutional goal.

That is, that you base apportionment on the total number of persons in each State.

The second sentence actualizes that goal.

The very first words of the second sentence says: The actual enumeration

That is the... the... the determination of the number of persons in each State.

And by what manner shall it be conducted?

Every 10 years and in the manner by which they shall choose.

Those are the words of the Constitution.

And in fact...

Justice Scalia: What... what...

Mr. Waxman: they very... I'm sorry.

Justice Scalia: What, in your judgment, is excluded by the adjective?

mean they could have said.

t seems to me they went out of their way to say an actual enumeration.

Mr. Waxman: Well, the... the...

Justice Scalia: If... if... if estimation by statistics or anything else is not excluded, what is excluded, rolling the dice or... or what?

Mr. Waxman: Well, we know for...

Justice Scalia: It says.

hat is the adjective there... what does it bring to our... to our decision here?

Mr. Waxman: as defined then as it is now as that which comprises action.

That is, it is... the enumeration will really be done.

The data will be collected by the Federal Government every 10 years and tabulated to determine the number of persons in each State.

Justice Scalia: You say it means not a phony enumeration, not a false enumeration; is that... is that all it means?

Mr. Waxman: Well...

Justice Scalia: It has to be a real enumeration?

Mr. Waxman: You see, that is our understanding of what it means.

It... it is an emphatic adjective.

They could have said.

Justice Scalia: ut for that we would have thought a phony enumeration would do, had they not put in?

Mr. Waxman: don't think so.

I think if they had said

"The enumeration shall be conducted every 10 years. "

it would have been clear in light of the goal, and particularly in light of the concerns that were expressed during the proceedings of the Constitutional Convention, that reliance not be had on existing State records, or efforts by individual States to produce...

Justice Souter: All right.

Isn't... isn't that sort of the clue that... that the wordis not so much excluding as contrasting with what follows it?

And what follows it is not so much an arbitrary assignment of representatives, but an assignment which I suppose was based, just as you said, on State records and what everybody more or less guessed.

Mr. Waxman: That's...

Justice Souter: Isn't that a plausible explanation for why the wordis not redundant here?

Mr. Waxman: Yes.

In fact, it... it... the records of the... in the records of the proceedings, the... the phrase is actually used,in contradistinction to, quote, conjectural ratio, which is what the framers understood they were doing in the first apportionment.

That is...

Justice Ginsburg: General Waxman, do you mean actual enumeration is to be contrasted with what the article says, that is, actual enumeration in comparison to three from Mass... three from New Hampshire... was it... eight from Massachusetts, 10 from Virginia... that's the comparison for the actual enumeration in place of what was going... the enumeration going in?

Mr. Waxman: That's right.

The... the actual enumeration refers to the... a good faith, empirical effort to determine the number of persons within each State.

Which is the goal of the first sentence of Article I, Section 2, Clause 3.

And the record of the proceedings, the... the various debates and the... and the successive drafts of what became the Census Clause, are all focused on determining the number of persons.

Edmund Randolph's original suggestion and the draft Constitution that was approved by the Convention spoke of determining the number of persons.

And none of the drafts that occurred in between and none of the debates that occurred in between differed materially from that or evidenced any concern whatsoever about the means by which that number would be determined except in two respects: One, that it be conducted at preset regular intervules... intervals, which eventually became 10 years; and, two, that it be conducted in a manner in which they... that is, Congress... shall determine

Chief Justice Rehnquist: Well, was there much... much in the way of an option or alternatives in 1787 to conducting a door-to-door census?

Mr. Waxman: There certainly were not the options that are available now in many, many respects.

They didn't have available to them, as we have had since 1940, imputation techniques.

They didn't have...

Justice O'Connor: Do we know how the early censuses were taken?

Mr. Waxman: We... we have a very good record of how the early censuses were taken.

And there is a... a scholarly text that is cited in our brief... I think it's called 200... that goes quite methodically through.

But if you look at the first Census Act, the Census Act of 1790, the very first sentence in that Act... it's Chapter 2, Section 1... essentially equates enumeration with, quote, cause the number of inhabitants to be taken.

And when it then goes ahead and talks about the oath that the marshals who would be collecting this information from each household had to take, that they would make a just and perfect enumeration and transfer the enumeration to Washington, it then goes on, in Section 3, to make clear that what it is that they were transferring was, quote, the aggregate amount of persons.

And so we think those two sources, plus the Capitation Clause of the Constitution, which equates the actual enumeration with census...

Justice Scalia: They had... they had estimation techniques then...

Mr. Waxman: They...

Justice Scalia: as we have it now.

Now you may say they were cruder, but they certainly had estima... they must have used estimation techniques for the initial allocation among the States, right?

Mr. Waxman: That... well, it prob... apparently, according to the records of the Convention, was somewhat cruder than that.

Because when they actually did the initial allocation, some States were given additional members based on the representation that their population would grow or was likely to grow.

That's why it was a conjectural ratio.

But, Justice...

Justice Scalia: But you began... you began with some estimation, right?

Mr. Waxman: Justice Scalia...

Justice Scalia: And the difference now is that we're better at estimating than we were then, and that makes estimation okay?

Mr. Waxman: The... the point here... I think that there is... it's easy to say, you know, they talked about an actual enumeration, not an actual estimate.

But if one understands the wordsas an empirical, good faith process to come up with the best approximation of the number of persons.

It may very well have been... indeed, I think it was true, as Justice O'Connor suggested... that the best means for doing that in 1787 and 1790 and in successive decades was to get Federal employees to go visit ho... as many homes as possible, and ask them how many people are in... in those houses.

Justice Scalia: I would think just the opposite, frankly.

I would think that the difficulty of finding people in the early frontier days was much greater than the difficulty of... of actually finding the people today.

You... you'd have to send somebody out into the wilderness to see how many mountain men are out there.

Why not... you know, why not estimate how many... how many went through St. Louis, or whatever?

It seems to me an estimation would have been much... much more likely to be used then than it is now.

Mr. Waxman: Well, I... with all respect, I don't know how likely it would have been to have been used then, Justice Scalia.

It's a long, long time before I have any empirical, firsthand knowledge.

But I do know that there is... that the Secretary has determined, with the su... overwhelming support of the scientific statistical community, that the actual number of persons in each State will be determined with a significantly higher degree of accuracy by the use of the science of statistical probability than the estimate that will be produced relying on methods that have been...

Justice Breyer: Is that... is that what we're interested in for purposes of apportionment?

I mean I take it that there is no objection to sampling for... nobody objects, everybody uses sampling for purposes of giving money out...

Mr. Waxman: The... the... under Section 141(a) of the...

Justice Breyer: Yeah...

Mr. Waxman: the Constitution doesn't speak to...

Chief Justice Rehnquist: No.

Justice Breyer: But I... I mean here, there is no argument among anybody.

Everybody agrees, nobody disagrees with you, you can use sampling for giving out money.

We're only concerned with allocating 435 representatives among the States?

Mr. Waxman: Correct.

Justice Kennedy: All right.

Justice Breyer: As long as that's the case, I take it, even if we were more accurate in five of the States and a little more accurate in two of the States, in terms of getting to what you call the real number, that would still be worse for purposes of apportionment.

Because if we're off by 50 percent across the board, it works perfectly.

If we're off by 80 percent across the board, it works perfectly.

It's the same division of representatives.

Mr. Waxman: Your... your...

Justice Breyer: It's... it's only if... it's only if you... you get differences in the errors that it begins to make a difference.

Mr. Waxman: If I understand your point...

Justice Kennedy: Yeah.

Mr. Waxman: it's precisely the same basis for Secretary Mosbacher's determination in not... in 1991, not to adjust the physical enumeration with the results of a post-enumeration survey.

And we were here just a few years ago defending the reasonable... the lawfulness of that determination as a reasonable determination, based on the fact that the Secretary was unable to conclude that although the... the total popu... there would be greater total accuracy if the physical enumeration results were adjusted, he could not conclude that there would be greater distributional accuracy.

Justice Breyer: All right.

So now you're saying there... there... all these scientific groups agree that if you're allowed to go ahead with this sampling there will be greater distributional accuracy; that is to say, the relationship of Indiana and California will be, compared one to the other, closer in terms of accuracy?

Mr. Waxman: That... that is precisely the point.

Justice Scalia: Yeah.

Mr. Waxman: And not only has the Census Bureau and three National Academy of Sciences panels, that Congress directed the Census Bureau to work with and refer to, concluded that, but we've... we've cited in our reply brief the General Accounting Office has cited that particular strength of this as a principal benefit of conducting the 19... the 2000 Census in the manner in which the Secretary proposes he do it.

Justice Breyer: Then can I go back to the Chief Justice's question?

My... my understanding of this is that on method one you will get some mail surveys back... think of a particular census block, I guess if... maybe there are 30 housing units... I don't know if I have the right terminology.

Mr. Waxman: Approximately.

Justice Breyer: All right.

So you'll get, like, questionnaires back.

And you'll count people in terms of the answer to the questionnaire.

And then where you don't get a questionnaire back, you send somebody to the house.

And then when you don't get either, you do a little estimating.

That's the first method.

Mr. Waxman: Well...

Justice Breyer: Is that right, basically?

Mr. Waxman: it's...

Justice Breyer: Crudely?

Mr. Waxman: it's right to the extent that the... the Census Bureau has determined, for a variety of reasons... that I can explain to the Court if it wishes... the Census Bureau has determined that, unlike in 1990, when it conducts the non-response follow-up portion... that is, who didn't mail in anything from their home or from a mall, or who didn't call us or send us their information by Internet... they are not going to attempt to have a physical follow-up visit with every home in every block.

Justice Breyer: All right.

Unidentified Justice: Yeah, but this... no, this is... so that... let's think of census block A.

Justice Breyer: And census block A roughly we counted in the way we did.

And then there are certain hundreds of thousands of those census blocks all over the country... or maybe millions.

Now, in method two, we're going to take census block B, which is one of our 750,000 sample blocks.

Mr. Waxman: There's 25,000 census blocks.

Justice Breyer: Or 25,000 sample units.

It's one of the cells that we're really going to look at.

And there, I take it, we physically go out with people and literally dig up everybody.

I mean we go not just door to door, we really... we really do this thoroughly.

Is that what happens?

Mr. Waxman: I don't know that we'll be going to the extent of digging up everybody, but...

Justice Kennedy: Yes, right.

Unidentified Justice: [Laughter]

Mr. Waxman: But I think... I have... I...

Justice Scalia: We've tried to get away from that, yes.

Unidentified Justice: [Laughter]

Mr. Waxman: When we talk... when we talk about actual residents, we're generally referring to people who have...

Justice Scalia: All right.

Mr. Waxman: the ability to be vertical.

Justice O'Connor: So, but in any case, as to that...

Mr. Waxman: But can I... can I just...

Justice Scalia: Yes.

Mr. Waxman: Can I just correct one...

Justice Scalia: Yes.

Mr. Waxman: I want to make sure that the Court is not under a misapprehension as to how the ICM is going to work.

For the 25,000 blocks that are chosen for retest during the second... in the ICM phase, the initial enumeration will have a physical visit in the non-response follow-up phase to every home.

That is, there will be no sampling for non-response follow-up in the 25,000 blocks that are going to be the subject of the ICM.

Because the purpose of the ICM is to determine the accuracy or determine the quality of the initial enumeration effort.

Justice Kennedy: Now...

Mr. Waxman: Now I'm ready for your question.

Justice Breyer: in the second... we're at the second one... and the second one, in our 750,000 sample blocks, we really are thorough.

We do real, actual enumeration beyond belief.

Is... is that right?

I mean it's really very, very actual enumeration.

It's certainly the most complete actual enumeration.

Mr. Waxman: It...

Justice Breyer: And then we extrapolate from those 750,000 to the X million that we didn't have time to do that thorough on... to do that thorough a count on?

Mr. Waxman: Well, what will happen as a result of... in the ICM process, the... the results of the ICM and the results of the initial enumeration phases will be very carefully compared.

The differences will be reconciled, and... according to different categories of persons, according to demographic characteristics, according to post-strata.

Justice Breyer: So my question was the same as the beginning.

If you were going to do this with the second phase, what... what at that point does the first phase have to do with your final answer?

Mr. Waxman: Well, the first phase... one cannot arrive at the... under the... under the Census 2000 plan, one cannot arrive at the number of persons in each State without both phases.

Justice Scalia: May I ask...

Mr. Waxman: It... you... you just couldn't do it... we're not proposing to do what sometimes has been referred to as a sample census.

That is, we have a phase at which we are attempting to obtain information from every household in the United States, and a phase... and this is what aggrieves the plaintiffs... a phase at which we will use a sample to adjust for errors that inevitably occur in the initial traditional physical means of enumeration.

Justice Stevens: General Waxman...

May I ask an elementary and rather stupid question?

As of what date during the year is the census supposed to determine the number of people?

Mr. Waxman: April 1st is Census Day.

Justice Stevens: So you don't count people born after April 1st?

Mr. Waxman: No.

Although one of the great sources of error is that people fill out their questionnaires later or, in non-response follow-up, somebody may come to the household in July or September and they count somebody who was born after that day, or somebody who had died the day before.

Or they show up to do the post-enumeration... the... the non-response follow-up in South Florida in July and discover that all the residences are apparently vacant.

I mean one of the things that I think it's important for the Court to recognize, because what the Census Bureau is proposing to do now is something that is significantly different than what has been done before.

But it's not as sharply different as the other side, I think, would suggest.

Since 19...

Justice Ginsburg: General Waxman, may I... may I ask you something that relates to the questions you were asked by Justice Breyer?

And your answers confused me.

You said, of course, for other purposes, you can use the method that you say is the... the one that the scientists agree on.

Would you... suppose you were to lose this case, would you indeed conduct two census... censuses?

I thought one of your positions were that, practically, the answer to this question drives what you would do for the other purposes.

Or would you conduct two censuses?

Mr. Waxman: Practically, the answer to this question... if the Court agrees with us, will make conducting the decennial census much easier, cheaper and more efficient for the Bureau.

But if this Court were to determine that sampling, neither sampling in the non-response follow-up stage or in the national vacancy check stage or... or ICM, could permissibly be used under the... under the statute or the Constitution for determ... for apportionment purposes, the Secretary would be... is required under Section 195 to use sampling in census-taking for all other purposes; that is, intrastate, district...

Justice Ginsburg: But if the decision went the other way, couldn't you say, well, it's not feasible to use it for the other purposes, because it would cost so much to run it two ways?

Mr. Waxman: I think, Justice... Justice Ginsburg, it's clear that if we lost this case on the merits, the Census Bureau would proceed and conduct the census for... for apportionment purposes without the use of any sampling in the non-response follow-up stage.

Justice O'Connor: They'd do it like they always have done it.

Mr. Waxman: They would... they would do that the way they did it in 1990.

Justice Breyer: Yeah.

Mr. Waxman: They would then... the Secretary would then need to determine whether it is feasible... and it certainly does not seem infeasible... to go ahead and conduct the ICM... that is, the integrated coverage measurement survey, and adjust all other State... all other population totals... that is, for Federal funding purposes or districting purposes... and produce...

Justice Ginsburg: Are there any other purposes... the other purposes... the briefs mention redistricting, intrastate redistricting and distribution of Federal funds... are there any other purposes, or are those three...

Mr. Waxman: Those are the... those are the principal purposes of the decennial census that the Secretary is required and authorized to conduct under Section 141(a).

There are other provisions of the Census Act that authorize the Secretary and the Bureau to conduct empirical surveys and censuses for other persons.

For example, upon request by any State or local government.

But the point is that... and this actually goes to the... directly to the standing of the Glavin plaintiffs... the point is that no matter what this Court decides with respect to the issue presented in this case, the Secretary will be required, if he considers it feasible, to use sampling in determining all population totals for all purposes other than the apportionment of representatives among the States.

Justice Souter: General, are you going to get to standing?

Mr. Waxman: I was just waiting to be asked.

Chief Justice Rehnquist: I... yes.

Justice Ginsburg: Just before you do, may I ask about the posture of this case?

It was decided on summary judgment.

So I thought we must therefore assume everything that you say about this leading to a more accurate count is so.

Of course that was never tested in an adversarial way.

Mr. Waxman: That is absolutely correct.

With respect to standing, let me just say the following few things.

The House of Representatives is attempting to direct, through litigation, the execution of the census laws.

But under our system of separated powers, legislation, not litigation, is the means by which Congress gets this done.

The Constitution provides that the census shall be conducted in such manner as Congress shall, by law, direct, not by lawsuit.

With respect to the Glavin plaintiffs, they have virtually abandoned the claim that they will suffer injury in any manner protected by the Constitution or the Act.

None of them has established that it is imminent, or certainly impending, that the Secretary's plan will cause his or her State to lose a seat.

Justice O'Connor: Well, I thought... now wait a minute... I thought there was evidence in the record from Indiana that it was virtually certain that Indiana will lose a seat under the new plan.

At least that's the expert witness's affidavit.

Mr. Waxman: Justice O'Connor...

Justice O'Connor: Isn't it?

Mr. Waxman: that is what the ex... that is what Dr. Webber...

Justice Breyer: For Indiana?

Mr. Waxman: For Indiana, he concluded that it was virtually certain.

Justice Kennedy: Right.

Mr. Waxman: It is sig... very... we controverted that, both in terms of challenging the methodology that he used and his specific conclusion about Indiana.

And it is perhaps for that reason that the district court did not find that it was likely or imminent that Indiana would lose a seat.

And here is what Mr. Glavin's counsel told the court about Indiana in the court below, at page 85 of the transcript.

He said: The government spent all its time disputing whether or not Indiana was going to lose a congressional seat on the basis of Dr. Webber's data

To simplify this case, we'll concede it; Indiana is not going to lose a House seat.

I don't care.

It doesn't matter.

Because there's intrastate vote dilution.

We don't think that for purposes of summary judgment against the government the district court could conclude, or this Court could conclude, that it was imminent or certainly impending that Indiana would likely lose a seat.

Chief Justice Rehnquist: Well, let's... let's think for a moment, General Waxman.

I mean the... the census has to be taken, one way or another, I guess, next spring.

Now if the Court were to reverse the district court here, not on a question of law or not on a question of written law, but on the grounds that it shouldn't have granted summary judgment, it should have itself decided factual issues in dispute, I daresay we would have no definitive pronouncement on the legal questions involved here probably before... we would do well to get one in June.

Mr. Waxman: Well, I... that is true as far as you've taken it, Mr. Chief Justice.

Our position is, leaving aside... even if one accepts the facts as alleged below and not conceded below, the district court made findings of fact.

It did not find that Indiana was likely to lose a seat.

And there simply is not a cause to conclude that any other State is either imminent or actually impending in loss of a seat under the method of equal proportion.

And the reason is...

Justice Kennedy: Because that seems to me to contradict your argument on the merits.

The first half hour you were saying how important it is to do this.

And now you're saying it doesn't make any difference.

Mr. Waxman: No, not at all.

It's very important to do it.

I am just... we are suggesting... and I will at this point be the first to say that I may be wrong on this.

This Court, over the last term, has disagreed with the government's position on standing in many cases.

But it seems to us that the plaintiffs in this case are seeking an advisory opinion.

The Glavin plaintiffs, none of them have shown the... what this Court considers injury in fact, that...

Chief Justice Rehnquist: Who... who could challenge a disputed census procedure then?

Mr. Waxman: Well, I think, certainly after the census is taken, it could be challenged in the way that... that...

Chief Justice Rehnquist: Well, but... well, what good does that do anybody to... you mean to say do a census over again in 1993 because it wasn't done correctly in 1990?

Mr. Waxman: No, I don't think a remedy would be to require that the census be done over again.

And this Court has... has... has considered challenges to the means by which the census has been conducted after the fact on several occasions.

Justice Scalia: How would you challenge it after the fact?

You... you would compare the figures that... that you came up with under this new system with what?

Since you haven't done it under the old system...

Mr. Waxman: Well...

Justice Scalia: how can you show that you've been injured?

Mr. Waxman: The... you have... you have to prove that you likely... that your State like...

Justice Scalia: No, but your experts would come in, just as they came in below, and say well, you were using the 1990 census... census figures, that... that's...

Mr. Waxman: Not... not...

Justice Scalia: that's what was used in rebuttal to the Indiana argument, that, well, you were using the 1990 figures; things have changed since 1990.

Mr. Waxman: Not at all.

Not at all.

The Census Bureau will publish, as it's required to by law after the census is conducted, the results of the mail-in procedures, the results of the non-response follow-up results; that is, both the physical efforts at non-response follow-up and the 100 percent non-response follow-up, using ran... sampling on a random basis.

All of those numbers will be available to plaintiffs after the fact...

Justice Scalia: But you will...

Chief Justice Rehnquist: Some... some court would decide what the population of the United States was in 19... in 2000?

Mr. Waxman: Mr. Chief Justice, courts use imperfect census data all the time, particularly in districting... redistricting cases that occur long after the census is conducted.

And I acknow... we acknowledge that devising remedies for a violation is frequently a difficult task.

What the Court probably should do is re... would do in that instance is remand to the Secretary for a determination of the likely consequences, if any, under the method of equal proportions.

It may very well be... we don't have to reach it in this case... that the 90 percent number that is, quote, the way it's always been done in the past, is sufficient to constitute an actual enumeration.

I'd just like to say a few words about the... the statute, where... which I haven't had the opportunity to address today.

But it's our view that Section 141(a) of the Census Act has... it could not possibly be clearer.

It is the only command in the code for the Secretary to conduct the decennial census and the apportionment census.

And the language has an entirely...

Justice O'Connor: Well, but you have to read Section 195, too, don't you?

Justice Breyer: You... you have to...

Mr. Waxman: Exactly.

Justice O'Connor: apply both.

Mr. Waxman: You... you...

Justice O'Connor: And certainly 195 was thought for many years to preclude the use of sampling for purposes of apportionment.

Mr. Waxman: We think that the only way to harmonize the reading of the two statutes is to read the except proviso of 195 as meaning what it says.

Which means this isn't saying anything about the apportionment census.

Justice O'Connor: Well, don't you think that before it was amended in '76, that everyone thought it precluded using sampling?

Mr. Waxman: Before it was amended in '76, Justice O'Connor, everybody thought...

Justice Scalia: But didn't they?

Justice O'Connor: Didn't they think that?

Mr. Waxman: I'm answering your... I'm trying to answer your question.

Everybody thought that sampling in the apportionment census... at least sampling in lieu of an effort to reach everybody... was prohibited.

What we submit to the Court is that it was not that clause... sampling was prohibited before 195 was enacted because... for two reasons.

There was a provision, Section... old Section 25(c) of the Census Act... that required that an enumerator visit every house and record the number of persons present.

And a sample in lieu of that would have been impermissible.

There was also a... a determin... I don't know about a determination... but both the Congress, in '57, and the Bureau, in '57, indicated that a sample census or a sample survey would not be consistent with the statutory term.

nd in 1976... well 25(c) was repealed in 1964.

And with respect to the implicit meaning of the word,in 1976, Congress said in the most direct way it could that the census should be conducted in such form and content as the Secretary may determine, including the use of sampling procedures.

Now, the reading that the other side wants to give this would... that is, that Section 195 prohibits sampling for apportionment purposes and requires it where feasible for all other purposes, deprives that amendment of Section 141(a) of any meaning at all.

There's nothing left for those words to do.

And what's most significant to us is that by the time Congress enacted this amendment in 1976, the Census Bureau had been using imputation techniques... in 1940, in 1950, in 1960, in 1970, and in 1970... and this was known... this was published by the Census Bureau and the subject of discussions in mentions in House reports and in hearings... the Census Bureau had used statistical sampling in two different respects in the 1970 Census to correct the State population totals by one and a half million people.

There was a sampling used in the national vacancy check and sampling used in something... in the Southern States... in something called Peapock.

Justice Breyer: I mean the obvious thing which I think they'll say as soon as they begin to talk, your opponents, is... is that 141 is an introductory section; 141 says take a census of population.

Then 143 says take a census of agriculture.

And 161 says take a census of government.

And then, when you get to 193, at the end, it begins to tell you more detail.

And so they'll say that's... that's what they say in their briefs... but what... what is your response to that, that these introductory sections give the basic authorization, and of course they give it broadly, and then the later sections limit how you do it?

That's their... I think that's, as I understand it, a basic argument that they make.

Mr. Waxman: Our first argument is that whichever provision is more specific or more general, the first principle of statutory construction is to read the two provisions to the extent... in a manner in which harmonizes them if that can be done.

But if this comes down to specific versus general, Section 141(a) is much more specific.

It is the only provision that directs or allows the Census Bureau to conduct the apportionment census.

In fact, 141(b) makes it clear that's what's being required in 141(a) is the apportionment census.

Section 195, which talks about sampling, refers not just to the decennial census or censuses in general, it refers to anything that the Secretary will do under this chapter.

May I reserve the remainder of my time, please?

Argument of Maureen E. Mahoney

Chief Justice Rehnquist: Yes, you may, General Waxman.

Ms. Mahoney, we'll hear from you.

Mr. Mahoney: Mr. Chief Justice, and may it please the Court:

I'd like to turn first to the issue of justiciability.

Congress passed the '98 Appropriations Act to authorize this litigation to proceed in this Court before the census was taken.

Because it found it was absolutely critical to protect the concrete interests of the House of Representatives and also to authorize private parties, who may be injured as well, to bring this controversy to the Court so it could be resolved in time to provide meaningful relief.

The House does not expect this Court to find that it has standing to resolve the issue of standing if the private parties have... have established standing and if that judgment is affirmed.

It would be perfectly appropriate, and we would agree that the Court should simply not reach the issue of the House's standing in those circumstances.

But if for any reason this Court finds that the private parties do not have standing, it should find that the House does; that the district court properly determined that in these rare and unusual circumstances that Congress acted well within its constitutional authority to provide a cause of action for the House to come to court to resolve this... this legal issue, this legal dispute which has created an impasse between the branches, and to provide relief so that the House will receive the information that it has requested and needs to perform its legislative functions and so that its own composition will not be unconstitutionally and unlawfully altered.

These are concrete interests.

These are interests which are cognizable.

And... and there is no bar to the resolution of inter-branch or inter-governmental disputes under this Court's precedence.

Justice Souter: Ms. Mahoney, what is your response to the... I guess to the objection that if this is a sufficient basis for standing here, the Congress, as a practical matter, can place any obligation on some agency of the executive branch to provide it with information on a concrete subject; and if it ends up not liking the... the information that it gets, in effect, can sue the executive branch on matters that certainly impinge on the respective policy responsibilities of the two branches?

Are we opening up a very large door if we accept your argument?

Mr. Mahoney: I don't think so, Your Honor, for several reasons.

First of all, there has to be a substantial nexus between the challenge to the executive branch conduct and the request for information.

And that of course is satisfied here because, since the beginning of our history, Congress has always relied upon the executive branch to provide it with a report of the population numbers, determined in accordance with the constitutional requirement for an actual enumeration, and the Census Act requirements that it be based on an actual count.

And so I... I think that that nexus is clearly satisfied here.

Second, I think this Court could, and should, find that the only kinds of actions that should be challenged... subject to challenge... would be those executive branch actions which have traditionally been subject to challenge.

And again, here that is clearly satisfied...

Justice Kennedy: By whom?

Chief Justice Rehnquist: By whom?

Mr. Mahoney: By parties who have concrete injuries.

Justice Souter: Yeah, but in this case, there is no tradition of challenge by the House of Representatives.

Mr. Mahoney: Your Honor, there's no tradition of challenge by the House.

But in United States v. Nixon, this Court said that what you look to is not... not the... not the caption.

You look to see whether the... the issues, whether the... the challenge to the conduct is one which has traditionally been reviewed or not.

And there the issue was whether the President had properly invoked ex... executive privilege...

Justice Souter: Well, but the answer is going to be no across the board here, isn't it?

I mean this is... this a the first-time thing.

Mr. Mahoney: Well...

Justice Souter: There's no tradition of challenge... as I understand it, there's no tradition of challenge either by the House or by private parties.

Mr. Mahoney: There is a tradition of challenging the census, Your Honor... census decisions that have been made.

This Court, in Franklin and Montana and in Wisconsin, entertained challenges by private parties to the decisions that had been made by the executive with respect to the conduct of the census.

Justice Souter: Did... have we done it before this past census?

Mr. Mahoney: Have you done it... excuse me?

Justice Souter: Before this past census.

Mr. Mahoney: Well, Your Honor, the...

Justice Souter: How far back does it go?

Mr. Mahoney: Those three cases all came, I think... I believe since 1990.

But they specifically rejected the executive's claim that those were non justiciable...

Justice Scalia: It's not much of a tradition.

Unidentified Justice: [Laughter]

Justice Scalia: What...

Justice Stevens: Of course, they were all after the census figures were available.

Mr. Mahoney: Yes, Your Honor.

But the... the really... I think the district court fully considered the issue of ripeness, and found that here there is really no dispute that the use of sampling in this case is likely... is... is... is going to lead to an... an alteration in the apportionment of the House of Representatives.

And... and therefore, to present it with a prospect where not only has its composition been unlawfully altered, but it's also been deprived of the information that it would need in order to correct that problem.

And that's the... that really is the purpose of the report.

Justice Scalia: Ms. Mahoney, in... in what other areas have we stepped in to resolve a dispute between the two political branches rather than letting them duke it out?

Mr. Mahoney: Yes.

And of course we did try to duke it out, Your Honor.

That... those efforts were exhausted.

Justice Scalia: Well... well, the President thinks that you've succeeded in duking it out.

Mr. Mahoney: The President signed this legislation.

We came to court because this was a... a reasonable way to resolve this.

The two cases, Your Honor, where I believe that are most germane would be United States v. Nixon, where of course the controversy there... there were only two parties in that case before this Court... it was a subordinate executive branch official and the... the President himself...

Justice Scalia: Yeah, it was the executive branch against itself.

Give me a case where it is the Congress against the President.

Justice O'Connor: Or one house of the Congress against the President.

Mr. Mahoney: There are two cases.

Chadha was a case.

It did have a private party.

But the... but the...

Justice Scalia: Give me a case without a private party.

Unidentified Justice: [Laughter]

Mr. Mahoney: Senate Select Committee v. Nixon.

It was not heard by this Court, but it was a statute, in 1974, that authorized the Senate Committee to bring the action in court to challenge the assertion of executive privilege.

There were no private parties.

The... the D.C. Circuit did exercise jurisdiction in that case.

And...

Justice Scalia: When was this decided?

Mr. Mahoney: I believe it was 1974.

Justice Scalia: Oh, during the period when the D.C. Circuit was notorious for its expansive view of standing.

Unidentified Justice: [Laughter]

Mr. Mahoney: Well, Your Honor, in that case, the statute specifically authorized review.

The executive branch has... has long, I think, acknowledged their view that in fact the Congress does have the power to come to court in order to enforce subpoenas.

The... an opinion of the Office of Legal Counsel has taken that view.

And really, this position is... is firmly rooted in this Court's precedence throughout this century that says the Constitution does afford Congress with the means necessary to take the... to use compulsory process to make sure that it gets the information that it needs for its legislative functions.

Justice Scalia: I don't like injecting us into... into a battle between the two political branches.

I... I think they may survive.

I'm not sure we will.

Mr. Mahoney: Your Honor, I think that in these circumstances where it is a narrow cause of action, it is one that is expressly created for this precise purpose, where the branches have reached an impasse, have tried to work it out, and it is...

Justice Kennedy: Well, they... they haven't reached an impasse, because Congress basically has enacted a statute, and then gives its own separate houses the standing to challenge it.

That... that... it seems to me that destroys all discipline that's required for a separation of powers system.

And I... I don't know how... how would you confine this?

Well, it's... it's a census.

It's important because of how the House of Representatives itself is composed.

I mean is that... is that the limiting principle?

Mr. Mahoney: Your Honor, the fact that it is the composition of the House itself is very important here.

Because that is a concrete interest under this Court's decision in 67th Minnesota Senate, where it found that a State legislative body that was directly affected by orders pertaining to its own composition did have standing, did have cognizable interests...

Justice Kennedy: But the national separation of powers was not involved in that case?

Mr. Mahoney: No, Your Honor, it wasn't.

But it did go to the issue... I think we have to separate the issues here.

And... and one is whether these are cognizable at all within an Article III sense.

And I think certainly this Court's decision in... in Beans establishes that the compositional interests, a legislative body's compositional interest, is cognizable.

And it is firmly rooted in the text.

It is something that Cong... that the House has guarded throughout its history and has made every effort to make sure that the size of the delegation conformed to the constitutional requirements.

And of course here that constitutional requirement is that the numbers be determined in accordance with an actual enumeration.

And...

Justice O'Connor: Does it matter at all that that language,,was just put in there by the committee on style, when the drafting history shows that what was used in the Constitution was?

hen it goes to the committee on style, and it comes back.

oes that matter?

Mr. Mahoney: Well, Your Honor, I think in... in the Nixon case, this Court... the Judge Nixon case... this court said that of course the version that was ultimately adopted by the Convention is the one that is entitled to the most weight.

And I think if we look at the... at the way this proceeded, it was first that a census be taken.

It was then that the numbers be taken.

And it was then that an actual enumeration be taken.

And that it... the best reading, of course, is that the actual enumeration was most consistent with what was intended from the outset.

And if we look to what the 1790 Congress thought those words meant... I'd like to expand on what the Solicitor General said here, because I... I think perhaps he left the impression that there was authority to use estimates.

And in fact it's quite the contrary.

That even though at the time the... the States were very familiar with how to do estimations... and Thomas Jefferson himself had done an estimation of the population of Virginia in 1792 that is thought to have been very accurate... the 1790 Act specifically requires that the marshals only prepare schedules that list every household in the Nation, identify the number of people in the household, the sex and the age, and provides that the... the... they can only report the aggregate amount of each description of persons within their respective districts.

In other words, they can only report the people who have been described.

And Madison, at the time that this was adopted, referred to the fact in the debates that... of the difficulty of taking the census in, quote, the way required by the Constitution.

And I think there really is not much doubt, from the 1790 practice, which of course has been followed all throughout history...

Justice Stevens: Ms. Mahoney, can I ask you a question that's sort of the converse of the question Justice Scalia asked about what doesmean if it doesn't mean, you know, the very narrow confinement?

What... what, in your view, would be permissible if a census-taker got no response from a particular address, went to... say it's a large apartment complex and everybody in the neighborhood knows it's... they have lots of undocumented aliens that live in there, but nobody is going to tell you how many because they just don't want to reveal the information?

What does... what does the Constitution permit the census-taker to do to find out how many people live in that apartment complex and other similar apartment complexes?

Mr. Mahoney: I think they can ask the neighbors.

They can ask the postman.

Justice Kennedy: And say no... they say, we're not going to talk.

We...

Mr. Mahoney: They...

Justice Scalia: we don't want to tell you about what's going on.

Mr. Mahoney: Your Honor, they can't guess.

When it's all said and done...

Justice Stevens: So they... what do... do they put down zero then?

Mr. Mahoney: That's right.

Justice O'Connor: Okay.

Mr. Mahoney: It is an objective standard.

The whole point here was that the Framers said, we want an objective standard.

We do not want something that will invite subjective...

Justice Stevens: But they would know that there were a lot of people in there.

They couldn't find out how many.

So the objective standard would require you list it as zero?

Mr. Mahoney: I think so, Your Honor.

Justice Breyer: Even if the lights go on and off in the evening?

Unidentified Justice: [Laughter]

Mr. Mahoney: Your Honor, it certainly... maybe in some sense you could say it would be more accurate to put one than zero.

But we know that in 1790, I mean if a bridge went out and they couldn't get to a town, they couldn't put... put it down on their schedule unless they had the name and could identify the people.

And they were subject to fines if they included...

Justice Ginsburg: Ms. Mahoney, I know we're going over to the merits now, but I would like you just to stay with the standing a moment longer.

Because I don't see a stopping point, other than Congress says, gee, this is really important; we want you to resolve it, Court.

And I also don't catch what you said about the legislature exhausted its legislative remedies.

Well, it would have... it didn't... it didn't pass the first bill over the President's veto.

So it's not a question that... it failed in that endeavor.

Could the legislature even now say, well, we don't like what the President and the Bureau of Census is doing, so we're going to say no funds for the Census; what about that remedy?

Mr. Mahoney: Your Honor, then... then the House will suffer the injury.

The problem here, unlike most circumstances, is the House's injury cannot be solved through its own unilateral action.

Justice Kennedy: Sure it can.

Justice Scalia: But it could if they had enough votes.

It can... it can refuse to appropriate money for the White House staff.

It can say, we're not going to give you any money.

There... there are 900 ways that the House can... can stymie the President if it has the political will to do it.

And you're telling me it doesn't have the political will, so we should solve the problem for the House.

Mr. Mahoney: Your Honor, if I could go first to the example of withholding money for the Census.

If... if the House withholds money for the Census...

Justice Scalia: Well, I wouldn't do that.

Justice Kennedy: I wouldn't do that.

Justice Scalia: I'm withholding money for the White House.

Unidentified Justice: [Laughter]

Justice O'Connor: The White House staff.

Mr. Mahoney: If I could... if I could answer Justice Ginsburg's question.

Withholding money for the Census of course will cause the harm.

Because the House will be un... unlawfully composed in 2... in 2002.

Justice Ginsburg: I'll go with Justice Scalia's, withhold money from whatever.

Mr. Mahoney: Withholding... well, what we can say, Your Honor, is that they tried to pass legislation which would reaffirm the prohibition in Section 195.

In fact, it said 195 prohibits the use of sampling for purposes of apportionment.

It did that in disaster relief legislation.

And the President, nevertheless, vetoed it.

Justice Scalia: The wonderful thing about not appropriating money is that you don't have to pass legislation.

All you have to do is not pass legislation.

Unidentified Justice: [Laughter]

Mr. Mahoney: Your Honor...

Justice Scalia: You see.

And that's the way Congress usually makes its will felt in these disputes with the President, who has the veto power.

It says, okay, you can't veto non-legislation.

We are not going to appropriate money for the White House.

Justice Stevens: Why can't the House do that?

Mr. Mahoney: Your Honor, I think that this has become an intractable controversy.

It is one where there really is no reasonable solution.

The parties determined that there were concrete injuries here and that this was a reasonable solution.

Justice Scalia: When you say it's intractable, you mean the President has won and the House is unwilling to do whatever further is necessary to... to bring the President to heel on the point.

Mr. Mahoney: Your Honor...

Justice Scalia: But that's a political dispute.

Justice O'Connor: We don't get into that kind of stuff.

Well, Ms. Mahoney, I suppose if the Glavin plaintiffs have standing, we don't have to worry about whether the House does, do we?

Mr. Mahoney: That's absolutely correct.

If they have standing, this Court need not... not reach the issue...

Justice Stevens: But what do we do about the... it's a summary judgment and so forth on the Indiana plaintiff then?

Mr. Mahoney: In... in the other case?

Justice O'Connor: I mean who has that...

Mr. Mahoney: I'm sorry.

Justice Stevens: who... who... which individual has been hurt, and how has that been demonstrated?

Mr. Mahoney: In... in that case, I think Mr. Carvin will be speaking to the... to the issue of standing in the... in the private plaintiff case.

Justice Stevens: Oh, okay.

Mr. Mahoney: But I do think that there are... there certainly is substantial evidence to indicate that there will be harm to the individuals.

And it doesn't have to be proven with any degree of certainty.

We are talking here about a procedure that was established by the Framers and also by the Congress to prevent the use of sampling.

Justice Breyer: All right.

When you... when you looked this up... this is meant to be somewhat supportive, but... because this is a case in which Congress and the President have asked this Court to decide this question; it's not a case of we're doing it without their permission.

They passed a statute saying to decide it.

Now, if we were in fact... if we were in fact to say there is no standing in this case for the House, then I take it your argument is that then the House and the Senate couldn't subpoena witnesses from the executive branch?

Mr. Mahoney: That's...

Justice Breyer: I mean it's the same kind of issue.

How often... how often in the past has that occurred?

You've probably looked into this.

My impression is it's fairly common, but it may not be common at all that they subpoena witnesses.

Mr. Mahoney: The House subpoena witnesses on a regular basis I believe, Your Honor.

And the House has come to court... I mean, excuse me... the Senate has come to court in order to enforce its subpoenas.

Justice Breyer: Many times?

Chief Justice Rehnquist: A few?

Mr. Mahoney: I think approximately six or seven times.

And I believe only once against the executive branch.

And that was when...

Justice Scalia: And of course, if the executive is willing to flout the Congress, the executive might well be willing to flout this Court if it felt that... that its assertion of executive privilege was important enough.

I mean I... I don't see how you solve these inter-branch disputes by dragging in the third branch.

Mr. Mahoney: Your Honor, I really believe that was rejected in United States v. Nixon.

There, this Court was confronted with a situation where the President said, this is not a case or controversy because I have invoked executive privilege, my subordinate disagrees with me, he cannot come to court to challenge my decision invoking executive privilege, this is not a case or controversy, and this Court unanimously held that the fact that both parties are members, officials of the executive branch cannot be viewed as a barrier to suit, because we have to look behind the captions.

And one of the things that this Court stressed is that there was a regulation in place at the time, of the Department of Justice, which authorized the executive branch official to come to court in order to get issues of executive privilege resolved, and this Court said, we must respect and enforce that regulation.

And I submit, Your Honor, that if there is reason to decide that controversy based upon the fact that there was a regulation in place, that certainly when the President has signed legislation that authorizes us to come and have this controversy resolved, that provides an even greater basis to respect and enforce the judgment of the United States Government that it is appropriate to resolve this controversy, especially where the issue here is not one that is of the type that raises special sensitivities of prosecutorial discretion, or even executive privilege.

It just how to interpret the Constitution in the Census Act.

And those issues have been subject to review in this Court several times in the last decade, so I think that this really was a very appropriate response, especially where here the House itself is essentially captive to the executive branch's decision to proceed with an unlawful plan that's going to alter its composition and deprive it of the information that it needs in order to take corrective action or pass new apportionment legislation.

Justice Ginsburg: But you agree, do you not, that for intrastate redistricting and for Federal funding purposes this is lawful, it is not only lawful but required by the act if feasible, or do you take issue with that?

Mr. Mahoney: Your Honor, we have not made that part of our case because our standing derives from the interest in protecting the House's composition, which pertains to the size of the delegations in the States, but I do not... so we haven't briefed the issue, but I do not think that it is at all clear that that is the correct answer to the question.

I think when you read the Census Act it certainly indicates that the tabulation of population that is done in the decennial census is supposed to be made without the use of sampling, and that it does not authorize the Secretary to go and make some different tabulation of population.

Justice Ginsburg: So you think for any purpose, it can't be used for redistricting intrastate or for distribution of Federal funds.

Mr. Mahoney: I think that's correct, the population numbers, unless Congress steps in and authorizes it, and...

Justice Ginsburg: That seems to leave nothing for 141 under the statute.

Mr. Mahoney: Actually, Your Honor, I think 141 clearly is a general reference to the Secretary's authority to use sampling.

Of course, the decennial census covers, it's not so much funding and that sort of thing, it's the myriad of information that has to be collected.

The decennial census is the census of population and housing and matters pertaining to population and housing.

That's probably 30-some subjects that gets addressed, and really the point of 195, and the point of 141, is to allow the Secretary the authority to use sampling to make inquiries with respect to all of that kind of information, but not to determine the population for the decennial census.

Certainly to determine the population for the mid-decade census.

195 would allow the Secretary to do that, but I don't think that the Census Act could readily be read to support the view that the Secretary is required to go out and conduct an actual enumeration of everyone in the United States by household under the decennial census and then go back and do it over using sampling for other purposes.

I think that the distinction is between the determination of the population in the decennial and the gathering of all the other information, and that that is the best reading of the act, but that is not... it is not actually squarely presented by our case, because we are here challenging the methods that are being used to determine the size of the State delegations.

I'd also like to just make it clear in terms of what actually is being done here in terms of sampling.

For nonresponse follow-up there will basically be the judgment that what the plan provides is that the Census Bureau will deliberately not try to go and find out who lives in 10 percent of the households in the country, deliberately.

They will send the mailing, and that will be that.

Thank you, Your Honor.

Justice Scalia: Thank you, Ms. Mahoney.

Argument of Michael A. Carvin

Chief Justice Rehnquist: Mr. Carvin, we'll hear from you.

Mr. Carvin: Mr. Chief Justice, and may it please the Court:

I'd like to pick up with the point that Ms. Mahoney was just addressing, because I want to make sure that the factual premise for our standing is clear.

I think the key point for the Court to understand is that there will be no 100-percent actual enumeration in 2001.

There will be no 100-percent head count.

What the Census Bureau will do is enumerate 90 percent of the households, and then will do two statistical estimations...

Chief Justice Rehnquist: You say 90 percent of the households.

Does that mean 90 percent of the households in each tract, or 90 percent en masse?

Mr. Carvin: Both, Your Honor.

They will try and achieve, Mr. Chief Justice, 90-percent in each census tract and, of course, in the aggregate that will be 90-percent of the households...

Justice O'Connor: Well, I guess they'll give the forms to every household.

Mr. Carvin: Yes, that's correct, Your Honor, and they...

Justice O'Connor: So they're not trying to get 90 percent.

They're trying to get them all, but they know that judged on past experience they're not going to get a return over about 67 percent.

Mr. Carvin: Precisely, Justice O'Connor.

They anticipate that about 67 percent of the people who they mail out to will mail back to them, and then so assume you'll have 30 percent of the people in a census tract will not have responded, to make it simple.

What they will do is then go send an enumerator to 20 percent of the households, in other words, to get to 90 percent.

Justice Stevens: Let me just clarify one thing.

Supposing they'd sent... they tried to send them to the remaining 30 instead of just the 20.

Your case would still be the same, wouldn't it, because they won't get answers from all of them.

Mr. Carvin: I... no...

Justice Stevens: I mean, say they... in other words they... on the first go around they tried to get the 100 percent instead of the 90.

Mr. Carvin: Yes.

Justice Stevens: But they failed to get it, and they only got half of what they try.

Mr. Carvin: Right.

Justice Stevens: And then... could they then use sampling?

Justice Scalia: You'd say no.

Mr. Carvin: As to the ICM, that is true.

Justice Breyer: Yes.

Mr. Carvin: We object to both...

Justice Stevens: So I don't understand the significance of the 90-percent argument, is what I'm trying to say.

Mr. Carvin: It's significant for standing purposes, Justice Stevens, for this reason.

We need... we argue that the 100-percent head count is the only permissible means of apportioning the population in 2001.

Justice Ginsburg: Has there ever been a 100-percent head count?

Hasn't there always been people missed, as Ms. Mahoney responded?

Mr. Carvin: Yes.

I have to answer that on two levels, Justice Ginsburg.

There's always been a 100-percent head count of those people who could reasonably be found through traditional enumeration techniques.

No one has ever thought that that included every person residing in the continental United States, but clearly it was always... every census has made a good faith effort to count 100 percent of the households that they know are occupied.

This is the first time that the Census Bureau has decided it will cost too money... too much money to do that, so what we're going to do is estimate 10 percent of the population, roughly 27 million people.

Justice Ginsburg: But you must agree, because of the summary judgment posture of this case, that the scientific evidence is all in favor of the Government to the effect that you will get a more accurate count of the population their way.

Mr. Carvin: As... on the summary judgment on the merits we do not contest that it is more accurate, because that's a disputed issue of fact, so no, we are saying regardless of its relative accuracy it is nonetheless illegal and unconstitutional.

For standing purposes, my point is that you can't have an apportionment if you accept our allegations as true in 2001, because you won't have the 100 percent apportionment number.

So this is no different than the Census Bureau saying tomorrow we'll enumerate 50 percent of the houses, or not conduct any census at all, and that hurts two kinds of people.

It hurts people who will benefit from the apportionment in 2001, like, it is undisputed, the State of Georgia, which will gain an additional seat.

They would be in a better position if the Census Bureau had done its constitutional duty.

It will also hurt, to return to your question, Justice Stevens, in Indiana people who are likely to have more Congressmen under the 100-percent head count than they will retain under defendant's sampling.

Justice Souter: How can that matter be resolved at the summary judgment stage?

I mean, I didn't dwell too long on the counter-affidavits, but among other things it was clear that the counter-affidavits challenge the very factual basis of the selection figures on which you base your claim, so how can that be resolved at the summary judgment stage?

Mr. Carvin: Well, under Lujan, remember, they are moving for summary judgment on standing.

We are the respondents, and under Lujan you must accept the allegations in our affidavits as true.

Justice Ginsburg: Yes, but then there's something between dismissal and summary judgment, and even if we say yes, under Lujan you got past the 12(b)(6) stage, how do you go automatically, as, frankly, the district court seems to have done, said, well, we must assume in favor of the plaintiffs so they get their foot in the door, and then that foot in the door, it seems to me they've gone all the way into the house, and then we judge the merits.

Mr. Carvin: This procedural posture is identical to the City of New York line item veto case from last year.

Plaintiffs were moving for summary judgment on the merits, the Government was in essence moving for summary judgment on standing, and what the Court did in that case was look at the affidavits and see if they had alleged facts that, if true, would show likely injury, and that is exactly what Indiana has done here.

But the other important point, I think, to focus on here is that we are like, the Indiana plaintiffs are like the people in Lujan who had lived next to a federally licensed dam.

As the Court held in Lujan, they would have standing to insist upon an environmental impact statement to be built... to be done before the dam was built.

Justice O'Connor: Yes, well, Mr. Carvin, let's stick with this point for just a minute.

The district court in the Glavin case said that general factual allegations of injury may suffice to establish the Article III standing.

Mr. Carvin: Uh-huh.

Justice O'Connor: Now, let's just suppose that we disagree with the district court and think that while that might work for a motion to dismiss...

Mr. Carvin: Uh-huh.

Justice O'Connor: that it won't work for summary judgment, that there you have to show standing.

So what do we do here?

Do we have to go through the record and try to figure out whether there was enough standing, then, for a summary judgment in connection with the Glavin claimants?

Mr. Carvin: No.

I think all the Court need do is read our affidavits from our expert, as the district court had done.

Justice O'Connor: Well, they were disputed, of course, by the other side.

Mr. Carvin: Well, actually, Your Honor, in terms of intrastate redistricting, they were not disputed in any way, shape, or form.

Justice Scalia: Let's talk about intrastate redistricting.

What is your point?

What is your point on that?

Mr. Carvin: Our point is that...

Chief Justice Rehnquist: Intrastate?

Mr. Carvin: Intra, Mr. Chief Justice, and what I mean by that is that we have three counties, Delaware County, Cumberland County, and Bergen County, who, it is undisputed, are likely to have less population under the Government's sampling plan than they would have under the 100-percent enumeration and, as I say, please read their affidavits, read their briefs.

The Government nowhere alleges that it is remotely conceivable that it is possible that those three counties will do as well under their plan as...

Justice Ginsburg: But I thought the issue here was only apportionment among the States, and you're getting into... there is a dispute on it, but it hasn't been resolved by any district court.

General Waxman told us that for other purposes intrastate, what the census wants to do is okay, and Ms. Mahoney says, well, we don't think it's okay, but it's not yet in issue.

Mr. Carvin: It is not yet in issue because they've never come up with such a plan.

In other words, there's no dispute that this plan, where they will use one population number for apportionment, redistricting, and funding, will hurt us because it will cost us money.

Justice Ginsburg: But I didn't think you could allege in this case that's before us now anything other than the interstate apportionment.

Mr. Carvin: No.

We are alleging injury intrastate.

The reason it is unlawful is because you cannot use a sampling population number for apportionment.

Justice Scalia: You have a New Jersey statute which requires the intrastate apportionment to be done pursuant to the census.

Mr. Carvin: Right.

Justice Scalia: Just as in the New York State case last term, the line item veto case, there was a New York State statute that required the money to go a certain way, and we said, close enough for Government work.

Mr. Carvin: Justice Scalia...

Justice Scalia: Now... so when the New Jersey State statute refers to the census, it obviously refers to whatever census is going to be taken.

Mr. Carvin: Right, and the only way the Solicitor General can avoid that, Justice Ginsburg, is hypothesizing that for the first time in American history the census is going to come up with two population numbers.

It will use the head count number for apportionment, and then it will use the sampling number for redistricting and funding, but there's no administrative decision to do that.

We have no idea if the States will use the sampling number for redistricting...

Justice Breyer: Excuse me.

Justice Scalia: I thought that it was conceded here that they are not going to do a head count number.

Mr. Carvin: I'm sorry, they're... we are now talking... the Solicitor General's point is that our injury will not be redressed by the district court's injunction, and the reason it won't be addressed is because they could come up with a different plan, this two-number census plan, but it is certainly conceded that, absent judicial intervention now, there will only be one population total and that will, of course, injure us.

Justice Scalia: But that certainly depends on what the New Jersey statute means by census, doesn't it?

Mr. Carvin: Precisely, and obviously the New Jersey statute has always been interpreted as the number produced by the census...

Justice Breyer: By intrastate, are you talking about State legislators or Congressmen?

Mr. Carvin: Well, actually, of course, congressional districts are within a State.

Justice Breyer: Is that what you're talking about?

Mr. Carvin: I'm mainly focusing on State legislatures.

Justice Breyer: State legislatures?

Mr. Carvin: Yes.

Justice Breyer: The problem is, the act talks about, it gives you standing to any resident of a State whose congressional representation or a district could be changed.

Mr. Carvin: Right, but...

Justice Breyer: I take it if we take State legislatures, then we're going to have to get to what I'd call the prudential question of what this act means.

Chief Justice Rehnquist: I mean...

Mr. Carvin: I may not have been clear initially.

State legislators do congressional redistricting.

It is the State legislatures that draw congressional districts...

Justice Breyer: Well, that's true, but so what?

Mr. Carvin: and so obviously, if our population is reduced within a State, we will have a smaller share of both congressional districts and...

Justice Breyer: But you have no problem if you can show that your population is reduced significantly compared to others, because then you fit around... but Justice O'Connor was pointing out that that seems in dispute, and so if that's in dispute, and we don't know what's going to happen to Indiana's population, how does it help us to say that the legislature may change its makeup?

Mr. Carvin: Again, Justice Breyer, it is not in dispute.

It is... and please, ask Solicitor General Waxman when he returns if he can argue, and if... if there's any affidavit in the record which suggests that Cumberland County, Delaware County, or Bergen County is just as likely to have the same amount of relative share of population under defendant's sampling plan as it is under our plan.

Justice Souter: Well, I don't think there's any question about there being an affidavit that makes those specific references, but I think what's bothering a number of us is that there is an affidavit which basically goes to the assumptions upon which all your calculations are based, and I may be missing something, but assuming there is an affidavit of that sort, why is it significance for intrastate redistricting different from its significance interstate?

Justice Scalia: There may be a reason.

I just don't know what it is.

Mr. Carvin: Yes, Justice Souter.

The affidavit says that the diminution in Indiana State's population may not result... may not be severe enough for Indiana to lose a congressional seat.

There is no affidavit or similar argument that these counties in the State of Pennsylvania will lose population, and if you lose population, even if it's not enough to cost you a Congressman, nonetheless your funding goes down and your intrastate representation goes down, and the Census Bureau has made an administrative finding that the adjustment that occurred in 1990 is predictive of the results that will occur under the adjustment that they will use in 2000.

When they argued that sampling was more accurate than a head count, they had to figure out what results we could anticipate under a head count and they looked solely at the results of the 1990 census and assumed that those results would be replicated down to the census tract level.

So since they have found that the results of the '90 statistical adjustment are predictive of the 2000 statistical adjustment, they can now not turn around and for standing purposes deny that the '90 statistical adjustment that we have set out in our facts will again be replicated in the 2000 statistical adjustment.

Justice Ginsburg: But the have done that in an affidavit.

Justice Scalia: They have done that.

Mr. Carvin: Again, they...

Justice Stevens: Their affidavit does that.

Justice Scalia: It says you can't use the 1990 figures, doesn't it?

Mr. Carvin: This... well, but again, it says you can't infer from the '90's figures that you will lose enough population to cost you a Congressman because...

Justice Stevens: In Indiana.

Justice Scalia: Okay.

Mr. Carvin: Because the method of equal proportions turns on such small...

Chief Justice Rehnquist: I see.

Mr. Carvin: changes in populations.

But at the general level of saying, you will lose population, yes, these people who were adjusted downward in 1990, they actually had populations subtracted from these counties while everyone else was, of course, having population added to them.

Justice Scalia: So you're saying that affidavit doesn't affect the New Jersey intrastate...

Mr. Carvin: Precisely.

Justice Breyer: Even though it affects the Indiana.

Mr. Carvin: And that was the reason I conceded below that you don't need to focus on Indiana.

I would like to make the additional point that Indiana...

Justice Scalia: Why did you raise New Jersey, then, just in a footnote?

What is it, footnote 11 of your brief?

I mean...

Mr. Carvin: Well...

Justice Scalia: this is a major part of your argument, and it is all contained in...

Mr. Carvin: Your Honor, we've never filed...

Justice Scalia: Appellees have satisfied this standard with respect to their claim of interstate vote... well, wait, that's... contrary... well, I'm sorry.

Mr. Carvin: Your Honor, we had page limitations, and we only focused on disputed facts.

Justice Scalia: Footnote 25, it was.

I mean... and this is your whole case.

Mr. Carvin: Right, Your Honor, but it wasn't contested.

It wasn't contested below, it's not contested...

Justice Scalia: All the more reason to devote your brief to it...

Unidentified Justice: [Laughter]

Justice Stevens: rather than footnote 25.

Mr. Carvin: And if I haven't made it clear, I hope I have clarified in argument that this is in accepted facts, that the States will use the census number for apportionment absent judicial intervention for intrastate redistricting, and that will cost us voting power.

Federal agencies will use the census number to distribute funds, and that will cost us money.

So I don't think that this is a situation, the additional point I guess I'd make, is where we need to prove it was scientific...

Justice Ginsburg: But the answer to your question was that this is going to happen to you anyway, because we are permitted to have the two census things.

Mr. Carvin: Oh, no.

It would only happen to us if the Census Bureau makes an entirely different decision than is already made.

For example, last year in Akins they could have denied plaintiff in that case, Mr. Akins, APAC's membership numbers if they'd used a different rationale to withhold APAC's membership information, but this Court held quite clearly that it doesn't matter if the agency can make the same decision pursuant to a different legal rationale, because plaintiffs have ability to challenge the legal rationale that is motivating this plan, and no one argues that they can implement this plan, that they've got to come up with a different plan.

But just as speculation about what the Government will do doesn't give plaintiff standing, the Government can't defeat standing by speculating about some other plan that it might come up with for the first time in American history, so in terms of what they are going to do, it will injure us, and it is irrelevant that they could legally injure us if they came up with a different plan, just as it was irrelevant in Akins.

Justice Breyer: Can I ask you, what about their main point?

They say that there's a statute which says, except for population... except for apportionment purposes the Secretary shall if feasible use sampling, and then they say, a few paragraphs earlier it does say that the Secretary shall take a population census in any form he wants, including sampling, and unless that thing I last said was meant to allow him to do what you don't like, it would be meaningless.

Mr. Carvin: Well, but as you pointed out earlier Justice Breyer, all 141 does is authorize sampling as specified in the subsequent statutory provisions that deal directly with sampling.

The Solicitor General argues that the word sampling in 141 is therefore somewhat redundant, but the presumption against redundancy has been incredibly rebutted in this statute, because the Solicitor General simultaneously concedes that the Solicitor General's authority for nonapportionment sampling under 141 is controlled by section 195, that you need to read section 195 into 141 for nonapportionment sampling.

Also, of course, it's inherent in the statutory scheme.

They use the word sampling four times.

Every time they gave the Secretary authority in 1976 they threw in, including sampling.

Now, we know that wasn't intended to mean anything, because in 14(d), which deals strictly with mid-decade apportionment and therefore deals... mid-decade census, and therefore has nothing to do with apportionment sampling, it deals strictly with nonapportionment sampling, they have the same language, and they say the Secretary can do nonapportionment sampling.

That is entirely meaningless, because everyone agrees that under section 195 the Secretary already had authority to do nonapportionment sampling, so the reference to sampling in the mid-decade sentencing provision was entirely meaningless, showing conclusively that Congress didn't intend for this language to have any substantial import.

My final point is, even if the grant to the Secretary is ambiguous, the defendant's plan is still unlawful, because clearly, if you are making a major change in policy after 190 years, this Court has ruled in seven different cases cited throughout our briefs that that change in policy needs to be done through a plain statement rule.

It needs to be done clearly and unambiguously, and that has certainly not been accomplished here.

Moreover, of course...

Justice Ginsburg: Mr. Carvin, may I just ask one...

Mr. Carvin: Sure.

Justice Ginsburg: clarification?

On your position about that string of six States, are you saying... is your position that all of those states would lose seats, or at least one of the six?

Mr. Carvin: My position is that all of them have a realistic possibility of losing a seat, and since this is a case, like an environmental impact statement, where the alleged refusal of the Government to provide information is what is at issue, they need not show that providing them the information will definitely benefit them.

Justice Souter: No, but is the possibility realistic because one of them will, or because there is a realistic possibility that more than one of them will?

Mr. Carvin: Both are true, perhaps two or three, but again, we're not relying on that part of our affidavit.

The uncontested part of our affidavit goes to the counties losing funds and intrastate redistricting power.

That's uncontested.

What is contested is that one or two or three of those six States might lose a Congressman, but as again, under Lujan, we need not show that if they gave us 100 percent actual enumeration number, we will definitely benefit.

We need only show that it might benefit us realistically, just like an environmental impact statement might realistically benefit you.

You need not be caught in a catch 22, where you challenge the Government's refusal to provide information, and the standing requirement is, you must show that the information will definitely benefit you, if the reason you don't have the information is because the Government has unlawfully refused to provide you with that information.

So under any theory of standing, we have it both on an interstate basis, and on an intrastate basis, and as the Chief Justice pointed out earlier, this Court will be in no better position to resolve this factual question in 2001, because in 2001, as today, there will not be a 100-percent actual enumeration number.

So if you insist the plaintiffs show you that we will have 10 Congressmen under the 100-percent head count number and we will only have 9 under the defendant's sampling plan, no plaintiff will ever be able to make that showing, because there will never be a 100-percent actual enumeration number, since they have decided to stop at 90 percent in counting people, and they have decided to statistically estimate the rest of those people up to 100 percent.

And to return very briefly to the Constitution, if actual enumeration is a process, then clearly, the only process it contemplates is counting.

Chief Justice Rehnquist: Thank you, Mr. Carvin.

Mr. Carvin: Thank you.

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: General Waxman, you have 3 minutes remaining.

Mr. Waxman: Thank you, Mr. Chief Justice.

Justice Stevens, you were asking about what happens... asking Ms. Mahoney what happens if no one's home, and the implications of her answer is that what the Census Bureau has done consistently since 1940 is unconstitutional in their view, because since 1940 the Census Bureau has been using imputation techniques to assign population figures to residences or locations that are known to exist but where it is not known whether anybody lives there or not.

Justice Scalia: That is not a challenge here, is it?

Mr. Waxman: Excuse me?

Justice Scalia: I mean, that may well be, but it's not under challenge here, is it?

Mr. Waxman: It's not under challenge here, but it's highly relevant, Justice Scalia, to the question of whether what has been going on and what the Constitution requires is a.

Justice Scalia: ince 1940.

Mr. Waxman: Since 1940.

Similarly...

Justice Scalia: Not much of a tradition, either.

Mr. Waxman: Similarly, it's also highly relevant to the meaning of the 1976 amendment that gave the Secretary the authority under 141(a) to use whatever means he thought desirable, including sampling, that in 1970 there was not just imputation but statistical sampling in two different instances that added 1.5 million people to the initial enumeration total.

Now, the plaintiffs in the case have made much of the fact that there is little legislative history to support the notion that Congress in 1976 affirmatively wanted to permit sampling, but the legislative history on their side both on 1976 and in 1957 is deafening.

There were hearings all the time in the 1970's about what the Census Bureau was doing, and the undercount, and talked about what they had done.

The Census Bureau had published reports about what it had done in 1970 to use sampling to correct for the undercount.

In 1976 they had a hearing about using dual system estimation to correct the 1980 undercounts, and there is not one word in the reports that accompanied the 1976 amendments or any of the debates that suggested that anybody thought there was anything wrong with using statistical sampling to increase the accuracy of the effort to count to get information from every person.

On the issue of House standing, as anybody...

Justice Scalia: Now, but you're not using it to increase the accuracy.

I mean, you can say that if you do a 100-percent head count and then use statistics to try to get the people you didn't get in the 100-percent head count.

But as described, and I think it's an accurate description, you don't do 100 percent.

You don't even try to do 100 percent head count.

You just count 90 percent.

Mr. Waxman: Justice Scalia, the Census Bureau and the National Academy of Science panels and the GAO all agree that the Bureau's method for conducting the nonresponse follow-up, which uses some statistical sampling, will be at least as accurate as if they had done physical nonresponse follow-up, and it will increase the overall accuracy of the census because it will be conducted in 5 weeks rather than 14 weeks and permit the ICM part of the process to be conducted with more... better trained people, and at a time that is closer to Census Day.

It has been recognized... thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, General Waxman...

The case is submitted.