Article 1, Section 2, Clause 3 — Enumeration Clause And Apportioning Seats In The House Of Representatives

Article I, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Article I, Section 2, Clause 3, known as the Enumeration Clause or the Census Clause, “reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the states, would determine the manner of conducting the census.” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn1art1 " Utah v. Evans, 536 U.S. 452, 476 (2002). The part of this clause relating to the mode of apportionment of representatives among the several States was replaced by the Fourteenth Amendment, Section 2, and the language regarding taxes on incomes without apportionment, by the Sixteenth Amendment, which allows for a federal income tax. Specifically, section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” The Thirteenth Amendment, ratified on December 6, 1865, abolished slavery, providing in Section 1, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.” . ") These determinations “all suggest a strong constitutional interest in accuracy.” [2](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn2art1 " Id. But see Karcher v. Daggett, 462 U.S. 725, 732 (1983) (recognizing that the census data provides “the only reliable—albeit less than perfect indication of . . . population levels,” and that the “census count represents the ‘best population data available.’” (quoting Kirkpatrick vs. Preisler, 394 U.S. 526, 528 (1969)). ")

Some contend that the language employed— “actual enumeration” —requires an actual count, but gives Congress wide discretion in determining the methodology of that count.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn3art1 " Id. at 474 ( “The final part of the sentence says that the ‘actual Enumeration’ shall take place ‘in such Manner as’ Congress itself ‘shall by Law direct,’ thereby suggesting the breadth of congressional methodological authority, rather than its limitation.” ). ") The word “enumeration” refers to a counting process without describing the count’s methodological details, and the Court has held that the word “actual” refers to the enumeration that was to be used for apportioning the Third Congress, and thereby distinguishes “a deliberately taken count” from the conjectural approach that had been used for the First Congress.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn4art1 " Id. at 475. ") Finally, the conferral of authority on Congress to “direct” the “manner” of enumeration underscores “the breadth of congressional methodological authority.” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn5art1 " Id. at 474. ") In Dep’t of Commerce v. U.S. House of Representatives, the Court held that the Census Act prohibits the use of statistical sampling to determine the population for congressional apportionment purposes, but declined to reach the constitutional question of whether the Census Clause’s requirement for an “actual enumeration” foreclosed the use of statistical sampling in gathering census information.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn6art1 " 525 U.S. 316, 343 (1999); see id. at 346 (Scalia, J., concurring) ( “[A] strong case can be made that an apportionment census conducted with the use of ‘sampling techniques’ is not the ‘actual Enumeration’ that the Constitution requires.” ). ") In Utah v. Evans, the Court held that the use of “hot-deck imputation,” a method used to fill in missing census data, did not run afoul of the “actual enumeration” requirement.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn7art1 " Evans, 536 U.S. at 452. “Hot-deck imputation” refers to the concurrent use of current census information as opposed to using information from prior censuses. Id. at 457–58. The concept of “imputation” refers to a methodology used by U.S. Census Bureau that “imputes the relevant information by inferring that the address or unit about which it is uncertain has the same population characteristics as those of a nearby sample or donor address or unit—e.g., its geographically closest neighbor of the same type. . . that did not return a census questionnaire by mail.” Id. at 458 (internal quotation marks omitted). ") The Court determined that Constitution’s text “uses a general word, ‘enumeration,’ that refers to a counting process without describing the count’s methodological details.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn8art1 " Id. at 474. ") The Court distinguished imputation from statistical sampling and indicated that its holding was relatively narrow[9](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn9art1 " Id. at 477 (holding that the Court need not decide whether statistical methods are authorized by the Constitution because the Court was not dealing with “the substitution of statistical methods for efforts to reach households and enumerate each individual” ). ") —that imputation was permissible under the Constitution in this case “where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely.” [10](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn10art1 " See also Wisconsin v. City of New York, 517 U.S. 1 (1996) (holding that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute); Franklin v. Massachusetts, 505 U.S. 788 (1992) (upholding the practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the states of last residence. The mandate of an enumeration of “their respective numbers” was complied with, it having been the practice since the first enumeration to allocate persons to the place of their “usual residence,” and to construe both this term and the word “inhabitant” broadly to include people temporarily absent). ") Thus, the Court held that the Framers “did not write detailed census methodology into the Constitution” and methods, such as imputation, were constitutionally valid.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn11art1 " Evans, 536 U.S. at 479. ")

Although the Census Clause expressly provides for an enumeration of persons, Congress has historically collected additional demographic information—in some years asking more detailed questions regarding the personal and economic affairs of a subset of respondents.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn12art1 " See Dep’t of Commerce v. New York, No. 18-966, slip op. at 2 (U.S. June 27, 2019). ")

The Court confirmed this understanding of the Enumeration Clause in Department of Commerce v. New York.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn13art1 " See Id. ") In an opinion on behalf of the Court, Chief Justice John Roberts considered whether the Secretary of Commerce’s decision to ask a citizenship question on the census questionnaire violated the Enumeration Clause because the question did not relate to the accomplishment of an actual enumeration.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn14art1 " Id. at 11. In so doing, the Court distinguished the instant challenge against the Secretary of Commerce’s decision to collect certain demographic information during the census from prior case law involving the Secretary’s decisions on how to conduct the population count for the census. Id. That case law required decisions about the population count to be reasonably related to accomplishing an actual enumeration. Id. ") The Chief Justice began his analysis by recognizing that the Clause affords virtually limitless authority to Congress in conducting the census, which Congress has, in turn, largely delegated to the Secretary.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn15art1 " Id. ") The Court observed that demographic questions have been asked in every census since 1790, providing a “long and consistent historical practice” that informed the permissibility of the underlying practice.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-3/enumeration-clause-and-apportioning-seats-in-the-house-of-representatives#fn16art1 " Id. at 12–13 ( “That history matters. Here, as in other areas, our interpretation of the Constitution is guided by a Government practice that ‘has been open, widespread, and unchallenged since the early days of the Republic. In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.” ). ") Because of this understanding of the Clause’s meaning, the Court held that Congress, and by extension the Secretary, has the power to use the census for broader information-gathering purposes