America needs a Census Bureau director who will count all fairly

Federal elections are the pillar of our national democracy, and the decennial census is the foundation for those elections and assuring that every person is counted accurately and has fair political representation. That makes the responsibility of the Census Bureau to carry out an accurate and fair census a critical charge. Everything from how we are represented in Congress to community resources for our schools, hospitals, and assistance to veterans depends on reliable and accurate census data.

Unfortunately, as our country moves along a shrinking timeline for executing the 2020 census, serious legal concerns are emerging regarding how the Trump administration views Census Bureau leadership. We applaud the letter recently sent by eight leading legal advocacy organizations to Commerce Secretary Wilbur Ross, urging him to ensure a lawful and transparent process for filling leadership vacancies at this vital agency. We echo concerns set out in the letter that the administration’s apparent approach would flout the will of Congress by disregarding federal law and circumventing the Senate’s role in providing advice and consent for a Census Bureau director.

Providing the backdrop for these legal concerns are reports suggesting that the administration has identified a candidate for deputy director. There have, however, been no public reports of a potential director nominee, beyond Secretary Ross telling Congress last summer that he had considered a single candidate who didn’t complete the vetting process. If the Trump administration is — as it appears to be — considering installing a deputy director with the expectation that he or she will serve indefinitely as acting director, that action would raise serious legal concerns.

First, federal law requires that the “[Census] Bureau shall be headed by a director.” This isn’t permissive statutory language. It’s mandatory. Even if this president views the position of Census Bureau director as unnecessary, perhaps reflected in the president’s suggestion that there are too many political appointees in the federal government, the president can’t, consistent with the constitutionally allocated separation of powers, unilaterally repeal a statutory provision by deliberate inaction.

Instead, he is entitled to work with Congress to revisit the statute creating that role. Until then, however, he retains the constitutional obligation to “take care that the laws be faithfully executed” by working in good faith and on a reasonable timeline to fill the role. Given the imminence of the 2020 census and the necessary steps leading up to it, the president should put forth a qualified Census Bureau director nominee for Senate consideration promptly.

Second, Congress has made clear that the director’s duties can’t devolve indefinitely to the highest-ranking official remaining at the Census Bureau. The Vacancies Reform Act provides that, with more than 210 days having elapsed since the last director resigned, the Census Bureau’s first assistant may no longer perform the duties otherwise performed by the director. That law exists because Congress wants those duties performed by a duly installed director. Installing instead a deputy director in anticipation of his exercising the director’s duties would perpetuate rather than resolve the existing legal infirmity and further flout congressional will.

Third, federal law requires that the office of the Census Bureau director be filled with someone chosen from a slate of individuals with particular qualifications: “Such appointment shall be made from individuals who have a demonstrated ability in managing large organizations and experience in the collection, analysis, and use of statistical data.” This unusually specific requirement reflects the importance that Congress has attached to ensuring that the Census is overseen by someone with a keen technical and managerial background. To install a deputy director, for whom there are no similar statutory qualifications, and then rely on him to serve indefinitely as acting director would evade these critical requirements.

Fourth, federal law demands that the Census Bureau director be “appointed by the president, by and with the advice and consent of the Senate, without regard to political affiliation.” This requirement ensures that, for a position this important, the Senate plays a key role by vetting a candidate before she assumes office. Moreover, for this particular office, this standard allows the Senate to ensure that the president has approached this appointment without partisan objectives and has selected an individual who satisfies the specific criteria described above. To install a deputy director, for whom there is no such requirement of Senate confirmation, and then have him serve indefinitely as acting director would be a flagrant evasion of the Senate’s role.

The 2020 census will shape our nation’s democracy, public policy, and economy for a decade. We already know that people of color, in both urban and rural areas, are at an especially high risk of being undercounted by the census. Two-thirds of the population is easily counted in the decennial census. It is the last third, generally low-income individuals who live in rural or urban multifamily communities, who experience difficulty being counted. This is why we need qualified, nonpartisan leadership at the Census Bureau that will help ensure that the voices of all people will be counted.

All told, installing a deputy director in anticipation of having him or her serve indefinitely as acting director would be an unlawful and inappropriate end-run around the will of Congress and the standards set forth in law. It is incumbent on Secretary Ross to work with the White House and Congress to ensure, in a transparent manner, that appointment of Census Bureau leadership complies with statutory requirements and that the agency’s leadership is prepared to carry out effectively its vital responsibility of overseeing a fair and just census.

Karen Hobert Flynn is president of Common Cause. Trevor Potter is president of the Campaign Legal Center.

Follow them on Twitter@KHobertFlynn and @TheTrevorPotter.