SETTING THE BOUNDARIES OF THE CENSUS CLAUSE: NORMATIVE AND LEGAL CONCERNS REGARDING THE AMERICAN COMMUNITY SURVEY

Hitler used European census data to identify and target the Jewish population;1 Sherman employed United States census data to assist with his march through Georgia;2 finally, Roosevelt used census data to facilitate the creation of Japanese internment camps during World War II.3 While most view the census as an innocuous count ofthe population that occurs every ten years by a constitutional mandate,4 the United States government has increasingly begun to ask more questions on the mandatory decennial census.5 Some consider these additional questions to be an invasion of privacy and outside the scope of what is constitutionally authorized for enumeration.6 As a result ofthe controversy stemming from privacy concerns, and the subsequent drop in return rates of completed census questionnaires during the 2000 census, the Census Bureau devised a new approach for the 2010 census.7 Prior to the 2010 census, the census included both a long form and a short form questionnaire.8 The short form asked questions only for enumeration, while the long form asked myriad questions that assessed everything from commuter times to the respondent's access to running water.9 The privacy objections from the 2000 census focused on the invasiveness of the information gathered by the census long form,10 which Congress and government agencies justified as necessary for general legislative and administrative purposes like allocating federal funding for programs such as Medicaid.11 Given the perceived usefulness of the data from the census long form, Congress did not want to completely eliminate it; however, Congress also felt compelled to address constituent privacy concerns.12 The solution for the 2010 Census: