Census fibbery: Can they force you to answer if you haven’t first been made liable?

In this official photo, Commerce Secretary John Bryson, right, makes a tour with New York Sen. Kirsten Gillibrand. Mr. Bryson oversees the federal census program.

By David Tulis

I long have had uneasy feelings about cooperating with the federal census. A good man in my church was hounded by people in the census machine who came three times to his door and made at least one phone call. This man held firm in his refusal to cooperate with the community survey, though he replied to the 2000 and 2010 constitutional censuses with barebones replies.

The census is worth thinking about again in light of U.S. Congressman John Duncan Jr., R-Knoxville, and his grumping this week about the intrusiveness of the long-form survey. He and other Republicans are moving to halt the Orwellian poll sent to 250,000 households every month. The House voted 232-190 to kill funding for the program, but the bill is not likely to survive Senate action.

“It’s just ridiculous how detailed these questions get,” Mr. Duncan told the Knoxville News Sentinel. “It seems to me there’s just almost no privacy anymore, and it just keeps getting worse and worse.” He called the survey “a make-work project” for Census Bureau staff.

Mrs. Patray, a Christian activist in Nashville of great renown and favor, related her story about census malfeasance with gusto:

Saturday, May 21st [2011], reached a new low. Evidently the Census bully was sitting in front of our house in the car waiting to pounce. The way our house is designed, the only window facing the street is in our bedroom. On the other side of the front door is the garage. About 9:40 p.m. I went into the bedroom and turned the light on. Just a few seconds later the bully repeatedly rang the bell and banged on the door. (Like I would open the door for anyone at the time of night.) We also learned that they quizzed three of our neighbors trying to get information on us.

The Census worker *** has since left two phone messages where he remarked about the ‘Christian’ message on my phone, that he was a Christian too and that he hoped we were ‘deeds and not just ‘words’; that we should ‘do unto others.’ Huh?? He also said that we had an appointment on April 8th that we didn’t keep, which is a complete lie. How could we have an appointment when we had never spoken with anyone to make such an appointment?

In 2010 U.S. Rep. Ron Paul said promises of privacy of your answers to the census are suspect: “[T]hese promises [of confidentiality] can and have been abused in the past. Census data has been used to locate men who had not registered for the draft. Census data also was used to find Japanese-Americans for internment camps during World War II. Furthermore, the IRS has applied census information to detect alleged tax evaders.”
Some local governments even have used census data to check for compliance with zoning regulations, he said. “It is not hard to imagine that information compiled by the census could be used against people in the future, despite claims to the contrary and the best intentions of those currently in charge of the Census Bureau. The government can and does change its mind about these things, and people have a right to be skeptical about government promises.”

Penalty rule only = toothless statute

A law that obligates a person to act has two parts. First, the law identifies people who are subject to the law, and states their duty. Secondly, the law provides penalties for noncomplaince with the law.

John Bryson, federal commerce secretary

As for the census, the U.S. code provides a penalty statute that says refusal to answer censustaker questions brings a fine of up to F$100. The penalty is greater if you lie — F$500.

It’s OK if your eyes glaze over in reading the following block of federal regurge, but I want you to at least scan the penalty section of the law. It’s titled “Refusal or neglect to answer questions; false answers”:

(a) Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100. (13 USC Sec. 221)

Stand up for a moment, stretch your legs, get blood circulating. And let me make a potentially riveting question.

Where is the liability provision of the census statute? My query is not so much phony legal mumbo jumbo. Before I can be penalized for a crime or offense, I must be shown where I am made subject to and liable for performance under statute.

Missing liability statute?

Title 13 in the code is all about the duties and obligations of the Department of Commerce, the census bureau and their ranks of employees. But it contains no provision making an American citizen or resident of any of the 50 states subject to and liable for performance to answer questions.

If you are subject to a statute requiring your performance, you are liable for that performance, and have a legal obligation to answer all questions and surveys to which you are given as a subject. You reasonably should not expect to be subject to punishment without having been made subject to a performance

American law has lost sight of the antecedent need for a liability statute before a punishment statute can exert itself. I offer this suggestion based on the legal profession’s main dictionary, Black’s Law Dictionary. I have reserved an older edition to give to one of my sons for his “man library.” The older revised fourth edition (1968) offers an entry for “subject to.”

Liable, subordinate, subservient, inferior, obedient to; governed for affected by; provided that; provided; answerable for.

Several cases are cited. The current edition of Black’s, the eighth edition, has no entry for “subject to.” Hmmm.

The idea of being “subject to” a law is evidently fading. The loss of the concept of liability to particular statutes allows for malicious prosecutions of innocent Americans by federal and other authorities. People are hounded based on punishment statutes without the government having to show an antecedent liability or duty.

Have prosecutions been launched for “noncompliant” householders for refusing the census? I would have to do a Lexis search, and as I have a date tonight with Jeannette, my wife, it’s going to have to wait. I have not heard of any cases of Americans being assailed criminally or civilly for noncompliance with the census.

In the event any of my readers are prosecuted, the defense would need to do the legal groundwork to make clear to the judge in pretrial hearings that absent a liability statute, there cannot be any sort of crime or civil offense. ‡

Sources: “Census Bureau questionnaires criticized by Rep. Duncan as intrusive,” Michael Collins, Knoxville News Sentinel, knoxnews.com
Black’s Law Dictionary, various editions
‡ Please don’t construe this essay as legal advice. If you want legal advice, consult an attorney or do your own reading.