MarketNeutral
7th April 2010, 01:11 PM
Introduction
In our previous blog article about the census A Solari Report— The 2010 Census, we indicated that under 13 U.S. Code § 221, failure to respond to the decennial census was punishable by a fine of up to $100.
So it was a shock when we were told that a subscriber who listened to Fox News had heard that the fine was $100 per question. And then an even greater shock: various reports that there was a $5,000 fine! We determined to do some additional research to learn what was the source of confusion and whether non-responders faced fines of up to $5,000 rather than $100.
The “Census†and Other Censuses
What most of us know as “the census†is the census taken every ten years by the U.S. Census Bureau, which resides within the Department of Commerce. The basis of a federal census is a mandate to count by the US Constitution, which requires only an enumeration for purposes of determining representation in the House of Representatives.
As described in more detail in a previous blog article A Solari Report—The 2010 Census, the current census is a ten-question form mailed to every household/farm in the country. Due to the proliferation of Census Bureau advertising, few could miss the fact that the as-of date of the current decennial census is April 1, 2010 and that a census worker can be expected to follow up if the form is not received by the Census Bureau by the end of April.
In addition to the decennial census, the Census Bureau conducts other censuses at various intervals, including governmental censuses, business-related censuses and the American Community Survey.
The American Community Survey replaces the long-form census of households and farms that used to be conducted randomly as part of the decennial census. Unlike the long-form decennial census, however, the American Community Survey is conducted on an ongoing, monthly, rolling basis, not just once every ten years. According to the Census Bureau, approximately one household in forty is selected for the American Community Survey each year. It includes 48 questions, like whether the household has flushing toilets, what is the income of the household, what is the value of the home and whether the home is subject to a mortgage. Some of the articles for which links are provided at the end of this article list some of the objections on privacy and other grounds to some of the more personal questions in the American Community Survey as well as arguments that the existence of the survey and its questions are unconstitutional.
Issue #1: What Is the Fine for Refusing to Fill Out and Send In the Decennial Census Form?
The question is, if an individual or family, as an act of civil disobedience or otherwise, is found to have refused or willfully failed to answer any census question, is that individual subject to a fine of up to $100, a fine for each unanswered question of up to $100 (making the total fine for the decennial census form up to $1,000) or a fine of up to $5,000? A related question is whether the fine for refusal to answer questions on the decennial census is the same as for refusal to answer questions on the American Community Survey.
Title 13 of the U.S. Code, §221 says:
“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.â€
A Solari Report subscriber wrote us to say that Fox News had reported this provision levies a per question fine of up to $100. (1) Note that the statute says that the failure to answer “any questions†in the questionnaire is punishable by a fine of $100. Arguably, failure to answer one question and refusal to send in the form both constitute failure to answer “any questions.†We found no reported case law interpreting this provision, and it appears there have been few, if any, prosecutions under this statute. (2) The rules of statutory construction would dictate that in the case of any ambiguity, a court should interpret a penal statute in favor of the defendant (McNally v. United States, 483 U.S. 350 (1987)). This statute says nothing about a [higher] “per question†fine. Therefore, it should be read to provide for a fine of up to $100 for failing to send in the form.
The U.S. Census Bureau site states:
“The American Community Survey is conducted under the authority of Title 13, United States Code, Sections 141 and 193, and response is mandatory. According to Section 221, persons who do not respond shall be fined not more than $100. Title 18 U.S.C. Section 3571 and Section 3559, in effect amends Title 13 U.S.C. Section 221 by changing the fine for anyone over 18 years old who refuses or willfully neglects to complete the questionnaire or answer questions posed by census takers from a fine of not more than $100 to not more than $5,000.â€
We looked up 18 U.S.C. §§3571 and 3559 to see the “amendment†of the census penal provision that the Census Bureau website assures us is there. Based upon the Census Bureau’s summary of the “amendmentâ€, we expected to see something like “the penalty for refusing or willfully neglecting to complete the American Community Survey questionnaire or answer questions posed by census takers is punishable by a fine of up to $5,000.â€
Instead, what we found was:
(1) § 3571 sets forth the classifications of federal offenses generally in the event that a punitive statute doesn’t classify them (e.g., an offense punishable by a term in prison of 25 years or more is a Class A felony and an offense that carries no imprisonment is an “infractionâ€) and
(2) §3559 sets forth the punishment applicable under each classification (e.g., up to three months for a Class C misdemeanor and up to six months for a Class B misdemeanor).
Section 3559 also says that the maximum term of imprisonment is as provided in the specific statute on the offense. (3) No mention of the American Community Survey or the census takers in either section.
We did a search for “’American Community Survey’ + $5,000†on Google and found articles repeating the statement made on the Census Bureau website, with no statutory interpretation whatsoever. No one questioned the Census Bureau’s assertion that failure to answer the American Community Survey can result in a fine of up to $5,000.
We looked on Wikipedia at the “American Community Survey†entry and found:
“. . .Section 221 of Title 13 U.S.C., makes it a misdemeanor to refuse or willfully neglect to complete the questionnaire or answer questions posed by census takers and imposes a fine of not more than $100. This fine is changed by the Sentencing Reform Act of 1984 from $100 to not more than $5,000. To date, no person has ever been charged with a crime for refusing to answer the ACS survey.
Which several U.S. Representatives have challenged as unauthorized by the census act and violative of the Right to Financial Privacy Act. The Department of Commerce states that it is “not an enforcement agency.â€
In our previous blog article about the census A Solari Report— The 2010 Census, we indicated that under 13 U.S. Code § 221, failure to respond to the decennial census was punishable by a fine of up to $100.
So it was a shock when we were told that a subscriber who listened to Fox News had heard that the fine was $100 per question. And then an even greater shock: various reports that there was a $5,000 fine! We determined to do some additional research to learn what was the source of confusion and whether non-responders faced fines of up to $5,000 rather than $100.
The “Census†and Other Censuses
What most of us know as “the census†is the census taken every ten years by the U.S. Census Bureau, which resides within the Department of Commerce. The basis of a federal census is a mandate to count by the US Constitution, which requires only an enumeration for purposes of determining representation in the House of Representatives.
As described in more detail in a previous blog article A Solari Report—The 2010 Census, the current census is a ten-question form mailed to every household/farm in the country. Due to the proliferation of Census Bureau advertising, few could miss the fact that the as-of date of the current decennial census is April 1, 2010 and that a census worker can be expected to follow up if the form is not received by the Census Bureau by the end of April.
In addition to the decennial census, the Census Bureau conducts other censuses at various intervals, including governmental censuses, business-related censuses and the American Community Survey.
The American Community Survey replaces the long-form census of households and farms that used to be conducted randomly as part of the decennial census. Unlike the long-form decennial census, however, the American Community Survey is conducted on an ongoing, monthly, rolling basis, not just once every ten years. According to the Census Bureau, approximately one household in forty is selected for the American Community Survey each year. It includes 48 questions, like whether the household has flushing toilets, what is the income of the household, what is the value of the home and whether the home is subject to a mortgage. Some of the articles for which links are provided at the end of this article list some of the objections on privacy and other grounds to some of the more personal questions in the American Community Survey as well as arguments that the existence of the survey and its questions are unconstitutional.
Issue #1: What Is the Fine for Refusing to Fill Out and Send In the Decennial Census Form?
The question is, if an individual or family, as an act of civil disobedience or otherwise, is found to have refused or willfully failed to answer any census question, is that individual subject to a fine of up to $100, a fine for each unanswered question of up to $100 (making the total fine for the decennial census form up to $1,000) or a fine of up to $5,000? A related question is whether the fine for refusal to answer questions on the decennial census is the same as for refusal to answer questions on the American Community Survey.
Title 13 of the U.S. Code, §221 says:
“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.â€
A Solari Report subscriber wrote us to say that Fox News had reported this provision levies a per question fine of up to $100. (1) Note that the statute says that the failure to answer “any questions†in the questionnaire is punishable by a fine of $100. Arguably, failure to answer one question and refusal to send in the form both constitute failure to answer “any questions.†We found no reported case law interpreting this provision, and it appears there have been few, if any, prosecutions under this statute. (2) The rules of statutory construction would dictate that in the case of any ambiguity, a court should interpret a penal statute in favor of the defendant (McNally v. United States, 483 U.S. 350 (1987)). This statute says nothing about a [higher] “per question†fine. Therefore, it should be read to provide for a fine of up to $100 for failing to send in the form.
The U.S. Census Bureau site states:
“The American Community Survey is conducted under the authority of Title 13, United States Code, Sections 141 and 193, and response is mandatory. According to Section 221, persons who do not respond shall be fined not more than $100. Title 18 U.S.C. Section 3571 and Section 3559, in effect amends Title 13 U.S.C. Section 221 by changing the fine for anyone over 18 years old who refuses or willfully neglects to complete the questionnaire or answer questions posed by census takers from a fine of not more than $100 to not more than $5,000.â€
We looked up 18 U.S.C. §§3571 and 3559 to see the “amendment†of the census penal provision that the Census Bureau website assures us is there. Based upon the Census Bureau’s summary of the “amendmentâ€, we expected to see something like “the penalty for refusing or willfully neglecting to complete the American Community Survey questionnaire or answer questions posed by census takers is punishable by a fine of up to $5,000.â€
Instead, what we found was:
(1) § 3571 sets forth the classifications of federal offenses generally in the event that a punitive statute doesn’t classify them (e.g., an offense punishable by a term in prison of 25 years or more is a Class A felony and an offense that carries no imprisonment is an “infractionâ€) and
(2) §3559 sets forth the punishment applicable under each classification (e.g., up to three months for a Class C misdemeanor and up to six months for a Class B misdemeanor).
Section 3559 also says that the maximum term of imprisonment is as provided in the specific statute on the offense. (3) No mention of the American Community Survey or the census takers in either section.
We did a search for “’American Community Survey’ + $5,000†on Google and found articles repeating the statement made on the Census Bureau website, with no statutory interpretation whatsoever. No one questioned the Census Bureau’s assertion that failure to answer the American Community Survey can result in a fine of up to $5,000.
We looked on Wikipedia at the “American Community Survey†entry and found:
“. . .Section 221 of Title 13 U.S.C., makes it a misdemeanor to refuse or willfully neglect to complete the questionnaire or answer questions posed by census takers and imposes a fine of not more than $100. This fine is changed by the Sentencing Reform Act of 1984 from $100 to not more than $5,000. To date, no person has ever been charged with a crime for refusing to answer the ACS survey.
Which several U.S. Representatives have challenged as unauthorized by the census act and violative of the Right to Financial Privacy Act. The Department of Commerce states that it is “not an enforcement agency.â€