Every year, government agents descend on people’s homes threatening them with huge fines if they do not divulge intimate details about their lives. The American Community Survey (ACS) is sent to about 3.5 million randomly selected Americans every year. It demands personal information such as how many beds, cars and phones the household has. It asks people to disclose their fertility history, sexual orientation, and history of marriage and divorce. It asks about daily commute time to work, detailed work history, and how much a person pays in taxes, rent, mortgage and utility bills.
In 1790, Congress authorized the first census. The law it passed authorized six simple questions about the number of people who lived in each home to ensure congressional representation was accurately apportioned. Interestingly, Congress rejected James Madison’s proposal to ask about people’s occupations as “a waste of trouble.” That first Congress, which was closest in time to when the Constitution was written, rejected the notion that government agents could collect people’s personal information under its power to count the nation’s population.
Under the Constitution, the Census Bureau has one job: to count the number of people in the country for apportioning congressional seats in the house of representatives. That’s it.
But many people don’t realize that the bureau now also conducts other surveys in addition to the decennial census. Most of them are voluntary. For some, the federal government even pays participants. But the American Community Survey is mandatory, and that compulsion makes it constitutionally suspect.
The American Community Survey, which asks more than 100 questions, goes far beyond a simple headcount. If this were a voluntary survey, people would be free to not answer the questions. No consequences would follow. But refusing to answer the ACS carries criminal prosecution and potentially ruinous fines. The Census Bureau acknowledges that threatening people makes many buckle under the pressure and disclose their life’s private details to the government agents. And the bureau doesn’t see any problem with that.
We have seen a steady march toward protecting people’s privacy in the United States over the last century. As recently as Dobbs v. Jackson Women’s Health Organization, the Supreme Court has recognized that people have a constitutional “right to shield information from disclosure.” Meanwhile, the Census Bureau has marched in the opposite direction and ended up with a legal position that is unsustainable under the narrow authority Congress has given it. In short, the bureau believes that it can compel anyone to divulge any information it may be interested in under the threat of criminal charges and fines.
Ordering people to disclose highly personal information, or else pay hefty fines, without suspicion of wrongdoing, without probable cause, or without a warrant, is unconstitutional. Yet the Census Bureau asserts it has authority akin to a general warrant — the power to search and seize anyone they choose for any or no reason at all — when it randomly selects millions of Americans and orders them to answer the American Community Survey.
The Bill of Rights zealously safeguards the right to privacy. And this is exactly the kind of invasion of privacy that Judge Janice Rogers Brown decried in People v. McKay as “the inevitable [revival] of the general warrant” and “precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.”
That is why Maureen Murphy, John Huddleston and thousands of other Americans are fighting the Census Bureau’s unwarranted intrusion into their lives. Their pending class-action lawsuit asks the court to settle once and for all that the bureau lacks the authority to compel individuals to answer the American Community Survey. The relevant statute simply does not give the Census Bureau as much power as the bureau thinks it does.
The right to privacy is as American as apple pie or a baseball game on the Fourth of July. Simply put, what the government gets to know about you should be your choice to make. And if a government agent comes to your home asking you intrusive questions without a warrant or probable cause, you should have the undiluted right to tell the agent to take a hike.
This op-ed was originally published by The Hill on June 27, 2022.