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ARGUMENT IV

THE DELEGATION OF POWER BY THE UNITED STATES
CONGRESS TO THE SECRETARY OF COMMERCE AS
EXPRESSED IN TITLE 13, UNITED STATES CODE,
CHAPTER V, IS UNCONSTITUTIONAL IN THAT IT
LACKS AN INTELLIGIBLE STANDARD TO WHICH
ADMINISTRATIVE ACTION MUST CONFORM

That portion of Chapter V, Title 13, United States Code which relates most directly to the defendant is Subchapter II entitled "Population,

Housing, Agriculture, Irrigation, Drainage and Unemployment.

The Subsections contained therein read as follows:

"141. Population, unemployment, and housing

"

(a) The Secretary shall, in the year 1960 and every ten years thereafter, take a census of population, unemployment, and housing (including utilities and equipment) as of the first day of April, which shall be known as the census date.

(b) The tabulation of total population by States as ⚫required for the apportionment of Representatives shall be completed within eight months of the census date and reported by the Secretary to the President of the United States."

"142. Agriculture, irrigation, and drainage

(a) The Secretary shall, beginning in the month of October 1959, and in the same month of every fifth year thereafter, take a census of agriculture, provided that the censuses directed to be taken in October 1959 and each tenth year thereafter, may, when and where deemed advisable by the Secretary, be taken instead in conjunction with the censuses provided in section 141 of this title.

(b) The Secretary shall, in conjunction with the census of agriculture directed to be taken in October 1959 and each tenth year thereafter, take a census of irrigation and drainage.

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By virtue of the statutes cited above and similar statutes

contained in Title 13, United States Code, Congress has empowered the Secretary of Commerce to obtain information through census and survey. The subsections cited above constitute the full expression of that power as well as the limitations placed upon the Secretary of Commerce acting in his capacity as the United States government's census taker in the areas of Population, Housing, Agriculture, Irrigation, Drainage and Unemployment.

In view of the broad language of Subchapter II, the questions which could conceivably be asked by the census taker would be virtually without limit. As the census law presently exists, it appears that the federal government through the census bureau, could ask its citizens any and all conceivable questions which relate to the broad topics mentioned above. The questions could range from the sublime to the ridiculous, so long as they relate in some way, no matter how remote, to the topics mentioned above. And, if a citizen refuses to answer the questions he does so under threat of fine or imprisonment. The only further limitation to the scope of the questions is contained in the penal statute §221(a), Title 13, U.S. C. A. which provides that the questions must apply to the individual 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. The latter "limitation" accentuates the broad powers of inquiry which the Congress has granted to the Secretary of Commerce as census taker.

At present the census taker can conceivably ask questions

of the most intimate nature. Where are we headed? What questions will the federal government ask next? How intimate, how revealing will they be? The answers to such questions should be found in subsections 141 and 142 of Subchapter II of Chapter V above. But those subsections give little or no preview of what is to come, for there is no standard and practically no limit to the inquiry to which the citizens of the United States can be subjected by the census taker.

To allow the census taker to pry at will into the most intimate aspects of individual and family life affords little or none of the privacy guaranteed by the United States Constitution. The Superior Court has reflected on Congress's power of inquiry in the case of Harriman v. Interstate Commerce Commission, 211 U.S. 407, 29 S. Ct. 115, 117, 53 L. Ed. 253, wherein it said:

"How far Congress could legislate on the
subject matter of the questions put to the wit-
nesses was one of the subjects of discussion,
but we pass it by. Whether Congress itself
has the unlimited power claimed by the Com-
mission, we also leave on one side. It was
intimated that there was a limit in Interstate
Commerce Commission v. Brimson, 154 U.S. 447,
478, 479, 38 L. Ed. 1047, 1057, 1058, 4 Inters.
Com. Rep. 545, 14 Sup. Ct. Rep. 1125. Whether
it could delegate the power, if it possesses it,
we also leave untouched, beyond remarking that
so unqualified a delegation would present the
constitutional difficulty in most acute form."

It has long been said that Congress, when delegating power

to the executive branch of government must first adopt a policy-or set

up as "intelligible standard" to which administrative action must conform. Sunshine Cool Co. v. Adkins, 310 U. S. 381, 398 (1940): United States v.

Rock Royal Co-Op., 307 U.S. 533, 577 (1939).

In the case of United States v. Rock Royal Co-Op. (supra)

the Supreme Court said:

"In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand those limits."

Can it be said that the legislative acts which have delegated

such broad power of inquiry to the census taker have stated any standards The acts speak for themselves.

at all?

In Kilbourn v. Thompson, 103 U.S. 168, 195, 26 L. Ed. 377,

the Supreme Court cited the failure of an authorizing resolution to state the purpose of a Congressional Committee's inquiry while saying:

"Was it to be simply a fruitless investi-
gation into the personal affairs of individuals?

If so, the House of Representatives had no
power or authority in the matter more than
any other equal number of gentlemen interested
for the government of their country. By
'fruitless' we mean that it could result in no
valid legislation on the subject to which the
inquiry referred."

In the case at bar the statutes cited above lack a stated

purpose which could in some way resemble a "standard to which

administrative action (could conform." And, if such statutes are

allowed to remain in effect, the inquiry incident to the exercise of such broad powers can take almost any form and can invade the privacy of individual citizens with the apparent approval of Congress.

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