Cite as: 525 U. S. 316 (1999)
Scalia, J., concurring in part
seems to me there is no conflict at all. The phrase "decennial census of population" in § 141(a) refers to far more than the "tabulation of total population by States . . . as required for the apportionment of Representatives in Congress among the several States . . . ." § 141(b). See U. S. Const., Art. I, § 2. It also includes "a census of population, housing, and matters relating to population and housing." § 141(g). The authorization of sampling techniques in the "decennial census of population" is not necessarily an authorization of such techniques in all aspects of the decennial census—any more than it is necessarily an authorization of all sampling techniques (for example, those that would violate the Fourth Amendment). One looks to the remainder of the law to determine what techniques, and what aspects of the decennial census, the authorization covers.
If, for example, it were utterly clear and universally agreed that the Constitution prohibits sampling in those aspects of the census related to apportionment, it would be strange to contend that, by authorizing the Secretary of Commerce to use sampling in his census work, § 141(a) "contradicts" the Constitution. The use of sampling it authorizes is lawful use of sampling, and if this does not include the apportionment aspect then the authorization obviously does not extend that far. I think the situation the same with regard to the legal impediment imposed by § 195. Justice Stevens would be correct that the Court is not interpreting § 195 "consistently with § 141(a)," post, at 358, if the latter provision specifically authorized sampling in "all aspects of the decennial census." But since it does not, the Court's interpretation is entirely harmonious.
Justice StevensTM interpretation of this statute creates a palpable absurdity within § 195 itself. The "shall" of that provision is subject to not one exception, but two. The first, which is at issue here, is introduced by "Except." The second is contained within the phrase "if he considers it feasible." The Secretary is under no command to authorize
345
Page: Index Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: October 4, 2007