346
Scalia, J., concurring in part
sampling if he does not consider it feasible. Is it even thinkable that he may (though he need not) authorize sampling if he does not consider it feasible? The clear implication of "shall," as applied to this exception, is that where the exception applies he shall not. It would be strange to draw the different implication of "may" when the word is applied to the other exception.
And finally, Justice StevensTM interpretation creates a statute in which Congress swallows a camel and strains out a gnat. Section 181 of the statute requires the Secretary to compile annual and biennial "interim current data"—a useful but hardly indispensable function. The Secretary is authorized to use sampling in the performance of this function only if he determines that it will produce "current, comprehensive, and reliable data." § 181(a). The statute Justice Stevens creates is one in which Congress carefully circumscribes the Secretary's discretion to use sampling in compiling "interim current data," but leaves it entirely up to the Secretary whether he will use sampling for the purpose most important (and closest to the Congress's heart): the apportionment of Representatives.
Even if one is not entirely persuaded by the foregoing arguments, and the more substantial analysis contained in the opinion of the Court, I think it must be acknowledged that the statutory intent to permit use of sampling for apportionment purposes is at least not clear. In these circumstances, it is our practice to construe the text in such fashion as to avoid serious constitutional doubt. See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). It is in my view unquestionably doubtful whether the constitutional requirement of an "actual Enumeration," Art. I, § 2, cl. 3, is satisfied by statistical sampling.
Dictionaries roughly contemporaneous with the ratification of the Constitution demonstrate that an "enumeration" requires an actual counting, and not just an estimation of
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