Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information

Relationship Between Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 and Statutory
Requirement for Confidentiality of Census Information
Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which
concerns the authority of federal, state, and local government officials and entities to disclose to the
Immigration and Naturalization Service information regarding an individual's citizenship or immi-
gration status, does not repeal 13 U.S.C. § 9(a), a statutory confidentiality requirement that bars the
disclosure of covered census information by census officials.

May 18, 1999

MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF COMMERCE

You have inquired about the relationship between two federal statutes. The first
provision is 13 U.S.C. § 9(a) (1994 & Supp. IV 1998), which sets forth the
longstanding requirement that census officials must, with certain express excep-
tions, keep covered census information confidential. The second provision is
section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-707,
which now appears as 8 U.S.C. § 1373(a) (Supp. IV 1998), and which concerns
the authority of federal, state, and local government officials and entities to
disclose to the Immigration and Naturalization Service (“INS”) information
regarding an individual’s citizenship or immigration status. You have asked
whether 13 U.S.C. § 9(a) has been partially repealed by 8 U.S.C. § 1373(a).1 We
conclude that it has not.

I.

It is useful at the outset to describe the two federal statutes that are at issue. We
begin by describing the longstanding confidentiality provision that has been
codified as 13 U.S.C. § 9(a). We then describe the recently enacted provision that
addresses the disclosure of certain information to the INS that now appears as
8 U.S.C. § 1373(a).
Section 9(a) of title 13 represents the most recent codification of a statutory
confidentiality requirement that dates back more than a century and that bars the
disclosure of covered census information by census officials. See Baldrige v.

1
See Letter from Andrew J. Pincus, General Counsel, United States Department of Commerce, to
Randolph D. Moss, Acting Assistant Attorney General, Office of Legal Counsel, United States
Department of Justice, Re: Effect of the Illegal Immigration Reform and Immigrant Responsibility Act
on the Confidentiality of Census Information (May 14, 1999) (“Pincus Letter”).

1
 Supplemental Opinions of the Office of Legal Counsel

Shapiro, 455 U.S. 345, 356–59 (1982) (reviewing the history of the requirement);
Census Data Unavailable to Women’s Bureau of Department of Labor and
Individuals, 36 Op. Att’y Gen. 362, 363–66 (1930) (same) (“Census Data”). The
core of this requirement has remained essentially unchanged since its initial
enactment and generally prohibits census officials from disclosing covered
information. The provision has been understood, in the absence of clear excep-
tions, to impose a broad requirement of confidentiality. See Baldrige, 455 U.S. at
359 (holding that lists of addresses collected and utilized by the Bureau of the
Census are exempt from disclosure by civil discovery or under the Freedom of
Information Act); United States v. Bethlehem Steel Corp., 21 F.R.D. 568, 572
(S.D.N.Y. 1958) (barring disclosure to the Department of Justice); Confidential
Treatment of Census Records, 40 Op. Att’y. Gen. 326 (1944) (“Census Records”)
(subjecting Archivist to statutory confidentiality requirement); Census Data, 36
Op. Att’y Gen. 362 (barring disclosure of census information to the Women’s
Bureau of the Department of Labor and Individuals).
At present, the provision enumerates certain express exceptions to the confi-
dentiality requirement, the most recent of which were added by two amendments
that Congress enacted in 1997. One of these amendments added a cross-reference
to a contemporaneously enacted provision that permits certain otherwise prohibit-
ed disclosures to be made to the Census Monitoring Board. See Department of
Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations
Act of 1998, Pub. L. No. 105-119, § 210(k), 111 Stat. 2471, 2487 (1997) (amend-
ing the face of 13 U.S.C. § 9(a)); id. § 210(e)(3), 111 Stat. at 2485 (permitting
disclosure to Census Monitoring Board). The other added a cross-reference to a
contemporaneously enacted provision that permits certain otherwise prohibited
disclosures to be made to the Department of Agriculture for the purpose of
facilitating the agriculture census. See Census Agriculture Act of 1997, Pub. L.
No. 105-113, § 4(a)(1), 111 Stat. 2274, 2276 (amending the face of 13 U.S.C.
§ 9(a)); id. § 2(f), 111 Stat. at 2275 (permitting disclosure to the Agriculture
Department).2
The statutory prohibition against the disclosure of census information now
codified as 13 U.S.C. § 9(a) not only protects the personal privacy of persons who
respond to the census, but also, in doing so, facilitates the administration of the
census, which the Constitution commands the federal government to perform
every ten years. See U.S. Const. art. I, § 2, cl. 3. As the Supreme Court observed in
Baldrige, “[a]lthough Congress has broad power to require individuals to submit
responses, an accurate census depends in large part on public cooperation. To
stimulate that cooperation Congress has provided assurances that information

2
Congress did not reenact the substantive confidentiality requirement itself, however, in amending
the provision to include these express exceptions.

2
 Statutory Requirement for Confidentiality of Census Information

furnished to the Secretary [of Commerce] by individuals is to be treated as
confidential.” 455 U.S. at 354. Not surprisingly, therefore, federal law provides
that census officials who violate the terms of the statutory confidentiality require-
ment may be subject to criminal prosecution for the commission of a felony, and,
upon conviction, may face a maximum prison term of five years. See 13 U.S.C.
§ 214 (1994).
The text of section 9(a) provides:

(a) Neither the Secretary, nor any other officer or employee of the
Department of Commerce or bureau or agency thereof, or local gov-
ernment census liaison, may, except as provided in section 8 or 16 or
chapter 10 of this title or section 2(f) of the Census of Agriculture
Act of 1997 or section 210 of the Departments of Commerce, Jus-
tice, and State, the Judiciary, and Related Agencies Appropriations
Act, 1998—

(1) use the information furnished under the provisions of this title
for any purpose other than the statistical purposes for which it is
supplied; or

(2) make any publication whereby the data furnished by any par-
ticular establishment or individual under this title can be identi-
fied; or

(3) permit anyone other than the sworn officers and employees of
the Department or bureau or agency thereof to examine the indi-
vidual reports.

No department, bureau, agency, officer, or employee of the Govern-
ment, except the Secretary in carrying out the purposes of this title,
shall require, for any reason, copies of census reports which have
been retained by any such establishment or individual. Copies of
census reports which have been so retained shall be immune from
legal process, and shall not, without the consent of the individual or
establishment concerned, be admitted as evidence or used for any
purpose in any action, suit, or other judicial or administrative pro-
ceeding.3

3
Subsection (b) sets forth an additional, express exception to the limited ones that are contained in
the body of subsection (a). This provision is not at issue in this matter. The subsection provides:
(b) The provisions of subsection (a) of this section relating to the confidential treat-
ment of data for particular individuals and establishments, shall not apply to the cen-

3
 Supplemental Opinions of the Office of Legal Counsel

In contrast to 13 U.S.C. § 9(a), section 1373(a) of title 8, entitled “Communica-
tion between Government agencies and the Immigration and Naturalization
Service,” is a recent enactment, and there is little in the way of legislative history
that illuminates its scope. Congress adopted the provision in the course of passing
IIRIRA in 1996, well after 13 U.S.C. § 9(a) had been enacted but just prior to the
enactment of the recent amendments to 13 U.S.C. § 9(a) described above. The
limitation was originally set forth as section 642(a) of IIRIRA and is codified as
section 1373(a) of title 8.
The text of section 1373(a) provides:

(a) In general

Notwithstanding any other provisions of Federal, State, or local law,
a Federal, State, or local government entity or official may not pro-
hibit, or in any way restrict, any government entity or official from
sending to, or receiving from, the Immigration and Naturalization
Service information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.

Subsection (b) places an additional limitation on attempts to restrict a federal,
state, or local government “entity” from making certain uses of information
regarding the immigration status, lawful or unlawful, of any individual. Subsection
(b) provides:

(b) Additional authority of Government entities

Notwithstanding any other provision of Federal, State, or local law,
no person or agency may prohibit, or in any way restrict, a Federal,
State, or local government entity from doing any of the following
with respect to information regarding the immigration status, lawful
or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such
information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

suses of governments provided for by subchapter III of chapter 5 of this title, nor to
interim current data provided for by subchapter IV of chapter 5 of this title as to the
subjects covered by censuses of governments, with respect to any information ob-
tained therefor that is compiled from, or customarily provided in, public records.

4
 Statutory Requirement for Confidentiality of Census Information

(3) Exchanging such information with any other Federal, State, or
local government entity.4

II.

The question that we must resolve concerns the relationship between these two
federal statutes, one of which sets forth a longstanding bar to the disclosure of
sensitive information by census officials that may be enforced with criminal
penalties, and the other of which sets forth a limitation intended to facilitate the
disclosure of certain information to the INS.
We begin with the text of the statute that might be construed to have effected a
repeal of prior law. We are mindful in doing so that “repeals by implication are not
favored,” United States v. United Continental Tuna Corp., 425 U.S. 164, 168
(1976); Morton v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutes are
capable of co-existence, it is the duty of the courts . . . to regard each as effec-
tive”), and that it is “[a] long-standing maxim of statutory construction that
statutes are enacted in accord with the legislative policy embodied in prior
statutes, and that therefore statutes dealing with the same subject should be
construed together.” Memorandum for Glen E. Pommerening, Assistant Attorney
General for Administration, from Antonin Scalia, Assistant Attorney General,
Office of Legal Counsel, Re: Establishing a Maximum Entry Age Limit for Law
Enforcement Officer Positions in the Department of Justice at 3 (Apr. 3, 1975).
Here, by virtue of its more recent enactment, and notwithstanding the 1997
amendments to 13 U.S.C. § 9(a), the potential repealer is 8 U.S.C. § 1373(a), the
text of which provides that federal, state, or local governmental “entit[ies]” or
“official[s]” may not “prohibit, or in any way restrict,” certain types of disclosures
to federal, state, or local government entities or officials. In our view, the text of
section 1373(a) does not manifest the kind of clear congressional intention that is
ordinarily required to effect the repeal of a federal statute such as 13 U.S.C. § 9(a).
Indeed, if anything, the statutory text suggests that Congress did not intend to
repeal existing, federal statutory prohibitions or restrictions on disclosure.
There would be nothing impermissible about a federal statute that took the form
of a repeal of prior federal statutory disclosure prohibitions or restrictions. The

4
Subsection (c) of section 1373 imposes a duty upon the INS to respond to certain requests for
information about the citizenship or immigration status of individuals that it receives from governmen-
tal agencies. That portion of the provision is not at issue here. It provides:
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal,
State, or local government agency, seeking to verify or ascertain the citizenship or
immigration status of any individual within the jurisdiction of the agency for any pur-
pose authorized by law, by providing the requested verification or status information.

5
 Supplemental Opinions of the Office of Legal Counsel

question, here, however, is whether 8 U.S.C. § 1373(a) is such a federal statute,
and textual evidence suggests that it is not. There is a straightforward way in
which 8 U.S.C. § 1373(a) might have been drafted to repeal federal statutes
prohibiting or restricting disclosure and to establish an interpretive background for
future federal statutes that would favor disclosure: “Notwithstanding any provision
of law, a federal, state, or local official or entity may provide information, without
restriction . . . .” In contrast, the terms of section 1373(a) do not clearly invest
governmental officials or entities with the affirmative authority to disclose
information in circumstances where they otherwise would be prohibited from
doing so by a federal statute. Rather, the provision is phrased as a limitation on the
authority of government entities or officials to impose prohibitions or restrictions
on disclosures by government entities or officials. The phrasing therefore requires
that we determine, in order to discern the scope of the provision, the government
“entities” to which Congress has directed this bar. A consideration of that
question, in turn, reveals the problem with construing section 1373(a) to supersede
federal statutory prohibitions or restrictions on the disclosure of information.
One could read the text of section 1373(a) to supersede federal statutory prohi-
bitions or restrictions on disclosure by concluding that the phrase “a Federal, State,
or local government entity or official may not prohibit, or in any way restrict”
includes within its terms the United States Congress acting pursuant to its
lawmaking authority in the same way that it would include within its terms states
or local governments acting pursuant to their lawmaking authority. Such a
construction would be at odds, however, with the fact that Congress may not, by
statute, direct the Congress not to enact certain laws in the future. See, e.g.,
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (Marshall, C.J.) (“The
principle asserted is that one legislature . . . cannot abridge the powers of a
succeeding legislature. The correctness of this principle, so far as respects general
legislation, can never be controverted.”). That is not to say, of course, that
Congress may not enact a statutory prohibition that Congress could lift only by
subsequently repealing it. It is rather to say that Congress has no power to
command itself by statute not to enact a law in the future, and thus that it would be
odd to construe the command contained in section 1373(a) to have been intended
to apply to Congress’s own power to enact prohibitions or restrictions on disclo-
sure. It would appear from the text, therefore, that the provision is intended to
constrain the lawmaking discretion of other government officials and entities but
not of the very governmental entity that is constitutionally vested with the
lawmaking power of the federal government.
It is not possible, moreover, to construe section 1373(a) as if it were intended to
apply only to federal statutory disclosure prohibitions or restrictions that had been
enacted prior to the passage of section 1373(a). Such a construction would avoid
the problem that we have just mentioned, but only by giving rise to a new one. It
would be quite strange to conclude that Congress intended for section 1373(a) to

6
 Statutory Requirement for Confidentiality of Census Information

apply only retroactively as a general matter, and the statutory text simply does not
permit the provision to be construed to apply both prospectively and retroactively
to state and local laws, but only retroactively to federal statutes.
We also do not believe that it would make sense to construe section 1373(a) as
if it were intended to preclude federal officials or entities from implementing,
through, for example, criminal prosecutions or disciplinary actions, federal
statutory prohibitions or restrictions against disclosure. Such an interpretation
would require one to make the dubious assumption that Congress intended to
preclude federal officials from implementing statutory prohibitions or restrictions
against disclosure that it had not seen fit to repeal.
These interpretive oddities do not arise if the text is construed to apply only to
disclosure prohibitions or restrictions other than those imposed by federal statute.
For example, section 1373(a) may be comfortably construed to displace conflict-
ing state or local non-disclosure laws, even if they have been enacted by statute or
ordinance5; state and local governments must legislate in this area in accord with
federal law, City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997)
(rejecting a Tenth Amendment challenge to the application of section 1373(a) to
preempt a city executive order prohibiting city officials from disclosing certain
information to the INS), and the rule that Congress may not bind its future
lawmaking power is obviously not implicated by a federal statute that has such
preemptive effect. Section 1373(a) also may be comfortably construed to limit the
discretionary authority of federal officers or employees, or federal entities like
administrative agencies, to adopt disclosure prohibitions or restrictions; federal
officials or entities generally may exercise discretionary authority of this sort only
to the extent that Congress allows by statute. The ease with which the provision
may be read to cover these applications stands in marked contrast to the struggle
that would be required to read the provision to cover federal statutory prohibitions
or restrictions on disclosure.
To be sure, the presence of the prefatory phrase “notwithstanding any other
provisions of Federal, State, or local law” does reflect a congressional intention to
displace inconsistent law. It does not, however, support a broad construction of the
substantive provision that would give rise to such inconsistencies. See Moyle v.
Director, Office of Worker’s Comp. Programs, 147 F.3d 1116, 1119 (9th Cir.
1998) (“The fact that [a statute] provides that it is effective ‘[no]twithstanding any
other provision of law’ also does not evidence an express repeal of [the other]
statute.”); Kee Leasing Co. v. McGahan, 944 F.2d 577, 582 (9th Cir. 1991)
(“notwithstanding” phrase by itself did not in and of itself indicate a congressional
intent to repeal other statute). The “notwithstanding” phrase merely prefaces the

5
See infra note 7.

7
 Supplemental Opinions of the Office of Legal Counsel

substantive limitation that section 1373(a) sets forth, and, as we have explained,
the text of section 1373(a) suggests that this substantive limitation does not apply
if Congress is the source of the prohibition or restriction in question. The limita-
tion appears instead to be intended to apply only when the source of the prohibi-
tion or restriction on disclosure is an entity or official other than Congress. The
“notwithstanding” phrase is thus best read to mean only that, notwithstanding a
federal statute that would authorize federal officials or entities to exercise their
general administrative discretion in a manner that would prohibit or restrict
disclosures of the type identified in section 1373(a), such federal officials or
entities may not exercise such discretion. The phrase should not be understood to
refer, therefore, to federal statutes that themselves prohibit or restrict such
disclosures.6
Nor do the terms of the title of subsection (b) of section 1373 of title 8, which
employs similar language to subsection (a), reflect a congressional intention to
cover federal statutory prohibitions or restrictions on disclosure. The subsection is
entitled “Additional Authority of Governmental entities.” This language should
not be read to suggest that Congress intended for the text of both subsections to
authorize governmental entities or officials to make disclosures in contravention of
otherwise applicable federal statutes. Section 1373 confers “additional authority”
on state and local governmental entities to the extent that it preempts state or local
disclosure prohibitions that would otherwise apply to them. Thus, even if the title
to subsection (b) should be given interpretive weight, its terms are consistent with
the construction of the text of section 1373(a) that we have set forth above.7

6
Questions may arise in some circumstances as to whether a federal statute constitutes a prohibi-
tion or restriction on disclosure or merely confers general administrative authority upon subordinate
officials or entities that would enable them to determine in their discretion whether to adopt such
prohibitions or restrictions. We have no need to address such questions here, however, because there is
no question that 13 U.S.C. § 9(a) constitutes a federal statutory bar against disclosure.
7
In concluding that the text of section 1373(a) should not be understood to repeal federal statutory
prohibitions or restrictions on disclosure, we express no view as to whether other limitations on the
scope of the provision may also be warranted by either its text or its purposes. We note, however, that,
although, as we explain below, the legislative history comports with our conclusion that Congress did
not intend section 1373(a) to supersede legislatively enacted federal prohibitions or restrictions on
disclosure, the legislative history also suggests that Congress intended to supersede state and local
prohibitions or restrictions on disclosure without regard to whether such prohibitions or restrictions had
been enacted legislatively or adopted pursuant to the exercise of administrative discretion. See H.R.
Rep. No. 104-469, pt. 1, at 277 (1996) (explaining that the House version of the measure “is designed
to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or
decision of any Federal or State court that prohibits or in any way restricts any communication between
State and local officials and the INS”). Thus, the legislative history casts doubt upon a construction of
section 1373(a) that would leave in place all legislatively enacted prohibitions or restrictions on
disclosure, including state and local ones.

8
 Statutory Requirement for Confidentiality of Census Information

III.

The remaining evidence of congressional intent supports the inference that the
text invites: that 8 U.S.C. § 1373(a) does not repeal federal statutory prohibitions
or restrictions on disclosure to the INS of information concerning an individual’s
citizenship or immigration status.
As an initial matter, Congress amended the version of 13 U.S.C. § 9(a) that pre-
dated the enactment of section 1373(a) after section 1373(a) had been enacted.
The amendments, as we have already explained, added two express exceptions to
the confidentiality requirement for census information that 13 U.S.C. § 9(a) had
previously set forth. This recent history of express amendment is consistent with
Congress’s past practice of expressly identifying the relationship between the
confidentiality requirement that 13 U.S.C. § 9(a) sets forth and other federal
statutes. See, e.g., 42 U.S.C. § 11608 (1994) (setting forth the manner in which
otherwise confidential covered census information may be disclosed to implement
a certain treaty); 42 U.S.C. § 6274 (1994) (specifically abrogating protections
conferred by section 9 of title 13 to implement a different statutory policy); 50
U.S.C. app. § 2411 (1994) (providing express exemption for covered census
information from general disclosure requirement); see Pincus Letter at 1 (noting
that “the few statutory exceptions to this requirement are explicit and limited”).
Because “this particular problem of statutory construction arises in a context in
which Congress has historically legislated with care and specificity,” Exchange
Authority for Kaloko Honokohau National Historical Park, 6 Op. O.L.C. 251, 255
(1982), the absence of a reference in either statute to the other suggests that the
text of 13 U.S.C. § 9(a) should be construed to mean just what it says, and that
8 U.S.C. § 1373(a) should be understood to have left in place the confidentiality
requirement that 13 U.S.C. § 9(a) establishes.8
The fact that neither statutory provision refers to the other is also significant
because it has long been assumed that, if Congress were to cut back on the
confidentiality provision set forth in 13 U.S.C. § 9(a), it would do so clearly. In
rejecting a request by the United States Department of Justice that census officials
be ordered to disclose census information relevant to an investigation, Judge

8
Shortly after section 642(a) of IIRIRA had been enacted, the Department of Justice submitted a
legislative proposal to Congress that contained various technical amendments to IIRIRA and that
would have expressly provided that section 642(a) did not repeal 13 U.S.C. § 9(a). See Letter for Newt
Gingrich, Speaker, United States House of Representatives, from Andrew Fois, Assistant Attorney
General, Office of Legislative Affairs (July 3, 1997), with attached legislative proposal entitled
“Technical Immigration and Naturalization Amendments of 1997.” The fact that Congress did not
enact this legislative proposal into law does not, of course, suffice to indicate that Congress intended
for section 642(a) to repeal a portion of the confidentiality requirement set forth in 13 U.S.C. § 9(a).
See Helvering v. Hallock, 309 U.S. 106, 121 (1940) (Frankfurter, J.) (“[W]e walk on quicksand when
we try to find in the absence of corrective legislation a controlling legal principle.”).

9
 Supplemental Opinions of the Office of Legal Counsel

Weinfeld explained that “the purpose to protect the privacy of the information
furnished to the Government is so clear and the public policy underlying the
purpose so compelling that, absent a clear Congressional grant, there is no basis
upon which to direct the Department of Commerce to make available to the
Department of Justice or to any person the reports here sought.” Bethlehem Steel,
21 F.R.D. at 572. The Attorney General employed a similar requirement of clarity
in determining that a statute that granted custody of federal records to the Archi-
vist did not displace the confidentiality requirement set forth in a predecessor to 13
U.S.C. § 9(a).

The policy of insuring by legislative and executive action that no un-
authorized use is made of information obtained in the census, and the
compelling reasons therefor, are set forth in the Attorney General’s
opinion of September 29, 1930, to the Secretary of Commerce. It
would require very clear language in a general statute relating to the
custody of records to justify attributing to the Congress an intention
to depart from its policy, and there is no such clear indication in the
Archives Act.

Census Records, 40 Op. Att’y Gen. at 327–28.9
The presumption employed in these cases arises from the important govern-
mental interests that first prompted the enactment of a statutory requirement of
confidentiality. Indeed, the Supreme Court emphasized the long history of this
statutory requirement, and the important role that it plays in encouraging the
public to cooperate with census officials, in the course of holding that Congress, in
enacting the Freedom of Information Act or conferring authority on federal district
courts to order the discovery of non-privileged information, could not have
intended to override the requirement in a manner that would permit the disclosure
of the lists of addresses that had been collected and utilized by the Bureau of the
Census. See Baldrige, 455 U.S. at 356–62. The Attorney General also emphasized
the important function that the confidentiality requirement performs in describing
a nearly identical predecessor to the current, non-disclosure requirement: “There
can be no doubt that the Congress intended in the act of June 18, 1929 . . . to give
effective assurance to all persons required under penalty of law to furnish

9
The Supreme Court’s decision in St. Regis Paper Co. v. United States, 368 U.S. 208 (1962), is not
to the contrary. In that case, the Court held that the Federal Trade Commission was entitled to order a
private corporation to submit certain census-related information that it had maintained, but the Court
did so on the basis of a determination that 13 U.S.C. § 9(a) imposes a confidentiality requirement that
applies to government officials and not private persons or entities. See St. Regis Paper Co., 368 U.S. at
217–18. The question before us, by contrast, concerns whether the recent enactment of 8 U.S.C.
§ 1373(a) makes permissible the disclosure of census information by government officials who would
otherwise be subject to the confidentiality requirement that 13 U.S.C. § 9(a) imposes.

10
 Statutory Requirement for Confidentiality of Census Information

information to the Bureau of the Census for statistical purposes, that the identity of
the informant and the information furnished would be held in complete confidence
by the Bureau.” Seventeenth Decennial Census, 41 Op. Att’y Gen. 120, 124
(1953); see also Bethlehem Steel Corp., 21 F.R.D. at 570–71 (explaining that a
“purpose [of the requirement] was to encourage citizens to submit freely all data
desired in recognition of its importance in the enactment of laws and other
purposes in the national interests”).
The confidentiality provision to which the Attorney General referred was itself
pre-dated by section 25 of the Act of July 2, 1909, ch. 2, 36 Stat. 1, 9, which set
forth the non-disclosure requirement in similar terms to the current requirement.
The congressional committee that reported the bill that became the Act of July 2,
1909, explained that the provision was intended to secure “a more effective
guaranty than heretofore of the confidential character of the returns as needed in
many cases and desirable in all to enlist that public confidence without which
census inquiries must fail.” H.R. Rep. No. 60-960, at 23 (1908).
In addition, soon after the enactment of the 1929 statute, Act of June 18, 1929,
ch. 46, 28 Stat. 21, 25, and consistent with its broad purpose, President Herbert
Hoover assured the public by proclamation of November 22, 1929, that the
statutory provisions barring the disclosure of census information made clear that

[t]he sole purpose of the Census is to secure general statistical in-
formation regarding the population and resources of the country, and
replies are required from individuals only to permit the compilation
of such general statistics. No person can be harmed in any way by
furnishing the information required. The Census has nothing to do
with taxation, with military or jury service, with the compulsion of
school attendance, with the regulation of immigration, or with the
enforcement of any national, state, or local law or ordinance. There
need be no fear that any disclosure will be made regarding any indi-
vidual person or his affairs. For the due protection of the rights and
interests of the persons furnishing information every employee of the
Census Bureau is prohibited, under heavy penalty, from disclosing
any information which may thus come to his knowledge.

Proclamation No. 1898 (1929).
In light of the federal government’s longstanding commitment to confidentiali-
ty in this area, there is every reason to expect that Congress would have spoken
with particular clarity if it had intended to cut back on the scope of 13 U.S.C.
§ 9(a) in enacting 8 U.S.C. § 1373(a). The plain terms of 13 U.S.C. § 9(a)
certainly make clear the nature of this federal governmental commitment to
confidentiality, as they render covered census information immune from legal
process. A broad construction of 8 U.S.C. § 1373(a), however, would permit

11
 Supplemental Opinions of the Office of Legal Counsel

census officials to disclose to INS employees otherwise protected census infor-
mation even in the absence of a court order requiring them to do so. It is unlikely
that, in light of past practice, Congress would have adopted such a significant
limitation on the scope of the census confidentiality requirement without either
referring to it expressly in 8 U.S.C. § 1373(a) or an amendment to 13 U.S.C.
§ 9(a), or, at the least, using more direct language than it has employed here.
Finally, the discussion in the legislative reports that directly concerns 8 U.S.C.
§ 1373(a) accords with the conclusion that Congress did not intend to effect the
repeal of federal statutory prohibitions or restrictions such as 13 U.S.C. § 9(a). The
conference report to IIRIRA, for example, states that section 642(a), which now
appears as 8 U.S.C. § 1373(a), “provides that notwithstanding any other provision
of Federal, State, or local law, no State or local government entity shall prohibit or
in any way restrict any government entity or official from sending to or receiving
from the INS information regarding the immigration status of any individual in the
United States.” H.R. Rep. No. 104-828, at 249 (1996) (Conf. Rep.). The report’s
failure to refer to prohibitions or restrictions by federal government entities may
have been the result of an oversight, but the omission nonetheless makes it
difficult to discern from the conference report a congressional intention to repeal
federal statutory prohibitions or restrictions against disclosure, such as the one
contained in 13 U.S.C. § 9(a).
In addition, the Senate report appears to be focused on state and local disclo-
sure prohibitions and restrictions. Although the report provides that the provision
that would later become section 642(a) “[p]rohibits any restriction on the ex-
change of information between the Immigration and Naturalization Service and
any Federal, State, or local agency regarding a person’s immigration status,”
S. Rep. No. 104-249, at 19 (1996), the next two sentences suggest that Congress
was concerned with state and local restrictions, not federal statutory ones:
“Effective immigration law enforcement requires a cooperative effort between all
levels of government. The acquisition, maintenance, and exchange of immigra-
tion-related information by State and local agencies is consistent with, and of
potentially considerable assistance to, the Federal regulation of immigration and
the achieving of the purposes and objectives of the Immigration and Nationality
Act.” Id. at 19–20.
The House report also fails to provide support for construing 8 U.S.C.
§ 1373(a) to effect the repeal of federal statutory prohibitions or restrictions on
disclosure. Indeed, at the time of the report, the bill applied only to state and local
prohibitions or restrictions on disclosure, not federal ones. H.R. Rep. No. 104-469,
pt. 1, at 104 (1996). To the extent that the report may be understood to shed any
light on the kind of prohibitions or restrictions on disclosure that Congress had in
mind in enacting section 642(a), moreover, it suggests that a narrow construction
is appropriate. The report states, for example, that “[t]he Committee believes that
immigration law enforcement is as high a priority as other aspects of Federal law

12
 Statutory Requirement for Confidentiality of Census Information

enforcement, and that illegal aliens do not have the right to remain in the U.S.
undetected and unapprehended.” H.R. Rep. No. 104-469, pt. 1, at 277. The report
appears to suggest, therefore, that Congress intended to ensure that the INS would
not be placed at a comparative disadvantage in performing its law enforcement
responsibilities. If section 1373(a) were construed to repeal the applicable portion
of 13 U.S.C. § 9(a), however, the INS would be capable of obtaining census
information relevant to its law enforcement mission even though other federal
agencies would not. The report provides no support for a construction of section
1373(a) that would have the consequence of thus privileging the INS.10

V.

For the reasons set forth above, we conclude that 8 U.S.C. § 1373(a) does not
repeal 13 U.S.C. § 9(a).

RANDOLPH D. MOSS
Acting Assistant Attorney General
Office of Legal Counsel

10
This evidence from the legislative history may suggest that 8 U.S.C. § 1373(a) is not intended to
apply to any provision of law, whether federal, state, or local, that imposes a confidentiality require-
ment that applies to bar disclosures not simply to the INS, but to government agencies generally. We
do not address here, however, whether such a distinction between types of confidentiality requirements
would be compatible with the text of 8 U.S.C. § 1373(a). Cf. Emp’t Div. v. Smith, 494 U.S. 872, 878
(1990) (interpreting the word “prohibiting” in the Free Exercise Clause to incorporate an implicit
distinction between direct and indirect prohibitions). We do note that while it is clear that Congress
intended for 8 U.S.C. § 1373(a) to displace state or local provisions that specifically targeted
disclosures to the INS for special prohibition, see City of New York v. United States, 971 F. Supp. 789,
792 (S.D.N.Y. 1997), the federal statutory bar to disclosure that is set forth in 13 U.S.C. § 9(a) is not
similarly targeted. It applies without regard to whether the information to be protected concerns an
individual’s citizenship or immigration status or whether the disclosure is to be made to the INS or
some other law enforcement agency.

13