The Department of Commerce has been enjoined by a federal judge from including the citizenship question in the upcoming Census.

The case began on March 26, 2018, when Secretary of Commerce Wilbur L. Ross, Jr., announced that he would reinstate a citizenship question in the Decennial 2020 Census. In 1960, out of a fear that the question would depress the count for already “hard to count” groups, the Census stopped including the citizenship question in the general census.

Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors and a group of NGOs filed suit in the U.S. District Court for the Southern District of New York, challenging the reinstatement of the citizenship question.

After a bench trial, U.S. District Court Judge Jesse M. Furman issued an opinion in New York, et al. v. U.S. Department of Commerce, No. 18-cv-2921 (Jan. 15, 2019), finding that Secretary Ross had violated the Administrative Procedure Act (APA) in certain ways, including: 1) the decision was arbitrary and capricious; 2) the Secretary had failed to notify Congress as required by the APA; and 3) the Secretary’s reason for instituting the question, in order to enforce the Voting Rights Act of 1965, was pretextual (although the Court did not specifically find that the reason was a pretext for discrimination). Judge Furman vacated the Secretary’s decision and enjoined the Department of Commerce from including the citizenship question in the Census unless and until the legal defects are cured.

Judge Furman’s opinion is extensive (277 pages). In the opinion, he detailed the history of the Census, expressed his concern over the government’s strenuous efforts to stop the litigation, and addressed all of the issues presented. He acknowledged the opinion was quite long, but explained that he wants to be sure there is an extensive record given the certainty of an appeal.

We will continue to follow this case as it progresses through the appeal process. The length of this process could in and of itself prevent the citizenship question from being included in the 2020 Census.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.