The Commerce Department cannot include a citizenship question in the census – at least for now – according to the Supreme Court.  In Department of Commerce et al. v. New York et al., the Court, in a 5-4 decision written by Chief Justice Roberts, said the question could not be in the census because the “sole reason” Commerce Secretary Wilbur Ross gave for his decision to include it – enforcement of the Voting Rights Act – seemed contrived. Justice Roberts wrote: “[a]ltogether, the evidence tells a story that does not match the explanation the secretary gave for his decision.” The Commerce Department will have to provide further information for the District Court to review before a final decision is made.

The Supreme Court’s decision was complex and layered, with justices agreeing or disagreeing with different parts of the opinion, but ultimately the case turned on Ross’ explanation. The Court held there was no violation of the Enumeration Clause of the U.S. Constitution and there was no violation of the Census Act. But the Court held that the Commerce Department’s decision was reviewable under the Administrative Procedures Act (APA) and that for there to be meaningful review the agency must “disclose the basis” of its decision. This could include assessing the mental processes of the decision-makers.

The Court allowed that decision-makers can act on preferences they may hold but the “genuine” reasons (not pretexts) must be presented so they can be “scrutinized by the courts and the interested public.”

Rather than seeking to appeal the case to the Second Circuit, the Commerce Department had asked the Supreme Court for a direct review because the Census Bureau needed to make its June 30th “go to print” deadline. If that deadline holds, the Bureau will not be able to include the citizenship question in the 2020 Census – even if the agency ultimately prevails. President Donald Trump tweeted his disapproval of the decision from Japan and is asking whether the census can be delayed until there is a “final and decisive decision . . .”

Federal district courts in New York, California and Maryland all held that the addition of the citizenship question violated the APA among other laws. Litigation is continuing and new evidence has come into play. The Maryland district court will consider whether documents from a now-deceased Republican operative prove that the Commerce Department planned to add the citizenship question because doing so would lead to an undercount that would advantage Republicans.

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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.