Cass Sunstein on the APA and Judge Hanen's Injunction

"The decision by a federal judge in Texas Monday to strike down President Barack Obama’s immigration reform initiative runs to a whopping 123 pages. But the crucial ruling is narrow: In adopting a plan to allow unlawful immigrants to apply for “deferred action,” Judge Andrew Hanen said the Department of Homeland Security acted unlawfully because it did not allow the public to comment in advance. Judge Hanen almost certainly overreached.

The law here is based on the 1946 Administrative Procedure Act, which governs many activities of executive agencies. The APA does indeed require Homeland Security to seek public comment on any “proposed rulemaking” — but not on “general statements of policy.”

Homeland Security cannot claim this exemption when it imposes mandates on the public — for example, a requirement that employers adopt new hiring procedures for recent visa recipients. Before the government imposes such rules and threatens to punish the public for noncompliance, the American people need an opportunity to weigh in.

The law is cloudier when an agency constrains only itself. Suppose that Homeland Security were to announce that, if employers adopt certain hiring procedures, it will not bring enforcement action against them. The U.S. Supreme Court has not said whether such an announcement counts as merely a “general statement of policy” — but the lower courts have tended to say that if it is really binding it does not, and public comment must be sought.

On the other hand, suppose that the department informs employers that, in deciding whether their hiring procedures are sufficient, it will consider a list of seven factors. Unless that list is binding, no public comment is mandatory.

In the case of the Obama administration’s “deferred action” immigration plan, it follows that if the plan left no room for the exercise of discretion, public comment might have been required. If, for example, Homeland Security had said illegal immigrants who meet certain requirements have the right to stay in the United States, Judge Hanen would have been on firmer ground.

But that is not what happened. On the contrary, the deferred action program calls for immigrants to make individual applications. As the Justice Department explained, the plan provides for “case-by-case discretion,” not a blanket rule. As Judge Hanen himself acknowledged, lower courts have said that agencies need not seek public comment if they remain “free to consider the individual facts in the various cases that arise.”

The judge’s strongest counterargument is that Homeland Security’s deferred action program restricts its own discretion by essentially binding its officials to grant applicants deferred action status. In his view, those officials are limited to a kind of “check the box” inquiry in which they do not, in fact, consider cases individually.

That is the heart of the matter. Yet whenever a secretary of Homeland Security announces some kind of general policy, or issues a guidance document, department officials will be severely constrained. Under the APA, that’s not enough to require public comment in advance.

Homeland Security officials do retain discretion to evaluate individual applications for deferred action. Indeed, they are explicitly required to decide whether such applications “present no other factors that, in the exercise of discretion, makes the grant of discretion inappropriate.”

Judge Hanen was right to focus on the APA and the technical requirements of the law. But he got the technical argument wrong." - Cass Sunstein, Feb. 19, 2015.

Cass R. Sunstein, director of the Harvard Law School’s program on behavioral economics and public policy, is a columnist for Bloomberg View.