The latest development concerning the immigration executive action is an example of:
- Judicial authority and the separation of powers;
- The administrative state and the Administrative Procedure Act, and
- Federalism.
Monday night, a federal district court in Texas issued an injunction barring the Obama administration from continuing to implement its controversial immigration policy reforms. The decision comes just days before the U.S. Customs and Immigration Service was to begin accepting applications for deferred action under the new policy. Several states, including Texas, had filed suit in federal court challenging the lawfulness of the president’s actions. As one might expect, Texas Gov. Greg Abbott (R) is pleased with the decision. The administration has already announced its intention to appeal.
Although the court sided with the states, the court did not declare the substance of the policy itself unlawful — at least not yet. According to thelengthy ruling by Judge Andrew Hanen, the administration failed to comply with the requirements of the Administrative Procedure Act. According to Judge Hanen, the policy announced and detailed in the November 2014 memorandum issued by the Secretary of Homeland Security was a substantive rule subject to the procedural requirements of the APA; procedural requirements the administration did not follow. In other words, the court rejected the administration’s claim that its expansion of the populations eligible for deferred action was an unreviewable exercise of enforcement discretion. Although Judge Hanen rejected some of the administration’s claims of executive authority, he did not reach the broader statutory or constitutional issues underlying the states’ complaint.
When the administration first announced this policy, many speculated that it would be difficult to find plaintiffs who had standing to challenge the immigration policy reforms. This had been my initial thought as well. Judge Hanen had little difficulty finding that at least one of the plaintiff states (Texas) had standing, however. Specifically, Judge Hanen noted that the new policy would impose costs on Texas by, among other things, increasing the number of people eligible to apply for various state benefits and privileges, such as driver’s licenses. Such costs, Judge Hanen concluded, were sufficient to establish standing for Texas
