On Feb. 17 a federal judge blocked the Obama administration’s executive action that seeks to shield millions of illegal immigrants from deportation. Elon Law Professor Enrique Armijo provides analysis of the decision’s central legal issue in this week’s “Elon Law Now.”
“As the 120-plus page opinion makes clear, immigration law is an enormously complicated issue, perhaps unique in the many ways that federal, state, and local law and enforcement interact. The administrative law issue on which the opinion turns, however, is a straightforward one: the federal Administrative Procedure Act, or APA, the law that imposes obligatory procedures on federal agencies, requires that with a few narrow exceptions, agencies making regulations that have the effect of law must do three basic things: (1) publish proposed versions of those rules; (2) permit comments from the public on those proposed versions; and (3) respond to the public’s comments before issuing their rules in final form. The federal judge in Texas decided that the rules issued by the Department of Homeland Security (DHS) and its many sub-agencies that would put the President’s immigration plan into effect did not meet these criteria, and were thus invalid.
“Critics of the Judge’s decision argue that the APA’s public comment procedures were not required in this case, where the Executive Branch was not making new legislative rules, but rather enforcing existing federal immigration policy. Now, the more than 5 million undocumented immigrants who would have enjoyed the benefits of the President’s plan must wait, either for DHS to follow the APA’s required procedure in making the rules, or for the Fifth Circuit Court of Appeals in New Orleans or the U.S. Supreme Court to overturn the Texas judge’s decision.”
Armijo teaches and researches in the areas of the First Amendment, constitutional law, torts, administrative law, media and internet law, and international freedom of expression. More information about Professor Armijo is available here.