It didn’t make major headlines, but a key administrative law decision from the US Supreme Court may have made it much harder for Republicans to win the case to stop the President’s deferred action programs. That’s probably because the case wasn’t about immigration law. Dan Kowalski sums it up:
Judge Hanen’s Feb. 16th injunction turns on the Administrative Procedures Act (APA.) Yesterday’s unanimous Supreme Court decision in Perez v. Mtg. Bankers Assoc. could help Judge Hanen and the 5th Circuit answer the question: Did the November 2014 Executive Action memos require APA notice and comment?
The case basically says that for federal agencies issuing rules interpreting statutes or their own regulations, they don’t need to go through the normal notice and comment process. That’s a big problem for the plaintiffs in Texas v. USA since Judge Hanen cited DHS for failing to go through the notice and comment process in issuing it’s rules interpreting the deferred action regulations.
The timing is pretty good for the White House as well. Judge Hanen said yesterday he’s going to force the White House to appear in a hearing on March 19th to get answers on why the Administration allowed for three year EAD extensions to be approved for DACA applicants from 2012. Presumably, Judge Hanen will now be on the defensive to justify how his initial ruling can survive the Perez v. Mortgage Bankers Association. I’m guessing that the Administration will seek to have the judge revisit his decision in light of the new state of the law.