2 reasons why Obama’s immigration order was halted

Monday night’s 123-page ruling halting the Obama administration’s executive action on immigration has sparked obvious controversy. The New York Times wrote a piece that helps understand Judge Hanen’s ruling, and there are two major components behind his reasoning:

1. Not seeking public opinion

Instead, Judge Hanen wrote, Mr. Obama had gone astray by failing to seek public comment before implementing the program. That, the judge said, probably violated the Administrative Procedure Act, which lays out the steps that must be completed before some changes in federal agencies’ policies can go into force.

Eric Posner, a law professor at the University of Chicago, said Judge Hanen’s holding was, in a sense, “trivial.”

This part certainly seems trivial. I am going to assume the language citing the need for public commentary in the Administrative Procedure Act is there to present the beautiful idea of public debate, and its intent is not to be used to strike down executive actions. This part of Judge Hanen’s ruling also gives a competitive advantage to opponents of the immigration order:

The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.

2. The right to work is conferring a “benefit”

Judge Hanen did acknowledge that the Department of Homeland Security “has virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources.”

But he added that the administration crossed a line when it granted the right to work lawfully to people it chose not to deport. That was not exercising enforcement discretion, the judge said, but conferring a benefit, a change so fundamental it triggered requirements that the administration ignored.

We will see what the Obama administration plans to do. White House Press Secretary Josh Earnest told reports to expect a decision on how they are challenging the ruling within a day or two.


[New York Times] [AP Photo/Carolyn Kaster]



  1. Michael Bernard
    Michael Bernard

    It seems convenient, if not remarkably so, that this injunction and the resulting halt to preparations to carry out this “Executive Action” (not Executive Order) would come just on the heels of the congressional testimony that confirmed the suspected truth that tax benefits were to be available to those covered by the action. Expect to see a lukewarm defensive by the Obama Admin until the passing of April 15, at which point I expect a scorched earth offensive to get the action back on track.

    I love the line Obama gave yesterday: “The Law is on our side, History is on our side”. I would say the first is categorically wrong and the second fundamentally impossible unless taking into account supposed/expected future history…

    For the “Constitutional Law Professor” President to be so often caught out legally and so rarely victorious in his trained vocation it may be prescient that Sidley Austin declined to offer him a full-time position, a first all it’s own when it comes to former Presidents of the Harvard Law Review.

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