President Obama’s unilateral actions on immigration were slowed down temporarily after a federal district court in Texas issued an injunction Monday blocking their implementation. The court found that the administration violated the Administrative Procedures Act (APA) by failing to give advanced public notice of the action and an opportunity for public comment. Now Congress should step in and affirm the court’s reading of the law.
For reasons that I noted in my last post, this decision is a win for anyone who cares about a well-functioning immigration system. The APA process is an important check on immigration agencies violating their statutory requirements. The problem is that higher courts could overturn the temporary injunction on appeal or even agree with the administration’s argument that the president’s actions are exempt from the APA.
Congress should foreclose either possibility by stipulating in the DHS appropriations bill that all immigration changes must follow the APA. Last November, my former boss, Rep. Raúl Labrador (R-ID), who practiced immigration law for 15 years, proposed doing exactly that. Congress could include a rider to DHS appropriations that states that no funds can be used for any immigration changes unless they undergo an APA rulemaking process.
This rider is much more likely to be supported by moderate Democrats in the Senate than a full defund, and the president would be hard pressed to explain a veto of security funds solely in order to avoid allowing the public to comment on his actions. Conservatives could also support the rider as a substitute for three reasons:
1) It would (de facto) defund implementation of Obama’s actions. If required to follow the APA, the president would have to go back to the drawing board, draft and submit regulations, allow 60-days for public comment, respond to comments, and then issue a final rule. This would delay the action for at least 130 days, defunding the action almost through the end of the fiscal year.
Major rules with an impact of over $100 million must be reviewed by Congress for 60 “legislative days,” days when Congress is in session. DAPA would surely be a major rule ($25 of impact/immigrant), which would punt the program into at least February of next year. This is a better outcome than an appropriations rider defunding enforcement of the orders to the end of the fiscal year. It would also move the implementation within one year of President Obama’s exit from office. If Congress found other ways to delay (or, happily, failed to show up for more than 60 days over the next two years), the entire program would be shutdown until President Obama left office.
2) It would guarantee the state lawsuit moves forward. While a win in the district court is a positive development, higher courts could reverse the injunction or rule that the APA doesn’t apply to the administration’s immigration changes. In either case, Congress would improve the chances for the plaintiffs if they specifically required APA review.
3) The public could comment. Obviously, this is good policy even for those who wish to see a successful rollout for DAPA, but for conservatives in Congress, what a great debate to have! Rather than talking about deporting children and parents of U.S. citizens, force the president to explain why he wants to prevent public input.
Requiring administrative rulings to go through the APA process is good public policy. On this issue, conservatives have an opportunity to succeed not only in court, but legislatively as well. If they can secure a reprieve from the president’s actions, they can then tackle their own immigration reforms.