Last month I highlighted an amicus brief by the “who’s who” of administrative law professors in support the Federal Government in United States v. Texas, in which they argue that the Obama Administration’s executive actions on immigration constitute a general statement of policy and thus are not subject to notice-and-comment rulemaking.
Today legal scholars Ronald Cass and Chris DeMuth, along with the Judicial Education Project, filed an amicus brief in support of Texas and the other state respondents, arguing that the Administrative Procedure Act requires notice-and-comment rulemaking here. In many ways, this brief seems like a direct response to the administrative law professors’ brief filed in support of the Federal Government (hence the “but see” reference in the post’s title). Here’s a taste of the argument, from the introduction:
In a so-called “memorandum,” the Secretary of Homeland Security has sought to establish a new program, known as Deferred Action for Parents of Americans (“DAPA”), that would make several million aliens eligible to receive “lawful presence,” employment authorization, and other benefits otherwise barred to them by law. Congress considered—but did not adopt—a very similar program. Reasonable people can and do disagree about the merits of the program; and as this case comes before the Court, immigration is a central theme of a contentious election campaign. Yet the Secretary asserts his authority to implement DAPA, altering the status of more than four million immigrants, through the equivalent of a government press release—on no legal authority except a general “vesting” of his discretionary powers and without the notice-and-comment procedures that, in the administrative state, serve to safeguard constitutional interests in lawful, transparent, and accountable democratic government. For good measure, the Secretary insists that his program is judicially unreviewable. None of these contentions can be reconciled with the text or structure of the Administrative Procedure Act (“APA”).
[Update: Josh Blackman has a blog post with the amicus brief of another group of legal scholars (Randy Barnett, Jeremy Rabkin, and the Cato Institute) supporting the state respondents on the Take Care Clause issue as well as arguing that the case should be dismissed as improvidently granted.]