In a characteristically thoughtful post, my co-blogger Daniel Hemel considers a puzzle raised by the ongoing battle over the Obama administration’s decision to offer relief to some unlawful aliens. The Supreme Court, in United States v. Texas, will soon consider the legality of the administration’s actions under the “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) program, but Hemel argues that the Department of Homeland Security could easily render at least one of the Questions Presented moot. That is, under the Supreme Court’s grant of certiorari, the parties will address whether the DAPA guidance “was subject to the APA’s notice-and-comment procedures.” The DHS apparently did not follow notice-and-comment requirements when it promulgated DAPA (but see this provocative post by co-blogger Nicholas Bagley), and the parties must address whether that apparent failure nullifies DAPA. To get around this issue, Hemel writes, the DHS could publish its guidance in the Federal Register and quickly finalize it: “[T]he procedural question would be moot once DHS completed the 30-day notice-and-comment process.”
I’ve remained rationally ignorant of the DAPA case, and my substantive knowledge of it is limited to the highly informative posts by Hemel and Bagley. Nonetheless, I’m compelled to express some skepticism that the Obama administration could so easily cure any failure to follow notice and comment procedures through the quick publication and finalization of the DAPA rules. It’s obvious that the administration has already made up its mind here, and I doubt that any strategic use of the notice and comment procedures should enjoy significant legal weight. As the D.C. Circuit has explained, if later-issued final regulations can easily cure defects associated with prior agency action, the APA becomes “‘virtually unenforceable,’” because “‘[a]n agency that wished to dispense with pre-promulgation notice and comment could simply do so, invite post-promulgation comment, and republish the regulation before a reviewing court could act.’” New Jersey v. EPA, 626 F.2d 1038, 1049 (D.C.Cir.1980) (quoting U.S. Steel Corp. v. E.P.A., 595 F.2d 207, 215 (5th Cir. 1979)). That appears to be the precise strategy suggested for DAPA.
Now, maybe the the D.C. Circuit is wrong on a doctrinal matter (the case law on the curative effect of post-promulgation notice and comment procedures is murky). But speaking as someone who has no particular interest in the policy issues raised by United States v. Texas, I find it quite troubling that an agency would try to sidestep judicial review through the opportunistic use of the notice and comment process. Anyone who practices before an agency knows that comments are most likely to be taken seriously before the agency has made up its mind, not after it has already publicly bound itself to a position.
If the DHS tries to dispense with the notice-and-comment issue by quickly publishing and finalizing the DAPA guidance, I hope that the Supreme Court does not consider the APA question moot. Rather, if it’s necessary to reach the administrative law issues, the Court should address under what circumstances notice & comment procedures can sanitize a decision that an agency has already been reached.