The Obama administration’s deferred action program for eligible undocumented immigrants has thrust an obscure issue into the spotlight: when must federal agencies allow the public to comment on their policy initiatives?
In February, a federal judge issued a temporary injunction against the program largely on the grounds that the Department of Homeland Security’s (DHS) decision to implement the deferred action program without public comment violated the Administrative Procedure Act. This opinion has ignited a great deal of debate, with supporters of the Obama program generally arguing that DHS complied with the law and opponents of the program arguing the opposite. Last Friday, judges on a federal appeals court appeared to break along these lines when hearing an appeal of the temporary injunction.
This case is not unique, as political and policy considerations often seem to drive views on administrative law. My forthcoming article in the Administrative Law Review analyzes why this is the case. I note that political and policy considerations may play an outsized role in judicial review of administrative law statutes, which often provide open-ended exemptions and broadly defined terms. The body of judicial precedent interpreting these laws is similarly open-ended, leaving judges with substantial discretion. Finally, judges seem to worry less about upsetting reliance interests when deciding administrative law issues than substantive issues.
In light of these factors, it is unsurprising to see political and policy preferences play an important role in judicial decisions on administrative law issues in high-profile cases like the challenge to the Obama administration’s deferred action program.