Cass R. Sunstein, Columnist

Texas Misjudges Obama on Immigration

Judge Andrew Hanen was right to focus on the technicalities in Obama's deferred action immigration plan, but his ruling got the argument wrong.

February 17, 2015 at 5:56 PM UTC

By Cass R. Sunstein

Cass R. Sunstein is a former Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

Deferred action denied?
Photographer: John Moore/Getty Images

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The decision by a federal judge in Texas on Monday to strike down President Barack Obama’s immigration reform initiative runs to a whopping 123 pages. But the crucial ruling is fairly narrow: In adopting a plan to allow unlawful immigrants to apply for “deferred action,” Judge Andrew S. Hanen said, the Department of Homeland Security acted unlawfully because it did not allow the public to comment in advance. With this conclusion, Hanen almost certainly overreached.

The law here is based on the 1946 Administrative Procedure Act, which governs many activities of executive agencies. The APA does indeed require Homeland Security to seek public comment on any “proposed rulemaking” -- except it does not have to do so when announces “general statements of policy.”