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What Obama's Immigration Lawsuit Is Really About

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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When a federal court of appeals struck down a key part of President Barack Obama's immigration reform last week, it wasn't just a blow to the administration's goal of assuring the parents of U.S. citizens that neither they nor their children will be deported. It was a challenge to the way federal agencies operate -- one that could change how future administrations make policy.

The central issue in the case has nothing to do with the separation of powers, or with the widespread objection that Obama has “bypassed Congress.” The only question is this: When do executive agencies have to give the public an opportunity to comment on their policies before those policies go into effect?

QuickTake Swerving Path to Citizenship

The answer matters, because the government often learns from what members of the public have to say. Public comments may suggest that the government’s original proposals aren't quite right, or even badly wrong -- and agencies frequently alter their proposals in response. (This was certainly my experience when I served as administrator of the Office of Information and Regulatory Affairs from 2009 to 2012, and most people who work on federal rules would say the same thing.) But the court’s decision raises the question of what the law requires, and here, the Obama administration is on pretty firm ground.

Everyone agrees that in general, a legally binding rule has to be preceded by a period for public notice and comment. Under the Administrative Procedure Act of 1946, the Environmental Protection Agency (for example) can't require power plants to reduce greenhouse gas emissions without giving people a chance to raise objections and concerns.

Everyone also agrees that if an agency issues “general policy statements,” the requirement for notice and public comment doesn't apply. Suppose the Food and Drug Administration says it will consider six factors in deciding whether to initiate enforcement actions against pharmaceutical companies, or the attorney general says she will seriously consider giving greater leniency against drug offenders. There’s no need to allow public comment before making such announcements.

The hard cases arise when a reform isn't legally binding, but looks fixed and firm. Suppose the FDA says it won't fine pharmaceutical companies that take certain actions to reduce adverse side effects from drugs. Some lower courts have said that the agency has, in effect, issued a rule -- and must give the public an opportunity to comment in advance.

That’s the principle that, in the lower court’s view, doomed a central part of Obama’s immigration reform. As the court saw it, the administration had announced that if immigrants meet certain criteria, they are entitled, as a matter of right, to receive “deferred action” status, meaning they get to stay in the U.S.

Specifically: If you have a child who is a U.S. citizen or lawful permanent resident, if you have continuously resided in the U.S. since January 1, 2010, and if you haven’t committed a crime, you'll probably be entitled to deferred action status, and so won't get deported. According to the court, that’s not a general policy. It’s a rule -- and it has to be preceded by a public comment period.  

In its appeal to the Supreme Court, the administration can make two powerful arguments. The first is that as the deferred action program was constructed, it really isn’t fixed at all. Immigration officers are required to consider the individual facts before making the final call; the judgment about “whether an immigrant is granted deferred action will be determined on a case-by-case basis.” In this light, the program doesn’t appear to establish a firm rule.

The second argument would represent a more fundamental challenge to the lower court’s reasoning: So long as the government isn't compelling anyone to do anything, it is under no obligation to provide a public comment period. If an agency announces that it will not undertake enforcement action against certain people, it has created a general policy; it hasn't issued a rule, even if the announcement is unequivocal.

Reasonable people can disagree with both of the two arguments. True, the deferred action program calls for “case-by-case” decisions on individual applications -- but the lower court insisted that as the program actually operates, immigrants who meet certain criteria are essentially entitled to deferred action.

In numerous cases, lower courts have argued that if it looks like a rule and acts like a rule, it’s a rule. On purely pragmatic grounds, that’s appealing: Shouldn’t the public be allowed to comment before the executive branch establishes major reforms to national immigration policy or anything else?

As a matter of policy, that’s a fair question. But strictly as a matter of law, the Obama administration has the better of the argument. The Supreme Court should agree to hear what it has to say -- and ultimately rule in its favor.  

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story:
Christopher Flavelle at cflavelle@bloomberg.net