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 shield millions of
people from deportation, U.S. District Judge Andrew Hanen avoided
diving into sweeping constitutional questions or tackling
presidential powers head-on. Instead, he faulted Obama for not
giving public notice of his plans.
The failure to do so, Hanen wrote, was a violation of the 1946
Administrative Procedure Act, which requires notice in a publication
called the Federal Register as well as an opportunity for people to
submit views in writing.
The ruling, however narrow, marked an initial victory for 26 states
that brought the case alleging Obama had exceeded his powers with
executive orders that would let up to 4.7 million illegal immigrants
stay without threat of deportation.
"It's a very procedural point – that he did this too quickly," said
Michael Kagan, a law professor at the University of Nevada, Las
Vegas.
Hanen's ruling left in disarray U.S. policy toward the roughly 11
million people in the country illegally. Obama said on Tuesday he
disagreed with the ruling and expected his administration to prevail
in the courts.
The U.S. Justice Department was preparing an appeal of Hanen's
temporary injunction to the 5th U.S. Circuit Court of Appeals in New
Orleans, Obama said. The court could consider an emergency request
to block Hanen's ruling, potentially within days, although most of
the 23 judges on the court were appointed by Republican presidents.
 There was no consensus among lawyers with expertise in
administrative law and immigration law on whether Hanen would be
reversed on appeal. But they said the judge was wise to focus on an
area of administrative law where legal precedent is sometimes fuzzy.
In the near term, the narrow approach allowed Hanen to issue a
temporary injunction barring federal agencies from putting Obama's
plans into place. An appointee of President George W. Bush, Hanen
had previously criticized U.S. immigration enforcement as too lax.
BRAKE ON PRESIDENTIAL ACTION
Hanen's ruling turned on the Administrative Procedure Act's
requirement that a proposed rule or regulation appear in the Federal
Register so people have a chance to comment. The Federal Register is
a daily journal of U.S. government proceedings.
The "notice and comment" requirement acts as a brake on all
presidents, slowing their plans by months or years.
The requirement, though, does not apply to "interpretative rules" or
"legislative rules," an exception that Justice Department lawyers
said applied to Obama's announcement in November.
For Hanen, the pivotal question became whether the new rules, such
as granting work permits to potentially millions of illegal
immigrants, was binding on federal agents or merely general
guidance. He ruled that they were binding, and that Obama should
have allowed for notice and comment.
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Lawyers with expertise in administrative law said there was little
guidance from the U.S. Supreme Court on what qualifies as a rule
that needs to be published, leaving disagreement among lower courts
and a grey area for Hanen to work in.
"The case law as to what qualifies as a legislative rule is
remarkably unclear," said Anne Joseph O'Connell, a University of
California Berkeley law professor.
LENGTHY PROCESS LOOMS
O'Connell said it was hard to predict how the appeals court would
rule in the end, although she thought it was likely the court would
lift Hanen's temporary injunction and allow the Obama administration
to begin putting its program in place.
The subject is not strictly partisan, she said, because sometimes a
liberal interest group might favor a strict requirement for notice
and comment.
An appeal before the 5th Circuit could take months, as lawyers file
written briefs and the court holds oral argument and comes to a
decision.
The appeals court could also consider other questions, such as
whether the states that brought the lawsuit had what is known as
standing to sue or whether Obama violated the clause of the U.S.
Constitution that requires presidents to "take care that the laws be
faithfully executed."
There is no chance Obama would begin the notice-and-comment period
now, because U.S. immigration policy would be frozen in place during
the lengthy process, said Peter Margulies, an immigration expert at
Roger Williams University School of Law in Rhode Island.
He said it could delay Obama's policy for "a minimum of six to eight
months, and potentially much longer."
(Reporting by David Ingram and Mica Rosenberg in New York and Julia
Edwards in Washington; Editing by Noeleen Walder and Stuart
Grudgings)
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