Notice & Comment

No Harm, No Foul in Texas v. United States

Is the Obama administration’s deferred action program for the parents of citizens and legal permanent residents (DAPA) a legislative rule? The Fifth Circuit says it probably is, the administration swears it isn’t. The fight matters because, if DAPA is a legislative rule, it should have gone through notice and comment. With its cert grant in Texas v. United States, the Supreme Court has agreed to take up the question.

I find the whole debate very odd. It’s true that DAPA itself didn’t pass through the formal notice-and-comment process (although a rule extending work authorization to those with deferred action status did go through notice and comment back in the 1980s.) It doesn’t follow, however, that the administration never gave notice of DAPA or afforded the public an opportunity to comment. Quite to the contrary. Of all the possible defects in the deferred action program, lack of public input was not one of them.

The summer and fall of 2014 witnessed an intense public debate over unilateral executive action on immigration. After making vague noises for months, the administration, on July 25, leaked details of its deferred action proposal to the L.A. Times. Every major media outlet picked up the story, alerting the states and interest groups that the administration hoped to expand the administration’s prior exercise of enforcement discretion—Deferred Action for Childhood Arrivals (DACA)—to the parents of citizens, legal permanent residents, and Dreamers. Five days later, President Obama announced from the Rose Garden that he was “beginning a new effort to fix as much of our immigration system as I can on my own, without Congress.”

The wisdom and legality of the administration’s proposal became a flashpoint in the 2014 midterm elections, so much so that the administration delayed announcing DAPA until after the elections in a (failed) effort to protect vulnerable Senate Democrats. Public officials, including many from Texas, objected vociferously to expanding DACA to cover more unauthorized immigrants. On Fox News, for example, the governor-elect of Texas, Greg Abbott, said that “we are concerned that there will be a new surge in border activity in part because of the potential action the President may take” and warned Obama not to overstep his constitutional authority. On the eve of DAPA’s announcement, CNN reported that congressional Republicans “have spent months preparing for the announcement by warning of executive overreach and political well-poisoning.”

When the administration released DAPA in November, it responded to the critics and explained at length why the policy was both desirable and legal. In particular, the Office of Legal Counsel released a dense and closely reasoned opinion explaining why DAPA was a lawful exercise of the president’s enforcement discretion. As if to demonstrate just how seriously it took the legal concerns, OLC concluded that DHS couldn’t legally extend DAPA to the parents of the Dreamers.

When it comes to notice and comment, then, what exactly did the administration fail to do? Yes, it never published the proposed policy in the Federal Register, as the APA requires. But the administration supplied notice in a much more effective manner: it leaked the proposal to the national media and held a Rose Garden press conference. The administration also didn’t respond to comments, point by point, in a document titled “Final Rule.” But it did address, in writing, the most substantial objections to the program.

The APA doesn’t demand anything more rigorous than that. Under §553, an agency that wishes to adopt a rule must publish a “[g]eneral notice of proposed rule making,” allow the public to comment, and “incorporate in the rules adopted a concise general statement of their basis and purpose.” That’s it. Nothing in the APA requires elaborate formalities.

What’s more, the APA requires courts to take “due account … of the rule of prejudicial error.” Where’s the prejudice here? After all, the administration signaled what it planned to do in a manner that anyone paying attention heard. It took seriously the criticisms that arose in the ensuing public debate. And it responded at length to the most serious of those criticisms. With all this, why isn’t it incumbent on Texas to explain what good a more formal notice-and-comment process would have done?

The lack of fit between error and remedy in Texas v. United States exemplifies what I have come to regard as a systematic inattention to remedial questions in administrative law. The courts, for example, are apt to say that notice and comment “obviously would be eviscerated” if agencies weren’t harshly rebuked for skipping it. They never notice that their remedial rigidity eviscerates a different part of the APA: the command that “due account … be taken of the rule of prejudicial error.”

More importantly, the courts don’t seem to get that agencies typically want feedback and work hard to get it. Because the formal notice-and-comment process is not the only way to solicit public input—or even a very good way—agencies frequently use listening sessions, workshops, conference calls, interest-group meetings, and strategic leaks to learn more about the acceptability and appropriateness of what they’re considering. Indeed, the administration deployed a number of those tactics in the run-up to DAPA.

Yet the possibility that any error might be harmless is so far beyond the pale that the administration hasn’t even made the argument. I think that’s a shame. It makes a fetish of procedure to insist on adherence to the Kabuki-like formalities of notice and comment. By any measure, the administration’s actions substantially fulfilled the APA’s requirements. What more does Texas want?

This post has been cross-posted at Balkinization.

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