Having read through the 123-page opinion, I think it’s fair to say that the key sentence is this one, on page 112:

In sum, this Court finds, both factually based upon the record and the applicable law, that DAPA is a “legislative” or “substantive” rule that should have undergone the notice-and-comment rule making procedure mandated by 5 U.S.C. § 553.


What this means is that the president’s executive amnesty is not an exercise of prosecutorial discretion at all, but rather an attempt by an executive branch to adopt a regulation subject to the Administrative Procedure Act (APA). That may not sound like much, but it’s potentially huge. It goes to the very heart of what Obama has done here and elsewhere, which is to elevate the power of case-by-case prosecutorial discretion to a general legislative power.


The issue that’s ultimately at stake here is constitutional, and goes to the separation of powers between the legislative and executive branches. But the court didn’t reach the constitutional issue, because it found a statutory basis for its ruling, namely the Administrative Procedure Act, which carefully defines what an executive agency must do when it exercises rulemaking authority.

The reason DHS didn’t resort to a full-blown APA rulemaking in the first place is the real key to this whole story: Congress has not delegated DHS the authority to adopt the substantive elements of the executive amnesty as a regulation. “In fact,” writes Judge Hanen in the decision, “the law mandates that these illegally-present individuals be removed.”

When proponents of the executive amnesty criticize the court’s decision, they should be asked specifically whether they think the Congress has delegated to DHS the authority to adopt the amnesty as a regulation. If they answer “yes,” then they should be asked whether the administration erred in not going through the process spelled out in the APA. If they answer “no” then that should be the end of the story.


(Jonathan Keim has more on the rulemaking point on Bench Memos.)