[Ed. – New, retooled NRO: now as ugly as all the other political websites.]
Unfortunately, I think it is likely that an appeals court will reverse Judge Hanen’s decision because it tried — too cleverly — to avoid the fundamental issue of the president’s duty to enforce the law by relying instead on a technical aspect of the law governing administrative agencies. But when the case returns to the trial court, the judge will have to face the critical conflict between the Obama policy and the executive’s constitutional duty to “take Care that the Laws be faithfully executed.”
Judge Hanen, who sits in Brownsville, Texas, issued a 123-page opinion explaining why Texas and 25 other states had the right to challenge the Department of Homeland Security. That part of the decision, which showed how the states were harmed by the federal policy, and so had “standing” to sue in federal court, is likely to be upheld on appeal. …
But the second part of the opinion, which found the states likely to prevail on the merits, is likely to be reversed. Judge Hanen, I’m afraid, here decided the case on the wrong ground. Here, he found that the Obama administration had violated the Administrative Procedure Act (APA) for failing to give the public notice and an opportunity to comment on its new policy on enforcement of the immigration laws. The court did not reach the constitutional issue: whether a President can refuse to enforce federal law, not because it violates the higher law of the Constitution, but because he disagrees with Congress’s policy choices. Unfortunately, I think that Judge Hanen may well be reversed on appeal. The conclusion that the Obama administration should have complied with the APA is doubtful, in my view.