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Why DAPA Violates APA

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The Supreme Court, earlier this term extended the time that would normally have been slated for arguments on the immigration case this term, US v. Texas. This Monday, it heard those arguments.

Some background: the Obama administration has sought to implement a program it calls Deferred Action for Parents of Americans (DAPA), effectively allowing people in the US illegally to remain here, work lawfully, and receive other benefits that would otherwise be withheld from them by law.

One of the arguments against DAPA is that it violates APA. Also, that's the only argument that employs rhyming acronyms, so it is presumably the important one. APA is the Administrative Procedure Act, and it created notice and comment procedures for new administrative rules. Opponents of the Obama policy contend that DAPA is a new rule within the scope of APA, yet it was initiated without the proper notice-and-comment period, thus it is invalid.

Apparently it is the Secretary of Homeland Security who should issue the notice and receive the comments if any one should.

Legal scholars Ronald Cass and Christopher Demuth prepared a well-written amici brief making the case for a ruling against the administration on APA grounds.

The key point? DAPA goes beyond simply declining to prosecute, and changes the legal status of certain individuals, thus rendering APA applicable.


The grant of a license differs from an exercise of enforcement discretion because a license, by its
nature, changes the legal rights and obligations of the individual to whom the license is granted. When executive officials exercise discretion not to enforce the law in particular cases, the unprosecuted  remains a lawbreaker in the eyes of the law. In contrast, the grant of a license affirmatively authorizes the license holder to engage in conduct that would otherwise be unlawful. In the eyes of the law, the conduct is permitted, not just unprosecuted.
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