Monday, March 16, 2015

Judge Hanen’s Misconceptions and the Legality of Deferred Action


Influential administrative law professor Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University, on the ACS Blog offers a detailed legal analysis of the Judge Hanen's decision to grant the preliminary injunction in Texas v. United States.  He concludes

"DAPA deserves to be upheld on its merits, and, for that reason, I concur in Judge Hanen’s generous treatment of standing and constrained view of nonreviewability. But agencies should not be discouraged through the imposition of onerous public comment-and-response requirements from casting their nonenforcement policies as clear public statements of enforcement priority and implementation strategy. DAPA is a plainly lawful exercise of the DHS Secretary’s responsibility to set national enforcement priorities and his authority to make rules appropriate to implementing our immigration laws. A court with a more clear-eyed view of DAPA should say so on the merits." (emphasis added).


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