President Barack Obama seemingly loves to invite controversy and criticism for using executive discretion to rewrite or ignore federal law. He and his allies apparently believe that when critics say his actions violate the Constitution, most people assume the dispute is too complex to understand or simply motivated by ideology.
So perhaps what’s needed to focus the public’s attention is a straightforward line of argument that shows Obama deliberately disregarding a bright line rule.
If so, Judge Andrew Hanen may have found it.
On Tuesday, Hanen granted a temporary injunction to Texas and more than twenty other states suing to stop Obama’s unilateral amnesty from going into effect. The reason is simple. By announcing the plan without any advance notice, Obama violated the Administrative Procedure Act.
The APA is a very important but little known federal law that tries to rein in the administrative state by requiring agencies to give notice and accept comments before implementing changes in policy. Because Obama did not comply with this very simple rule, his amnesty plan is, in effect, illegal.
The Obama administration is already working on an appeal to the Fifth Circuit, and time will tell whether this very straightforward application of the law to the facts is undone somehow with lawyerly sleight-of-hand.
In the meantime, critics of the Obama administration’s disregard for the rule of law can enjoy the fact that, for the moment at least, the most activist president in modern times is being stymied by the very Act that makes governmental activism possible.
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