Judge Hanen’s reasoning is set out in an opinion that is over 120 pages. But in essence, as the judge himself summarizes, the injunction is being issued “due to the failure of the defendants to comply with the Administrative Procedure Act.” As I explained when the lawsuit was first filed by the states back in December, the Administrative Procedure Act governs the issuance of new rules and regulations by government agencies. It requires public notice and opportunities to comment before a substantive rule can be enacted and bars arbitrary or capricious actions by agencies.
The most crucial decision made by Judge Hanen in this early stage of the lawsuit is that, contrary to the Justice Department’s claim, the states are legally allowed to bring this lawsuit because they are going to suffer concrete, measurable costs from the Deferred Action for Parents of Americans and Lawful Permanent Residents program, that is to say, they have standing. For example, it will cost states millions of dollars in mandatory fees set by federal law when these states have to process additional driver’s licenses.
As Hanen pointed out, “legalizing the presence of millions of people is a ‘virtually irreversible’ action once taken.”
(DHS) cannot “enact a program whereby it not only ignores the dictates of Congress, but actively acts to thwart them.” In fact, the Homeland Security secretary “is not just rewriting the laws; he is creating them from scratch.”