President Obama's administration faces a difficult and possibly lengthy legal battle to overturn a Texas court ruling that blocked his landmark immigration overhaul. In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans. The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in the Federal Register as well as an opportunity for people to submit views in writing.
The "notice and comment" requirement acts as a brake on all presidents, slowing their plans by months or years.
The requirement, though, does not apply to "interpretative rules" or general statements of policy, an exception that Justice Department lawyers said applied to Obama's announcement in November. Rules that must be submitted for notice and comment are sometimes known as "legislative rules."
For Hanen, the pivotal question became whether the new rules, such as granting work permits to potentially millions of illegal immigrants, was binding on federal agents or merely general guidance. He ruled that they were binding, and that Obama should have allowed for notice and comment.