Following my post last night about the DOJ’s “struggles” of how to proceed from Judge Hanen’s ruling, I went back through the transcript and looked for references to notice-and-comment. Should DOJ have been on notice this was a possible grounds for resolution? Well, yeah.
On p. 44, Judge Hanen asked the US:
THE COURT: Does it matter in this case — and I didn’t ask Mr. Oldham this, but I will before we’re done today, so — but I’ll start with you because you’re — does it matter, No. 1, we’re not dealing with a regulation that has gone through notice and comment?
The United States (as best as I can tell) did not respond to this point.
On p. 68, during rebuttal Texas addressed it several times:
The entire point is to ensure that when people are aggrieved by the way that the government is making legislative rules, that we have an opportunity to have public comment and that they reach a reasoned, nonarbitrary and non-capricious decision that takes in — that takes into account the views of affected people. So that’s the APA.
And p.80
So what are the reasons? They’re all eligibility criteria. These are not from statute. These are not from the 27 provisions that Congress gave. They’re not from the regulations that have been — that people have opportunities to challenge through notice and comment.
And p. 83
Now, once it’s a substantive rule, then it triggers a whole host of remedies for the plaintiffs under the Administrative Procedure Act. First, the notice and comment requirements are quite easy and straightforward for the Court in the sense that the United States has conceded that they did not issue this directive through notice and comment. The State of Texas, none of the plaintiff states, none of the members of the public has ever had a chance to offer public input into what the defendants have done, much less have they responded in a notice and comment on rule making to the public input that the states would have offered if we had been given the opportunity
The court came back to it, asking the government one more time on p. 100:
THE COURT: — just to eliminate things. I mean, Mr. Oldham argued — and I’m asking you this because I think you will agree with this — is that if the APA applies and if the states have a ripe standing to sue under the APA, I mean, the injunction is good, isn’t it? I mean, y’all haven’t gone through the notes [sic] of the publication and comment procedure that would otherwise if the APA applies.
Only then did the US get around to addressing the question, and Hartnett explains DAPA is exempt. (pp.100-101).
MS. HARTNETT: Right. So that — that’s a separate — that would be regardless of whether it’s like in the enforcement paradigm of Heckler, that would be the type of general policy guidance that would be immune from notice and comment.
But the judge’s followup questions seemed he wasn’t content with that answer.
It was definitely a live issue that the judge asked about. DOJ should have foreseen this as a possible ground for a resolution.
I still can’t figure out why they were caught flatfooted by it! From the outset, I’ve been amazed at how cavalierly DOJ has approached this. With Obamacare, they had a serious plan and defense from the outset. Neal Katyal was brought in at a very early stage (after SG Kagan told him to).
Here, the OLC memo was strikingly vulnerable, and DOJ’s initial brief in the Texas case was very weak. Hartnett’s performance was poor. She wasn’t able to answer many of Hanen’s questions, evaded others, and candidly seemed somewhat unprepared. The sur-reply, after Hartnett argued got a lot better.
I can’t quite figure out why this wasn’t take seriously from the get-go.