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.
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 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.
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.
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: — 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.
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.