The administrative law article was cited by the dissenting opinion in the federal immigration case.
“Congressional Administration,” a 2006 paper by Harry Elwood Warren Scholar and Professor of Law Jack Beermann, was recently cited by the dissenting opinion in a federal immigration case, State of Texas v. USA. Beermann’s paper, published in the San Diego Law Review, examines the balance of power in the administration of laws, with particular attention to the role Congress plays in the process.
The central issue in the case is President Obama’s executive action on immigration, which would have directed the Department of Homeland Security to prioritize the deportation of undocumented felons while offering paths to citizenship for certain undocumented parents of US citizens and parents of legal permanent residents.
In February, a federal district court in the southern district of Texas blocked the enactment of the President’s plan, arguing that the government failed to comply with rule-making procedures in federal law, making the case about administrative law rather than immigration or constitutional law. The federal government appealed to the United States Fifth Court of Appeals and was granted a hearing, which occurred in mid-April. The three-judge panel handed down its decision in late-May, ruling two-to-one to continue blocking the executive order.
Judge Stephen Higginson dissented, noting that, “absent constitutional constraints or extremely compelling circumstances the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”
Drawing from Professor Beermann’s examination of the balance of federal powers, Higginson goes on to argue that the case should not have been adjudicated, but should have been left to the federal political branches “so that nationwide concerns and practicalities are weighed, Congress’s purse dispensed as it chooses, and the Executive refines its enforcement priorities or is compelled by Congress to do so.”
Professor Beermann has authored or co-authored four books on administrative law, including a widely used casebook and the Emanuel Law Outline on the subject. His articles have appeared in prominent American journals such as theStanford Law Review, UCLA Law Review, Duke Law Journal, and Boston University Law Review, and in foreign law journals including Germany’s Rechtstheorie and China’s Administrative Law Review.