Michael Kagan is co-director of the Immigration Clinic and an associate professor at the William S. Boyd School of Law.
On Nov. 22, Professor Kagan posted an essay on the ImmigrationProf blog arguing that the Court of Appeals for the Fifth Circuit was wrong to require an arduous administrative process known as "notice and comment" for President Obama's deferred action programs for immigrants (DACA and DAPA). He also suggested that the Department of Justice (DOJ) may also have erred by not pointing out strongly that the court was making a mistake in the way it interpreted the Administrative Procedure Act:
"The main impact of requiring notice and comment would be to empower unelected and unaccountable frontline DHS employees who happen to disagree with the elected President about how the immigration enforcement discretion should be used,” Professor Kagan said. “That would not be a good thing for American democracy.”
The essay also read: “I would also like to suggest that the Department of Justice has made a questionable strategic choice by trying to convince the Fifth Circuit that DAPA and DACA are not really binding on frontline DHS officials. DOJ has in essence argued a question of fact when the lower courts have primarily erred on a question of law. The Fifth Circuit has erred in the way it has defined ‘binding’ rules, and in so doing it has made it more difficult for the President to perform as Chief Executive when frontline public employees disagree with the President’s policy choices. While conservative legal thinkers (and judges) may generally oppose President Obama's immigration policies, they should be concerned about an approach to administrative law that makes it difficult for a President to direct federal agencies that are staffed by people with contrary policy preferences."
Professor Kagan spent a decade developing legal aid programs for refugees in the Middle East, and has written several of the most widely cited articles in the fields of refugee and asylum law.