The pre-Christmas news dump didn’t disappoint this year with President Obama making one of his most controversial midnight rulemakings so far.
Although dormant for years, the Department of Homeland Security decided that Dec. 23 (just 28 days before the transition) was apparently the right time to repeal the National Security Entry-Exit Registration System (NSEERS) — a 25-year-old program expanded after 9/11 that requires aliens from high-concern countries to regularly check-in with the agency.
Apparently, in response to open-borders groups’ theatrical claims that President-Elect Trump was gearing up for a mass “muslim registry”, the administration not only killed the program, but fast-tracked and finalized the move without public consultation.
The stealth repeal makes the type of moratoriums against non-final regulatory moves, so common with incoming administrations, impossible. To restart the program, Trump will now have to go through the long notice-and-comment process all over again.
Fortunately for the president-elect, there’s little chance the exemptions DHS claimed to push through the repeal could ever withstand judicial scrutiny.
Under federal law, agencies generally must consult with the public before they propose rulemakings and rule repeals. The process of soliciting and responding to comments from the public however, can take months, sometimes years.
Further, agencies are generally required to pause final regulatory moves for 30 days after they’re announced in order to let affected parties prepare. Considering there was only 28 days between the announcement and the Jan. 20 transition day, either of these requirements, if followed, would have kept the Obama administration from burying the program for good.
In ensuring against the repeal being overturned by Trump, the government exempted itself from normal regulatory procedure. DHS states in its federal register announcement that it had “good cause” not to inform the public about the repeal on the ground that the regulatory move was simply procedural, not substantive, and that soliciting comments therefore would have been "unnecessary as far as the public’s concerned."
This is because the program’s been "underutilized," the agency stated. But, such a claim seems spurious given the fact that NSEERS could have been terminated years ago, but wasn’t, and that former DHS Secretary Janet Napolitano had apparently felt the regulatory framework was worth keeping.
Moreover, it’s simply not good government that because a substantive rule has been "underutilized" means it can be repealed on procedural grounds.
According to the D.C. Circuit, skipping notice-and-comment on the ground that it’s “unnecessary” is permissible only for “routine determinations” involving minor or technical rules.
But, the underlying NSEERS regulation is anything but minor, especially considering 61 million voters just elected a president who made selective immigration-standards, fighting terrorism, and sensible, targeted profiling major parts of his platform.
With nearly 600 terrorist acts occurring since 9/11, with big upticks in activity over the last few years, it’s likely Trump would have utilized the existing program in some form. As an element in the fight against terror, the American public, both pro- and anti-immigration control, would have had a serious interest in contributing to any discussion about its repeal.
At the very least, if it needed to repeal NSEERS post-haste, DHS could have promulgated an interim rule, then created an opportunity for public comment afterwards. Instead, they wanted it dead and buried before Trump entered the White House.
For this obvious showing of bad faith on the part of the agency, a court should vacate the stealth repeal of NSEERS. Outside of that, Congress should exercise its authority under the Congressional Review Act to overturn the move. This should be done for good government, if anything else.
Ian Smith is an attorney in Washington, D.C. and an information associate with immigration enforcement advocate, the Immigration Reform Law Institute.
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