(Bloomberg) — The Obama administration’s bid to set aside a Texas judge’s order that derailed its immigration reform plans may pivot on a narrow finding that policy makers failed to follow federal rules for drawing up new guidelines.

At the request of 26 states, U.S. District Judge Andrew Hanen, whose courthouse sits in the Texas border town of Brownsville, blocked the new program late Monday. It would have let as many as 5 million people who illegally entered the country avoid deportation.

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The U.S. Justice Department may decide as early as Friday to ask that the ruling be put on hold as it appeals it, a person familiar with the matter said Thursday.

The states sued the federal government last year after Homeland Security Secretary Jeh Johnson issued a series of memoranda to those agencies responsible for immigration matters. The memos established new deferred-action policies enabling some undocumented immigrants to remain in the U.S. and apply for work permits and some government benefits.

The suing states accused the Obama administration of overstepping its constitutional authority and of sidestepping the normal process for rule-making.

Hanen, in his 123-page decision, said he didn’t need to reach the constitutional issue yet. He addressed the more limited question of whether the policy was invalid because the DHS hadn’t made its new rules public, such as by publishing them in the Federal Register, and hadn’t invited public comment before they took effect.

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Survive Appeal?

The judge’s chosen method means his order could survive an initial appeal, said David Weber, an immigration law professor at Creighton University in Omaha, Nebraska.

“The issue that he chose to rule on is a procedural rule, rather than a substantive rule,” Weber said. Hanen, nominated by President George W. Bush in 2002, didn’t “get into the issue of whether the executive branch has the power” to do what it did, focusing instead on the means it used.

Justice Department attorneys told Hanen the administration didn’t need to follow the federal Administrative Procedure Act on rule-making because its policy shift wasn’t a formal rule. The change was merely “guidance” that immigration agents were to follow at their discretion, they said.

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What counts as mere guidance and what’s rule-making is “a close question,” said Michael Dorf, a constitutional law professor at Cornell University in Ithaca, New York.

“The law in this area is not very well developed,” Weber, the Creighton professor, said. “There isn’t a lot of clear guidance on what the distinction is.”

Strong Footing

Celia Munoz, the White House Domestic Policy Council director, told reporters during a Feb. 17 conference call after the ruling: “We believe we’re on very strong legal footing.”

The immigration policy is “fully consistent with the executive branch’s authority under the law,” Munoz said, adding that the administration expects to prevail on appeal.

While Hanen didn’t rule on the underlying merits of the states’ complaint, he telegraphed his views on them, Cornell’s Dorf said.

Hanen discussed at length what he called the administration’s “complete abdication” in the enforcement of U.S. immigration policy as well as actions he said Homeland Security’s Johnson took in contravention of congressional intent.

“The secretary is not just rewriting the laws; he is creating them from scratch,” Hanen wrote.

The judge said DHS’s decision to disregard entire sections of immigration law gave him the opportunity to judicially review the agency’s actions. Under other circumstances, he might not have that right, he said.

Independent Research

He also made references in his ruling to recent immigration statistics and human traffickers who kidnapped a local college student and forced her to drive smuggled immigrants to an inland location, information that wasn’t put before him by the parties.

Hanen’s independent research “undermines the credibility of his opinion,” Dorf said, as does his use of “code words that make it look like an anti-administration rant. That sort of rhetoric undermines his credibility” and improves the administration’s chances on appeal.

The judge has drawn attention for a previous ruling blasting the Obama administration’s immigration policy for “turning a blind eye to criminal conduct.” The judge in 2013 accused the Department of Homeland Security of complicity in cross-border child smuggling.

Texas chose to file the lawsuit in the state’s southernmost point, where it said in its complaint Brownsville has a front-row seat at the “humanitarian crisis” that has swept as much as 1,000 undocumented immigrants a day, many of them unaccompanied children, across the border in the past year.

Two Judges

The federal courthouse there has just two judges, Hanen and Hilda Tagle, an appointee of Democratic President Bill Clinton. They evenly split all incoming civil cases, according to the court’s website and a courthouse clerk who confirmed the case-assignment protocol but declined to give her name.

Josh Earnest, White House press secretary, told reporters the administration wasn’t surprised by Hanen’s injunction.

“This is something we were prepared for,” he said during a Feb. 17 press call with reporters. “Those who are veteran court watchers were not surprised by this particular judge’s ruling based on his previous statements on this issue.”

While the administration pursues a suspension and ultimate reversal of Hanen’s ruling, Dorf said the government should proceed as quickly as possible.

“It’s less important what the appeals courts will do than how long it takes them to do it,” he said. That way, if the New Orleans-based appellate court refuses to overturn Hanen, the administration can turn to the U.S. Supreme Court, where it could request emergency handling of the case.

“They need to get this stay lifted quickly,” Dorf said of the Obama administration. Otherwise, protracted appeals could push the issue into next year, when “we’re right in the middle of the presidential elections.”

The case is State of Texas v. U.S., 14-cv-00254, U.S. District Court, Southern District of Texas (Brownsville).

To contact the reporters on this story: Andrew Harris in federal court in Chicago at aharris16@bloomberg.net; Laurel Brubaker Calkins in Houston at laurel@calkins.us.com

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net Patrick Oster

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