NFIB to SCOTUS: Obama’s Amnesty Creates New Rules with no Public Comment

Date: April 04, 2016

Contact: Kelly Klass, 609-713-4243 or  

Small Business group says the executive order is essentially a new regulation that must go through the normal process 

Washington D.C. (April 4, 2016) – President Obama’s controversial executive order granting amnesty to potentially millions of undocumented immigrants badly undermines the regulatory process by creating sweeping new rules without public comment, said the National Federation of Independent Business (NFIB) today in a brief filed before the Supreme Court.

“The administration is essentially creating new laws with agency memos, new interpretations, guidance letters, and other informal documents and that’s not what the Constitution permits,” said Karen Harned, NFIB Small Business Legal Center Executive Director. “All of this is very dangerous for small businesses because they don’t have the notice and comment period to, at the very least, voice their concerns before new regulations go into effect.”

NFIB filed a brief before the United States Supreme Court in the case of the United States of America v. the State of Texas. The organization argues that the Department of Homeland Security failed to comply with the Administrative Procedure Act (APA) notice-and-comment requirement when issuing their controversial immigration memo in 2015.  The APA states that federal agencies must go through a public vetting process before issuing major policy initiatives.

It is not the first time the administration has sidestepped the public comment requirement, according to NFIB.  In fact, according to “The Fourth Branch and Underground Regulations,” a massive report which the organization released last year, there are dozens of cases in which the administration has imposed or changed regulations without allowing the opportunity for public scrutiny, or for concerned citizens to voice concerns. 

“This is a dangerously common practice now,” said Harned.  “When the President can’t get Congress to do what he wants he simply acts outside of the constitutional framework and changes the laws himself.  Our biggest concern is that powerful interest groups are having a disproportionate influence in setting regulatory policy when their ‘pick’ is in the White House. 

This should be a concern for all Americans, and we urge the Supreme Court to require every Presidential administration to respect the system of checks and balances.”


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