PASADENA, Calif. — Federal appellate judges grilled an attorney for the state Thursday over Arizona’s efforts to deny licenses to “dreamers,” with one suggesting it was nothing short of racism.
Judge Harry Pregerson pointed out that those in the federal Deferred Action for Childhood Arrivals program have been driving legally since a trial judge ordered the state to reverse its ban and begin issuing them licenses in December.
“We know — at least I know — that no horrible thing has happened on the highways of Arizona since this went into effect,” he said during arguments here.
He then addressed Assistant Attorney General Dominic Draye, who was asking the 9th U.S. Circuit Court of Appeals to reverse what the trial judge had ordered.
“What is the problem?” he asked.
“Does it come down to racism?” Pregerson continued. “Does it come down to discrimination against these people? What else does it come down to?”
That suggestion left Draye confounded.
“Judge, I wish you wouldn’t say things like that,” he responded.
But Pregerson would not back down.
“I’m saying it because it’s the truth,” the judge said.
Draye hopes to convince the appellate judges that the 2012 decision by the Obama administration to create the program does not trump a 1996 state law which says licenses are available only to those whose presence in the country is “authorized by federal law.” And he said DACA does not qualify.
“It’s an expression of current federal policy,” he said.
That policy says those who arrived as children and meet other qualifications can remain without fear of deportation. They also are issued documents which entitle them to work legally in this country.
“But it lacks the force of law because it’s neither a statute nor a formal rule making nor a regulation,” Draye argued. And he didn’t stop there.
“Even if it did have the force of law ... that law would be unconstitutional,” he said, adding that only Congress can enact statutes.
But the appellate judges weren’t buying the argument.
Judge Marsha Berzon pointed out that Draye wasn’t asking the appellate judges to void DACA, or even to rule that the Obama administration acted illegally. Instead, she said, Draye wants federal courts to decide that state Transportation Director John Halikowski can unilaterally decide who is “authorized by federal law” to be in the country and therefore ineligible to be licensed.
“He’s not an immigration expert,” complained Karen Tumlin, an attorney for the National Immigration Law Center, which with other groups has been challenging the policy. “He’s a transportation expert.”
Berzon appeared to agree, saying what the state wants here is “the authority to define federal law.”
Hanging in the balance is the ability of more than 23,000 Arizonans who have been approved for DACA to get state-issued licenses.
The most recent figures from ADOT show more than 10,000 licenses already have been approved since U.S. District Court Judge David Campbell voided the policy – the people Pregerson said have been driving without major incident.
One question that could affect what the court rules is who the judges believe really implemented the policy.
Draye said that it was Halikowski and not Jan Brewer — who was governor in 2013 when the policy was implemented — who made the determination that DACA recipients do not meet the legal requirements of the 1996 law.
That’s a crucial point in the state’s case.
That’s because Draye said federal courts, in general, are required to defer to how state officials interpret state statutes if they have a “reasonable basis” for that decision.
But Berzon said there’s a problem to that argument.
She acknowledged that Brewer in 2012 issued an executive order directing all state agency chiefs to review Arizona laws and regulations to determine how they might be affected by DACA. But Berzon then read to Draye from governor’s order, pointing out that Brewer told them to “initiate operational policy rule and statutory changes necessary to prevent deferred action recipients from obtaining eligibility, including driver’s licenses.”
Draye told Berzon that still left Halikowski some discretion. But the judge didn’t read it that way.
“She told him to do this unless there was some state or federal law that prevented it,” Berzon said.
The other hurdle the state has to overcome is the conclusion that it was acting in a discriminatory manner.
Draye acknowledged that until 2012 Arizona had issued licenses to anyone with a federal Employment Authorization Document, the exact same document that is provided to DACA recipients. It was only later the state concluded that only some categories of people with EADs who are not in the country legally should be licensed and some, like DACA recipients, should not.
That distinction weighed heavily in Campbell’s ruling that the state’s action amounted to a violation of the Equal Protection Clause of the U.S. Constitution.
“The court is not saying that the Constitution requires the state of Arizona to grant driver’s licenses to all noncitizens,” Campbell wrote at the time. “But if the state chooses to confer licenses on some individuals who have been temporarily authorized to stay by the federal government, it may not deny them to similarly situated individuals without a rational basis for the distinction.”
The appellate court gave no indication when it will rule.
