Attorney General Mark Brnovich is making a last-ditch effort to let Gov. Doug Ducey deny driver’s licenses to “Dreamers.”
Legal briefs filed Wednesday ask the U.S. Supreme Court to overturn rulings by the 9th U.S. Circuit Court of Appeals which concluded that those in the Deferred Action for Childhood Arrivals program are in this country legally. More to the point, the judges said Arizona has no right to unilaterally decide the issue for itself.
That is precisely what Jan Brewer did in 2012 when she issued an executive order declaring that DACA, instituted by the Obama administration, did not entitle those accepted into the program the right to drive.
Brewer is gone.
But Ducey, her successor, has refused to rescind the executive order. And that has left Brnovich, as the state’s chief lawyer, to defend the order.
Hanging in the balance is the question of whether the DACA program overrides the state’s right to decide who can drive.
The 2012 federal policy allows those who arrived in this country illegally as children to remain if they meet certain other qualifications. They also are entitled to documents allowing them to work here legally.
At last count, there were more than 27,000 Arizonans in the program.
But just days before the Department of Homeland Security began taking applications, Brewer issued an executive order directing the Arizona Department of Transportation to not issue licenses to DACA recipients.
Brewer cited a 1996 state law that says licenses are available only to those whose presence in this country is “authorized by federal law.”
She argued that the federal agency really had no legal authority to permit DACA recipients to remain or work. And what that meant, Brewer said, is they were not “authorized” to be here.
That argument failed to persuade federal appellate judges, who said Arizona cannot decide for itself who is legally entitled to be in the country.
In Wednesday’s filings, Brnovich told the justices that neither Brewer, in issuing the executive order, nor Ducey, in continuing to enforce it, is doing anything wrong.
“The DACA memo itself stressed that it ‘confers no substantive right, immigration status or pathway to citizenship,’” Brnovich wrote.
In fact, he said, the Office of Legal Counsel within the U.S. Department of Justice said in its own writings that DACA “does not establish any enforceable legal right to remain in the United States — and it may be revoked by immigration authorities at their discretion.”
Brnovich also said that what Obama did is not part of any federal law or even the result of Congress directing a federal agency to adopt a rule.
“Rather, DACA purports to be mere prosecutorial discretion,” he said. “As such, it is not federal law.”
What that means, Brnovich said, is those who want driver’s licenses cannot rely on the employment documents issued solely because of DACA to prove they are eligible to drive.
“A discretionary, revocable program of non-enforcement, which was created by executive action alone, cannot preempt state law regulating driver’s licenses,” Brnovich wrote. And he said even the federal appellate judges acknowledged that granting licenses is a “traditional police power,” something that can be preempted only when Congress clearly states it intends to preempt state law.
Inherent in the state’s arguments is the contention that Obama exceeded his authority in establishing the DACA program.
No federal court has specifically addressed that issue. But Brnovich pointed out that the 5th U.S. Circuit Court of Appeals has blocked a subsequent Obama program known as Deferred Action for Parents of Americans, essentially a bid to allow adults who are the parents of children born here to remain.
In that case, the judges said the Obama administration violated the federal Administrative Procedure Act because it acted unilaterally and did not go through the normal rule-making process when creating DAPA. The majority in that case also concluded the president’s actions may be contrary to federal law.
The issue remains ripe because President Trump, who has the authority to abolish DACA, has chosen not to do so. In fact, the new president has indicated he believes there are reasons to allow those who arrived in this country as children to stay.
Not everything the 9th Circuit decided was based strictly on its interpretation of the authority of the president to defer deportation versus the Arizona law on who gets to drive.
Judge Harry Pregerson, writing for the three-judge panel that made the first ruling, said the policy instituted by Brewer was motivated by “a dogged animus” against Dreamers.
“The Supreme Court has made very clear that such animus cannot constitute a legitimate state interest and has cautioned against sowing the seeds of prejudice,” Pregerson wrote. “The Constitution’s guarantee of equality must at the very least mean that a bare desire to harm a politically unpopular group cannot justify disparate treatment of that group.”
