PHOENIX — With barely a month left in office, Gov. Jan Brewer is making a last-ditch effort to keep driver’s licenses out of the hands of “dreamers.”
Her attorneys are asking the 9th U.S. Circuit Court of Appeals to delay an order requiring the Arizona Department of Transportation to issue licenses to those who qualify for the Deferred Action for Childhood Arrivals program.
Timothy Berg, Brewer’s outside legal counsel, said the governor first wants a chance to convince the U.S. Supreme Court the state policy of denying the licenses is legally valid.
However, it won’t be Brewer who pursues the issue.
She leaves office on Jan. 5, essentially dumping the legal fight into the lap of Doug Ducey, who will succeed her on that day. Based on his statements during the campaign, Ducey is likely to continue the legal fight.
“I don’t think anyone gets the privileges and benefits of hardworking Arizona families that are paid for by hardworking Arizona taxpayers,” he said at a debate.
Jennifer Chang Newell, an attorney with the Immigrant Rights Project of the American Civil Liberties Union Foundation, criticized the move.
“Two courts have now made clear that Arizona’s driver’s license policy is unconstitutionally discriminatory,” she said, referring to a three-judge panel of the 9th Circuit and a subsequent ruling by the full court.
“Rather than do the right thing, the governor has decided to continue to waste taxpayer money and try to take her vendetta against these young immigrant dreamers to the Supreme Court,” Newell said.
There was no immediate response from Brewer’s press office.
The filing comes as U.S. Citizenship and Immigration Services has released updated numbers of those who are seeking or have qualified for DACA status.
To date, more than 25,000 Arizonans have applied, with 22,000 approved. The report also shows that more than 1,200 dreamers who got in the program early already have been approved for another two years.
Only five states have larger numbers of DACA recipients.
In his legal filing, Berg argues there are valid legal questions about the appellate court rulings that the Supreme Court has to resolve. He said the issues address both federal immigration law and states’ rights.
He also contends ADOT will be “irreparably harmed” if the agency is forced to start issuing licenses to dreamers, which could lead to arguments Arizona also has to provide licenses to hundreds of thousands of others who could qualify to remain under a broader deferred action program announced just last month by President Obama.
Berg said if the Supreme Court ultimately sides with Brewer, then ADOT would have to set up a program to recall and cancel all those licenses.
The DACA program, unveiled two years ago, allows those who arrived in this country illegally as children to remain if they meet other conditions. It essentially is a policy where the Department of Homeland Security agrees not to seek deportation.
Acceptance into the program is good for two years, and is renewable.
Brewer says the policy lacks force of law and therefore does not actually “authorize” anyone to be in this country. That contention is critical because a 1996 Arizona law says licenses are available only to those whose presence is “authorized by federal law.”
The 9th Circuit, in its ruling, said the Arizona law interferes with the ability of dreamers to work, something specifically permitted them under DACA.
Berg does not dispute that federal law trumps Arizona law. But he said the 9th Circuit was wrong in deciding that DACA qualifies.
“Not all agency actions have the pre-emptive effect of law,” he wrote, contending the only time regulations and policies can pre-empt state laws is when they have gone through a formal rule making procedure — something that was not done here.
“The DACA memorandum ... is merely an internal directive providing a general policy statement regarding the Department of Homeland Security’s current enforcement policies,” Berg said, noting the memo setting up the program specifically says DACA status “confers no substantive right, immigration status or pathway to citizenship.”
