Time is running out for Arizona to keep licenses out of the hands of dreamers.
Without comment, the 9th U.S. Circuit Court of Appeals on Tuesday rejected a plea by Gov. Jan Brewer to hold off enforcing its ruling that she and the state Department of Transportation are acting illegally in refusing to issue licenses to 25,000 Arizonans accepted into the federal Deferred Action for Childhood Arrivals program. Brewer had sought time to prepare a petition asking the U.S. Supreme Court to review – and overturn – that 9th Circuit ruling.
Jennifer Newell, attorney with the American Civil Liberties Union said the clock is now working against Brewer and her legal team.
“Now that the 9th Circuit’s denied it, Arizona has to decide whether they want to go forward,” she said. “If they decide they want to go forward to the Supreme Court, then they would have to ask the Supreme Court for a stay.”
Gubernatorial spokesman Andrew Wilder said just such a petition is being prepared.
It remains unclear whether the high court would intervene.
That’s because the current legal issue is not whether the DACA recipients are legally entitled to licenses. Instead the only question currently before the courts is whether they should be allowed to drive while the lawsuit, filed two years ago, makes its way through the legal system.
Any petition for a state would have to be presented to Justice Anthony Kennedy who has first-line review over any cases coming out of the 9th Circuit. Kennedy could act on his own or refer the question to the full court.
It should not take long to get an answer.
Newell said that unless the Supreme Court intercedes, the 9th Circuit ruling declaring Arizona’s policy illegal takes effect seven days from Tuesday’s denial. And that, in turn, would require U.S. District Court Judge David Campbell, who is handling the legal challenge, to issue an order directing ADOT to start issuing licenses to dreamers who meet all the other legal qualifications for an Arizona driver’s license.
The court case stems from the 2012 decision by the Obama administration not to try to deport some people who arrived in this country illegally as children. The program entitles them to seek a renewable two-year exemption from being deported as well as permission to work legally in this country.
Brewer, however, issued an executive order declaring they are ineligible for Arizona licenses, citing a 1996 state law saying applicants must be “authorized” to be in this country. She contends an administrative decision not to pursue people here illegally is not authorization – something Brewer says can come only from Congress – even if the dreamers are entitled to work.
Campbell found fault with Brewer’s action, pointing out Arizona had been issuing licenses to others in different federal deferred action programs.
But without a full trial on the issue, he declined to order Brewer to provide the licenses at that time. Campbell said there was no evidence the dreamers were being irreparably harmed, one of the legal requirements for an injunction.
A three-judge panel of the 9th Circuit, however, ruled otherwise, a decision the full appellate court refused to overturn.
If the high court decides to take a look, that will bounce the issue into next year – and into the administration of Doug Ducey who takes over from Brewer on Jan. 5. Ducey spokesman Daniel Scarpinato said that, for the time being, his boss is deferring to the decisions of the current governor. But dreamers should not expect any radical change in the state’s position. Scarpinato said the governor-elect stands by statements he made during the campaign saying he believes the “privileges and benefits” of driving should be limited to those who are here legally.