U.S. Supreme Court Justice Anthony Kennedy has given challengers of the law until Tuesday morning, to tell him why the court should reject a request by Gov. Jan Brewer to delay a federal court ruling in favor of those accepted into the federal government’s Deferred Action for Childhood Arrivals program. Court protocols give Kennedy purview over cases coming out of Arizona and other states in the 9th Circuit.
At that point, Kennedy could refer the issue to his colleagues. But he also is free to decide the question on his own.
Absent Supreme Court intervention, the 9th Circuit ruling saying dreamers should get licenses while their lawsuit proceeds takes effect at the end of the day Tuesday. And that requires U.S. District Court Judge David Campbell, who is hearing the case, to issue an injunction as early as Wednesday morning directing the state to start providing licenses to DACA recipients who meet all the other legal requirements.
Attorney Jennifer Chang Newell of the American Civil Liberties Union told Capitol Media Services there is no reason for Kennedy to even consider what Brewer is asking.
Newell said that Timothy Berg, the governor’s legal counsel, is trying to convince Kennedy that forcing Arizona to license dreamers infringes on the inherent right of states to decide who can drive. In his legal briefs, Berg is arguing that the 2012 policy adopted by the Obama administration does not trump a 1996 state law – or at least Brewer’s interpretation of it – which says licenses can be issued solely to those whose presence in the United States is “authorized by federal law.”
But she called those arguments “totally irrelevant to our case.” And she mocked the bid for Supreme Court intervention.
“This is a last-ditch attempt by a lame duck (governor) to save an obvious unconstitutional and discriminatory policy,” Newell said.
Newell said the decision by the 9th U.S. Circuit Court of Appeals in favor of letting dreamers drive while the lawsuit proceeds was not based on that question of preemption.
Instead, the appellate judges said they believe the dreamers are ultimately likely to succeed in their claim that denying them licenses violates the Equal Protection Clause of the U.S. Constitution. That’s because the record showed Arizona was issuing licenses to others in different federal deferred action programs even as the state denied that same privilege to DACA recipients.
Likelihood of success in a lawsuit is a key factor in whether a federal court issues an injunction – in this case, an order to Arizona to start licensing dreamers – before there is a final ruling in a dispute.
Gubernatorial press aide Andrew Wilder said Newell is misstating the state’s case. He pointed out that Berg’s legal brief contains arguments that the 9th Circuit used the wrong legal standard to reach its conclusion that Brewer’s policy likely runs afoul of the Equal Protection Clause.
But Wilder acknowledged that Berg and Brewer do want Kennedy and the high court to look at the underlying question of preemption.
Berg contends that DACA is little more than a policy decision by the Obama administration to let a group of people here illegally. And Berg said the justices need to decide whether DACA, laid out in a memo, can override the right of a state to decide who is allowed to drive.
Wilder said that clearly is the position of the Obama administration. In fact, the Department of Justice actually submitted its own legal brief to the 9th Circuit contending that the policy is enough to force Arizona to license the dreamers.
The dreamers are not challenging the 1996 law. Instead they are attacking an executive order issued by Brewer declaring that those accepted into the DACA program are not “authorized” to be in this country.
Brewer contends only Congress can provide such authorization. And she said the decision not to try to deport people who came here illegally as children does not “authorize” their presence, even if DACA recipients are given papers by the Department of Homeland Security allowing them to work in this country legally.