Arizona dreamers went to bed Tuesday night still not knowing if the U.S. Supreme Court will allow them to drive legally.
But what the justices think, at least now, may not matter. If they do not act, then the legal wheels start in motion and the state will be told to start issuing licenses.
The waiting game comes because, as of late Tuesday, Justice Anthony Kennedy had not issued any order, pro or con, on the last-minute request to him from Gov. Jan Brewer to at least temporarily block a federal appellate court ruling on the issue.
That ruling from the 9th U.S. Circuit Court of Appeals said a policy denying licenses to dreamers enacted by the Department of Transportation at Brewer’s direction is illegal. Brewer contends the appellate court got it wrong and wants that order put on hold until she can make her case to the Supreme Court.
Earlier Tuesday, attorneys for dreamers urged Kennedy to spurn her request. They said there is no reason for the high court to intercede now, particularly since there eventually still be a full-blown trial on the policy.
At some point, though, it will not matter what Kennedy or his colleagues think, at least on the immediate question of whether dreamers should be able to drive while the lawsuit proceeds: If Kennedy fails to act on Brewer’s request, he effectively will have denied it.
Attorney Jorge Castillo of the Mexican American Legal Defense and Educational Fund said federal appellate court rules say the clerk of the 9th Circuit “must issue” a final mandate of its ruling after seven days expire. And the last action by the appellate court was Dec. 9 when the judges rejected Brewer’s request for a stay.
That mandate would direct U.S. District Court Judge David Campbell, based in Phoenix, to issue an injunction prohibiting the state from enforcing its policy, at least for now.
“That’s what we would hope to see if there’s not action from Justice Kennedy,” Castillo said.
The question surrounds about 22,000 Arizonans already accepted into the Obama administration’s Deferred Action for Childhood Arrivals program.
DACA allows those who came to this country illegally as children to remain without fear of deportation. More significant for this legal fight, those who qualify are issued “Employment Authorization Documents” entitling them to work in the United States.
Brewer, however, cites a 1996 Arizona law which says licenses to drive are available only to those whose presence in this country is “authorized by federal law.” And she has argued that the unilateral administrative decision not to deport some people and even allow them to work does not “authorize” their presence.
The 9th Circuit disagreed, at least in part because Arizona actually had been issuing licenses to people in other deferred action programs before Brewer’s 2012 executive order on DACA recipients. So the appellate judges directed Campbell, who heard the original lawsuit, to enjoin Arizona “from enforcing its policy by which ADOT refuses to accept plaintiffs’ Employment Authorization Documents, issued to plaintiffs under DACA, for purposes of obtaining an Arizona driver’s license.”
Brewer responded by asking Kennedy, who has purview over 9th Circuit rulings, to intervene and block that order from going to Campbell. Kennedy, in turn, gave attorneys for the dreamers until noon Tuesday to explain to him why he should not do that.
How quickly any of this could translate into licenses for dreamers remains unclear.
Assuming the 9th Circuit orders Campbell to act, it would be up to him to fashion the wording of the injunction. He could do that on his own or seek input from lawyers from both sides, something that would delay the process.
In the interim, state transportation officials have said there will be no licenses – and people should not show up at the Motor Vehicle Division – unless and until an injunction actually is issued.
Even if the dreamers get licenses now, the possibility still remains that they ultimately could be taken away.
In siding with the dreamers in their request to be licensed now, while the full lawsuit proceeds, the 9th Circuit concluded that the challengers ultimately will succeed in proving that the policy is illegal. But that still leaves open the possibility that the state could convince federal courts otherwise.