The U.S. Supreme Court on Dec. 17 rejected a last-minute bid by Gov. Jan Brewer to keep thousands of dreamers living in Arizona from getting licenses to drive.
In a brief order, the court denied Brewer’s request that it block the 9th Circuit from ordering a federal judge in Phoenix to issue a preliminary injunction blocking the governor’s edict declaring that dreamers do not meet the requirements of Arizona law. The justices gave no reason for their decision.
The order was not unanimous: Justices Antonin Scalia, Clarence Thomas and Samuel Alito did side with Brewer and would have given her at least a chance to convince the full court that the 9th Circuit got it wrong and that dreamers are not entitled under Arizona law to get licenses to drive.
“This order is a big holiday gift to dreamers and a lump of coal for Gov. Brewer,’’ said Jennifer Chang Newell, an attorney with the American Civil Liberties Union. “It’s time for Arizona leaders to put this unwise, discriminatory policy behind them and let it end with Gov. Brewer’s term.”
That’s not likely to happen.
Brewer told Capitol Media Services the case should continue to a full-blown trial, even if the injunction gives dreamers the right to drive in the interim.
“This is about states’ rights,” she said.
But Brewer noted it ultimately will be up to Doug Ducey, who becomes governor on Jan. 5, to decide whether to pursue the issue or let it drop. Ducey press aide Daniel Scarpinato was noncommital about whether his boss will follow Brewer’s lead.
“The governor-elect has been very clear about his position on this issue,” Scarpinato said, noting statements by Ducey saying the privilege to drive should be reserved for those here legally. But he also said Ducey “will review all pending litigation after he is sworn in and make determinations accordingly.”
How quickly dreamers will be able to actually get licenses remains unclear.
Even after the 9th Circuit issues its formal “mandate,” it is up to U.S. District Court Judge David Campbell to actually issue the preliminary injunction ordering Arizona to make the licenses available to those in the federal government’s Deferred Action for Childhood Arrivals program..
Campbell could do that immediately or seek input from attorneys from both sides. There is no set deadline for Campbell to act.
And Brewer said the state Department of Transportation is not going to do anything until it hears from the judge.
The order most immediately affects 22,000 Arizonans who have been accepted into DACA. That program, announced by the Obama administration in 2012, says those who arrived in this country illegally as children and meet other conditions can stay without fear of deportation as well as work.
But Linton Joaquin, an attorney with the National Immigration Law Center, said the logic behind the 9th Circuit ruling in favor of the dreamers also should help other Arizonans get licenses.
These are people covered by the administration’s November directive to provide similar relief from deportation to more than 5 million others also in the country illegally. Based on national figures, the number of Arizonans affected easily could reach 150,000.
“This broader group also is going to be authorized to remain in the United States and to work,” Joaquin said, the same privileges granted to DACA recipients.
Brewer, however, remains convinced that neither DACA recipients nor those subject to the new order are “authorized” to be in this country.
That word is crucial because a 1996 state law says licenses are available only to those whose presence in the United States is “authorized by federal law.” Her executive order to ADOT to deny licenses to dreamers is based on her contention that an administrative decision to let some people stay, absent congressional approval, is not authorization.
Joaquin said the decision to issue the preliminary injunction allowing dreamers to drive shows that Brewer is wrong.
“They are authorized to work and they are authorized to be present,” he said of DACA recipients.
But in ordering Campbell to issue an injunction, the 9th Circuit did not directly address that question.
Instead, the appellate judges pointed out that ADOT had for years been issuing Arizona licenses to others in this country who the Department of Homeland Security had put into different “deferred action” programs allowing them to stay, such as victims of domestic violence. The court said that distinction violated the constitutional right of equal protection of dreamers.
That equal protection issue also factored into the decision by the U.S. Department of Justice to weigh in on behalf of the dreamers, urging the appellate judges to void the Arizona policy.
Assistant Attorney General Lindsey Powell told the court that Arizona has no legal right to decide that some people the federal government allows to remain in this country are “authorized” to be here, while others are not.
“Arizona may not substitute its judgment for the federal government’s when it comes to establishing classifications of alien status,” she wrote.
Brewer, however, said she remains convinced none of this should be a federal issue. And she chided the Obama administration for having an inconsistent policy of deciding when to weigh in on a question of what she considers states’ rights.
For example, she said Arizona has legalized marijuana for medical use and even allowed for state-regulated shops even though the drug remains illegal under federal law.
“And the federal government and our president says, ‘I don’t care, do whatever it is that you want,” the governor said.
“But when it comes down to something that is definitely a state responsibility and right, that is giving licenses to those that reside in our state, they step in and they want to usurp that responsibility from us,” Brewer continued. “That is wrong.”