Come Monday, thousands of dreamers can get in line at the Motor Vehicle Division to apply for licenses.
And if they meet all the other requirements, pass the written and road tests and pay the require fee, they can walk out with documents entitling them to legally drive.
U.S. District Court Judge David Campbell issued a preliminary injunction on Thursday specifically requiring Gov. Jan Brewer and any employees of the Arizona Department of Transportation to accept federally issued work-authorization documents as proof that people are “authorized under federal law to be present in the United States,” at least for the purpose of obtaining a driver’s license. That overrides negates a 2012 executive order by Brewer declaring that work documents given by the U.S. Department of Homeland Security to those in the Deferred Action for Childhood Arrivals program do not prove they are authorized to be in this country and do not entitle them to Arizona licenses.
Campbell also directed that his order covers not just the five individual dreamers who filed suit but to anyone in DACA. He pointed out that Brewer’s policy also was challenged by the Arizona Dream Action Coalition, meaning its members also are entitled to drive.
But the judge did not stop there.
He acknowledged the coalition may not include all the approximately 22,000 Arizonans who have so far qualified for DACA. But he said trying to deny licenses to other DACA recipients who are not coalition members makes no sense.
“Requiring state officials at a driver’s license window to distinguish between DACA recipients who are members of the coalition and those who are not is impractical,” Campbell wrote.
Thursday’s injunction does not end the legal fight. Brewer still has the option to ask the U.S. Supreme Court to review a decision by the 9th U.S. Circuit Court of Appeals which declared the state policy is likely illegal and the dreamers should be entitled to drive while the case goes forward.
But the majority of the high court earlier this week showed little interest in the issue, with the justices voting 6-3 to reject her request that they block Campbell from issuing an injunction until the full court reviewed the case.
In the meantime, Campbell scheduled a hearing for Jan. 7 on whether he should make the injunction permanent. That will provide Brewer’s lawyers one more chance to argue that her policy is legal.
The governor has an uphill fight: In issuing the preliminary injunction Thursday, Campbell already concluded that the challengers “are likely to succeed” in proving that Brewer’s policy is illegal.
There was no immediate response from ADOT.
Campbell did agree to delay his injunction until Monday to give state officials the chance to spread the work that the federal employment authorization cards issued to DACA recipients are now acceptable to prove someone is eligible to get a license. But Jennifer Chang Newell, an attorney with the American Civil Liberties Union, said that should not be difficult.
She pointed out that Arizona had accepted these documents for years from those in other federal deferred action programs, such as victims of domestic violence, to meet the requirements of a 1996 Arizona law that makes licenses available only to those whose presence in this country is “authorized by federal law.”
It was only after President Obama unveiled DACA in 2012 that Brewer issued an executive order declaring that those accepted into that program – and only that program – are not “authorized.” She directed ADOT not to accept their work documents as proof.
And when attorneys for dreamers pointed out to Campbell the inconsistency of the state policy, ADOT responded by deciding MVD would stop issuing licenses to all deferred action recipients, including those who had previously qualified.
It was that disparate treatment that ultimately resulted in the 9th U.S. Circuit Court of Appeals ruling earlier this year that Brewer’s policy was illegal because it violated the equal protection rights under the U.S. Constitution of DACA recipients.
In an interview with Capitol Media Services, Brewer conceded that the prior decision of licensing those in other deferred action programs probably undermined her legal arguments to keep licenses out of the hands of dreamers.
“The Department of Motor Vehicles was doing something – issuing licenses prior to that – irresponsibly because it wasn’t legal,” she said. “So I did my executive order to do what was right legally.”
Brewer acknowledged that her order on dreamers affects those who were brought here illegally as children, people who had no choice in the matter. But she said that does not change the fact they are not here legally and, from her perspective, not entitled to a state-issued driver’s license.
“We did not bring them,” the governor said.
“Their families broke the law,” Brewer continued. “They knew what the consequences were.”
Brewer said there will come a point at which the question of dreamers needs to be addressed.
“But I will tell you, I don’t think America is ready to do that until our borders are secured,” she said.
Newell said Thursday’s injunction should also cover potentially 150,000 or so others in Arizona who could qualify for an expanded deferred action program announced just last month by the president.
It now includes others such as the parents of U.S. citizens and lawful permanent residents who have been present in this country since the beginning of 2010.
“Under the reasoning of the 9th Circuit decision, anyone with deferred action should be able to get their work permit accepted by the state of Arizona,” Newell said. And that, she said, returns Arizona to the way MVD worked prior to Brewer’s executive order when all federally issued work permits were accepted as proof of authorization to be in this country.