Arizona’s “dreamers” will keep their licenses to drive – at least as long as the Deferred Action for Childhood Arrivals program remains in existence.
The U.S. Supreme Court on Monday rebuffed the last-ditch plea by Attorney General Mark Brnovich to uphold a 2012 executive order by then-Gov. Jan Brewer to deny licenses to DACA recipients, an order current Gov. Doug Ducey has left in place. The justices gave no reason for their ruling.
Monday’s ruling ends years of efforts by the state to claim that the decision by the Obama administration to allow those in the program to remain in this country and work does not mean they are “authorized” to be here.
That verbiage is significant.
It was shortly after the action by Obama that Brewer directed the state Department of Transportation to deny licenses to DACA recipients. She cited a 1996 Arizona law that says state licenses are available only to those whose presence in this country is “authorized by federal law.”
Brewer argued that the U.S. Department of Homeland Security has no legal authority to permit DACA recipients to remain and work. And what that meant, Brewer said, is they were not “authorized” to be here.
That argument failed to persuade federal appellate judges who said Arizona cannot decide for itself who is legally entitled to be in the country. In fact, Judge Harry Pregerson wrote that the state policy “appears intended to express animus toward DACA recipients.”
With today’s high court action, that ruling is now final.
At last count there were about 30,000 DACA recipients in Arizona.
ADOT does not have current figures on how many of them have been issued licenses while the case was pending. The last update, in April 2016, showed more than 21,000 DACA recipients with licenses.
Brewer told Capitol Media Services she was disappointed not only in Monday’s ruling but also in the fact that the Department of Justice, now under the control of Donald Trump who she supported for president, asked the Supreme Court to reject Arizona’s petition. And the former governor said she still maintains that she was correct in arguing that Arizona has the right to decide who does and does not get a state-issued driver’s license.
“Obviously, they trampled all over the Tenth Amendment,” she said, which says powers not delegated to the United States by the Constitution “are reserved to the states respectively, or to the people.” And she called DACA “an illegal Obama executive action that trumped states’ rights.”
That essentially was the same argument Brnovich made to the high court. He said that what Obama did was not done as part of any federal law or even the result of Congress directing the Department of Homeland Security to adopt a rule.
In fact, he argued, the Office of Legal Counsel within the U.S. Department of Justice said in its own writing that DACA “does not establish any enforceable legal right to remain in the United States — and it may be revoked by immigration authorities at their discretion.”
Brewer said Monday’s ruling leaves just two options going forward.
One is for Trump to rescind DACA, something the president has tried to do.
But those efforts have so far been blocked by a federal judge. The Supreme Court has refused to intercede, at least not now, meaning there will be no final decision before at least this fall.
The other, said Brewer, is for Congress to finally address the question, in statute, of whether DACA recipients should be allowed to stay. That would not only moot any question of whether they are “authorized” to be here but make it clear that they are entitled to the same rights and privileges as other legal residents who are not citizens, like licenses.
Brewer was not optimistic that might happen.
“I don’t hear a whole lot of that stuff going on,” she said.
Brnovich said the justices “sidestepped the underlying issue of whether President Obama had the authority to create DACA.”
Karina Ruiz, executive director of the Arizona Dream Act Coalition, which sued to overturn Brewer’s policy, had a different take.
“DACA recipients in Arizona can declare victory in our fight to end the state’s malicious attack that spanned six years and two governors and was aimed at stripping us of basic civil rights,” she said in a prepared statement.
Nicholas Espiritu, attorney for the National Immigration Law Center, said Monday’s ruling also undermines a separate legal bid by Ducey to deny licenses to those in other deferred action programs. That includes domestic violence victims, those with pending visa applications and those allowed to stay for humanitarian reasons.
The state actually had been granting them licenses until the legal fight with DACA recipients. But that changed when the state decided to deny driving privileges to them, too, in a bid to say that DACA recipients were not being unfairly singled out.
Gubernatorial press aide Daniel Scarpinato said Monday’s ruling is being reviewed before making a decision whether to keep paying outside legal counsel to continue the court fight playing out in federal court in Phoenix.