PHOENIX - Attorneys for Gov. Jan Brewer told a federal judge Monday there is no legal basis to order the state to provide driver's licenses to certain illegal immigrants immediately, since they are not being harmed.
Douglas Northup, the lead counsel for the governor and the state Department of Transportation, said those who qualify for the Obama administration's "deferred action" program want U.S. District Judge David Campbell to require the state to issue licenses, even before the case goes to trial. The governor directed ADOT last year not to give licenses to those granted the right to remain in this country and work here under the program.
Northup said the challengers based their arguments on the idea that immigrants' inability to get a license hinders the ability to work and function as fully participating members of society.
But in legal pleadings Monday, Northup noted, "The individual plaintiffs are getting to work, school and going about their daily lives without driver's licenses and without serious impediment." Northup told the judge there is no reason to believe anything will change if he does not issue the injunction.
"They generally plan to continue doing exactly what they are doing now," Northup wrote. And he said without irreparable harm, the judge cannot summarily order the state to issue driver's licenses.
But the lawyers representing the five individuals challenging Brewer's directive said the program, known formally as Deferred Action Childhood Arrival, does authorize them and others similarly situated to be in the country. That, they argued, makes Brewer's action illegal and requires Campbell to overturn it.
In their own legal filings Monday, the challengers made some attacks of their own. They argued that Brewer has failed to show the policy of denying driver's licenses to those in the program was based on any real or legitimate state interest.
"The record evidence confirms that defendants issued their policy based on the impermissible purpose of singling out a politically unpopular group for differential treatment," wrote Nicholas Espiritu for those challenging the governor.
A court hearing is slated for later this month for Campbell to decide whether he should immediately order the state to start issuing licenses to the potentially 80,000 Arizonans who are eligible for deferred action.
Central to the debate is a 1996 Arizona law that says those seeking a state license must show their presence is "authorized under federal law."
The program, unveiled last summer, says the federal government will not try to deport those who arrived before age 18, are not yet 30 and meet certain other conditions. That status is good for two years, renewable infinitely.
It also provides work authorization cards to those who ultimately qualify.
Brewer contends the deferred action program announced last year by the Obama administration does not authorize anyone to be in the United States but simply says they will not be deported, at least for the time being.
On Monday, Northup went a bit further. He does not contend the program is illegal, conceding Homeland Security Secretary Janet Napolitano has the authority to grant deferred action. But he said that does not give the program the force of law.
"It serves only as a general guide and advises federal agents how to exercise their discretionary power to prosecute federal immigration law," Northup wrote. He said federal policy cannot invalidate state laws.
Northup also said that Homeland Security officials have said deferred action does not require states to provide driver's licenses but instead leaves that issue up to each state.
On StarNet: Find extensive coverage of immigration issues at azstarnet.com/border