PHOENIX — The decision on whether “dreamers” get to drive legally in Arizona is going right down to the wire.
U.S. Supreme Court Justice Anthony Kennedy has given challengers of the law until noon Tuesday, Washington time, to tell him why the court should reject a request by Gov. Jan Brewer to delay implementing a federal court ruling to license those accepted into the federal government’s Deferred Action for Childhood Arrivals program, young immigrants commonly called dreamers.
Court protocols give Kennedy purview over cases coming out of Arizona and other states in the 9th Circuit. Kennedy could refer the issue to his colleagues. But he also is free to decide the question on his own.
That noon deadline portends a quick answer.
Absent Supreme Court intervention, the 9th Circuit ruling saying dreamers should get licenses while their challenge to the state policy takes effect at the end of the day Tuesday.
Once that happens, U.S. District Judge David Kennedy, who is hearing the case, is expected to issue an injunction as early as Wednesday morning directing the state to start providing licenses to DACA recipients who meet all the other legal requirements.
Attorney Jennifer Chang Newell of the American Civil Liberties Union said there is no reason for Anthony Kennedy to even consider what Brewer is asking.
Newell said Timothy Berg, the governor’s legal counsel, is trying to convince Anthony Kennedy that forcing Arizona to license dreamers infringes on the inherent right of states to decide who can drive. In his legal briefs, Berg argues that the 2012 policy adopted by the Obama administration does not trump a 1996 state law — or at least Brewer’s interpretation of it — that says licenses can be issued solely to those whose presence in the United States is “authorized by federal law.”
But Newell called those arguments “totally irrelevant to our case.” And she mocked the bid for Supreme Court intervention.
“This is a last-ditch attempt by a lame duck to save an obvious unconstitutional and discriminatory policy,” Newell said.
Newell said the decision by the 9th U.S. Circuit Court of Appeals in favor of letting dreamers drive while the lawsuit proceeds was not based on that question of preemption.
Instead, the appellate judges said they believe the dreamers are ultimately likely to succeed in their claim that denying them licenses violates the Equal Protection Clause of the U.S. Constitution. That’s because the record showed Arizona was issuing licenses to others in different federal deferred action programs, even as the state denied that same privilege to DACA recipients.
Likelihood of success of a lawsuit is a key factor in whether a federal court issues an injunction — in this case, an order to Arizona to start licensing dreamers — before there is a final ruling in a dispute.
Gubernatorial press aide Andrew Wilder said Newell is misstating the state’s case. He pointed out that Berg’s legal brief contains arguments that the 9th Circuit used the wrong legal standard to reach its conclusion that Brewer’s policy likely violates the Equal Protection Clause.
But Wilder acknowledged that Berg and Brewer do want Kennedy and the high court to look at the underlying question of pre-emption.
Berg contends DACA is little more than a policy decision by the Obama administration to let a group of people here illegally remain. And Berg said the justices need to decide whether DACA, laid out in a memo, can override the right of a state to decide who is allowed to drive.
Wilder said that clearly is the position of the Obama administration. In fact, the Department of Justice actually submitted its own legal brief to the 9th Circuit contending that the policy is enough to force Arizona to license the dreamers.
The dreamers are not challenging the 1996 law. Instead, they are attacking an executive order issued by Brewer declaring that those accepted into the DACA program are not “authorized” to be in this country.
Brewer contends that only Congress can provide such authorization. And she said the decision not to try to deport people who came here illegally as children does not “authorize” their presence, even if DACA recipients are given papers by the Department of Homeland Security allowing them to work in this country legally.
Follow Howard Fischer on Twitter at @azcapmedia.