PHOENIX — Gov. Jan Brewer is asking a federal appeals court to rebuff efforts by the Obama administration to let “dreamers” drive here legally, saying the government is trying to void a valid state law with what amounts to little more than a federal policy.
The governor, through her attorneys, is asking judges of the 9th U.S. Circuit Court of Appeals to reject claims by the U.S. Department of Justice that Arizona has no legal right to deny licenses to those in the federal Deferred Action for Childhood Arrivals program.
Brewer is not challenging the right of the administration and the Department of Homeland Security to not deport people who arrived in this country illegally as children, or giving them permits to work.
But she said the DACA program was not enacted by Congress and “does not have the force of law.”
That means it cannot be used to pre-empt a 1996 Arizona law that says licenses are available only to those who can prove their presence in this country is “authorized under federal law,” she said.
Brewer’s filing is an effort to get the full court to reconsider and overturn a decision earlier this year by a three-judge panel, which found legal problems with the ban.
The judges ordered the state to start issuing licenses to the dreamers while the case makes its way through the legal system. But that order effectively remains on hold while the full appellate court considers whether to hear Brewer’s appeal.
Brewer argues the 1996 Arizona law allows licenses to be issued only to those “authorized” to be in this country. She contends the decision by the president and the Department of Homeland Security not to deport those brought to this country illegally at a young age does not make their presence “authorized,” even if they are given work papers.
That argument did not convince the three-judge panel.
Judge Harry Pregerson noted the state has issued licenses to those who granted deferred action under other federal programs. He said that makes Brewer’s policy to single out these individuals a violation of the equal-rights clause of the U.S. Constitution.
Pregerson also said an injunction is appropriate because the policy can cause “irreparable harm” to those affected. He said their inability to legally drive also makes it more difficult, if not impossible, for them to hold jobs — a specific right they have in the DACA program.
When Brewer sought review by the full court, the Obama administration weighed in.
“Arizona may not substitute its judgment for the federal government’s when it comes to establishing classifications of alien status,” wrote Assistant Attorney General Lindsey Powell.
She said Arizona has shown no “substantial state purpose” in enacting rules allowing some not legally in this country to have licenses while others are denied. Powell said that means Brewer’s edict is “pre-empted by federal law.”
But Brewer, in her latest filing, said there’s a flaw in that argument: DACA is only policy.
“The United States ignores the fact that no federal law is at issue here,” wrote Douglas Northup, lead private attorney hired by Brewer to defend the license ban. Instead, he said, it is “an agency’s policy memo, which was issued without notice and comment or subject to any formal rule-making processes.”
And he said a mere agency policy cannot pre-empt the Arizona law.
Northup said statements by federal officials back up that contention.
For example, he cited a memo issued by Janet Napolitano, when she was the Department of Homeland Security, who said DACA provides no substantive rights, immigration status or a path to citizenship.
“Only Congress, acting through its legislative authority, can confer these rights,” the memo states. “It remains for the executive branch, however, to set forth policy for the exercise of discretion within that framework,” Napolitano continued. “I have done so here.”
Northup also is hanging his legal hat on the fact the U.S. Department of Health and Human Services says DACA recipients are not “lawfully present” in this country for purposes of participating in certain federal programs.
“The fact that there may be disagreement among federal government agencies about the import of the DACA memo underscores why one policy memo of one agency cannot pre-empt state action here,” he wrote.
Northup acknowledged the three-judge panel said the ADOT policy could result in DACA recipients being hampered in their legal ability to work.
But he said that was based on the court’s assumption that a certain percentage of Arizona workers commute by car. Northup said that makes no sense, as it could mean that the Arizona policy might be legal in some other cities with a higher percentage of workers using mass transit.