Arizona tests delayed deportation policies (UPDATED)
on Dec 11, 2014 at 3:49 pm
UPDATED 5:31 p.m. Justice Kennedy has called for a response to this application, to be filed by noon (Eastern time) next Tuesday, December 16.
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State officials in Arizona, seeking to block undocumented immigrants from getting driver’s licenses even if they have been spared from deportation, asked the Supreme Court today to examine new Obama administration moves on immigration policy. This marked the first time that the Court has been drawn into the tense national debate over President Obama’s actions on immigration without waiting for Congress to act on a new law.
The Arizona application (14A625) is here; a challenged decision of the U.S. Court of Appeals for the Ninth Circuit is here. A federal district court ruling in the case is here.
Although the application is written in sweeping terms, contending that the Obama administration had no authority in 2012 or this year to delay deportation of individuals who entered the U.S. illegally and is refusing to enforce immigration law, its actual legal target is the impact of those policies on the question of who can get a driver’s license in Arizona.
It thus is not as direct a challenge to the president as a recently filed lawsuit, in a federal trial court in Brownsville, Texas, by twenty-four states — including Arizona — against the new policies. A separate, narrower lawsuit against the administration’s latest action, by an Arizona county sheriff, has been filed in a federal trial court in Washington, D.C.
Moreover, Republican leaders of the House of Representatives are reportedly considering adding a challenge to the new immigration orders to an already pending lawsuit challenging White House actions in implementing the Affordable Care Act.
All of those other legal challenges, however, are months and perhaps more than away from the Supreme Court, while Arizona’s new application — though limited — will give the Supreme Court an early look at the Obama initiatives. The official documents that the government issued on the delayed-deportation actions are attached to Arizona’s application (in the exhibits here and here).
Under a policy that Arizona has followed for years, no one can obtain a driver’s license without proof that he is legally present in this country, under federal law. Previously, the state would issue such a license to someone who was not a citizen but had been issued a work permit so that he could seek employment in the U.S.
The dispute that the state’s governor and other state officials have now taken to the Supreme Court involves the effect on its driver’s license policy of both the so-called “Dreamers” directive issued in 2012 and the deferred deportation policy announced by President Obama last month.
Under the June 2012 initiative, the federal government decided to put off for two years the deportation of undocumented immigrants under the age of thirty-one who were brought to the U.S. when they were children. That policy allowed those individuals to seek work permits.
After Arizona refused to recognize work permits held by “Dreamers” who benefited from the new deferral policy, the state was sued by five of those individuals, along with an advocacy organization, the Arizona Dream Act Coalition. A federal judge ruled that the state lacked any “rational basis” for denying them licenses, and thus violated their right to legal equality, but the judge refused to order the state to change its policy, finding that the “Dreamers” were not likely to suffer any real harm from the denial while the case proceeded in court.
The Ninth Circuit ruled that the judge should have issued a preliminary order to block the denial of driver’s licenses while the case moved forward. The court of appeals found that the young applicants were likely to ultimately win their claim to equal protection under the Fourteenth Amendment. Other non-citizens, the three-judge panel ruled, are allowed to use such work permits as proof that they are in the U.S. legally and thus obtain driver’s licenses, so denial of that privilege to “Dreamers” was unconstitutional.
One of the judges on the panel also said that the Dreamers were likely to win on their separate claim that federal policy displaced Arizona’s policy on the legal significance of an immigrant’s work permit. That judge concluded that Arizona had created a new immigrant category, which federal law does not permit states to do.
Arizona, in taking the dispute on to the Supreme Court, acknowledged that the order requiring it to change its policy was only in a preliminary form, but it argued that the Ninth Circuit had actually re-written an existing Arizona law, rather than blocking a new law from taking effect.
Although the application focuses on the impact of the 2012 “Dreamers” policy, it also extended its argument to last month’s deferred deportation policy, which removed the ate limit and extended the deferral option by a year, to three years. The application treats both of the initiatives as a form of “informal federal agency law” that was not authorized under federal immigration law.
The federal government, the state’s filing argued, can defer individual deportations, but the deferral process “is not meant to be used in the way” that the administration has done in 2012 and this year. The expansion of deferral announced last month, the state said, is an attempt to “unilaterally create, change or violate federal immigration law….Congress is solely responsible for making federal immigration law.”
The technical request by Arizona is for the Supreme Court to put the Ninth Circuit’s ruling requiring Arizona to change its driver’s license policy on hold, until after the Supreme Court acts on an appeal that Arizona will be filing. Its request was filed with Justice Anthony M. Kennedy, who handles emergency legal matters from the geographic region of the Ninth Circuit; Kennedy can act on his own or share action with his colleagues.
State officials indicated that, when they file their appeal in this case, they will be arguing that the government’s deferred deportation policies violate both the constitutional doctrine of separation of powers and the constitutional protection of states’ rights in a federalist system.
“If Executive Branch policy statements have preemptive force over issues assigned by the Constitution to Congress, the separation between the legislative and executive branches is significantly undermined and core principles of state sovereignty will easily be eroded,” the application contended.
And, it added, the Tenth Amendment “mandates another layer of separation of powers between the federal government and the states.”
The Obama administration initiatives, the filing said, reflect a policy not to enforce “well-established federal law,” turning “principles of separation of powers and federalism upside down.”
