Few public acts by Governor Jan Brewer have been so odious, so hateful and so obviously unfair as her executive order denying driver's licenses to those young men and women, brought here as children, who benefit from President Obama's Deferred Action for Childhood Arrivals.
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Brewer's August 15, 2012 order is so patently bigoted and spiteful that it almost trumps Brewer's signing of ex-state Senate President Russell Pearce's racist Senate Bill 1070.
But this is Sand Land, where little love or sympathy exists in GOP circles for brown folk, no matter how young and innocent.
Indeed, considering how backward this state is when it comes to racial and ethnic relations, I suppose we should be happy Brewer isn't on the Capitol lawn once a week burning a cross, her white sheet flapping in the wind.
The ACLU, the Mexican American Legal Defense and Educational Fund, and the National Immigration Law Center -- basically, the good guys -- are suing Brewer, seeking to halt Brewer's Executive Order 2012-06, blocking DREAMers from driving legally.
Lawyers for the different groups were in federal district court in Phoenix on Friday for oral arguments on a motion for preliminary injunction and a motion from lawyers for Brewer and ADOT seeking dismissal.
Plaintiffs want U.S. District Court Judge David Campbell to turn the clock back to the status quo ante. See, before Brewer's order, the Arizona Department of Transportation issued driver's licenses to all persons granted deferred action by the feds.
In fact, pursuant to Arizona Revised Statute 28-3153, ADOT "shall not issue to or renew a driver license or nonoperating identification license for a person who does not submit proof satisfactory to the department that the applicant's presence in the United States is authorized under federal law."
ADOT does this by accepting an alien's "employment authorization card" as proof he or she is "authorized under federal law" to be present in the U.S.
In response to Brewer's executive order, ADOT no longer takes the same EAD card from DACA recipients.
Incredibly asinine and mean-spirited, I know. But that's "GED Jan" for you, scorpion-snarfer par excellence. Brewer has even gone so far as to maintain publicly that the purpose of her order is: "No drivers licenses for illegal people."
Which is dumb. The U.S. Department of Homeland Security, acting under the authority granted to it by the U.S. Congress, is allowing these DREAMers, who meet certain requirements and pass a background check, to obtain a Social Security Card and an EAD. Meaning, they can work for two years and re-apply when the two years are up.
So why would we want to deny them a driver's license, when the federal government is allowing them to work?
It makes absolutely zero sense, except in the teeny-tiny worm-ravaged mind of Brewer, who knows this deplorable act earns her plaudits from the rednecks and the nativists who don't want to see these young men and women have a chance to better themselves, or just be able to drive a car legally.
Sick. Insane. Twisted. But these are not legal arguments, of course.
Their claim was twofold, that the state's policy is preempted by federal immigration law, and that the policy violates the equal protection clause of the 14th Amendment to the U.S. Constitution.
According to the equal protection clause, "No state shall... deny to any person within its jurisdiction the equal protection of the laws."
The plaintiffs' strongest argument seemed to be the 14th Amendment one, which was handled by Tumlin, while Newell took the preemption argument. Together they had an hour before Judge Campbell. Doug Northup of the firm Fennemore Craig argued on behalf of the defendants.
Newell told the judge that under the supremacy clause of the U.S. Constitution, it's pretty much the feds way or the highway when it comes to immigration, as was reaffirmed by the U.S. Supreme Court's SB 1070 ruling in Arizona v. U.S.
States can't "pick and choose" which immigration laws to follow, nor can a state like Arizona cook up "contrary and idiosyncratic" policies that do not jibe with the federal government's immigration strategy.
Only the feds have the authority to decide who is "authorized to be present under federal law," she explained.
Arizona's law demands proof that someone is so authorized. It can adopt the federal government's classification scheme, but it can not create its own.
Judge Campbell seemed hung up on the fact that the U.S. Department of Health and Human Services denies certain medical benefits to DACA recipients, though it grants them to others who are "lawfully present."
Newell went back to the language in the state law, which is slightly different. The phrase "lawfully present" can be "a term of art," she said.
Campbell, who stood behind a lectern throughout the preceding instead of sitting, seemed skeptical. He methodically played the part of inquisitor, putting Newell through the paces on legal issues such as the various types of preemption, and the intent of Congress in delegating authority on immigration to DHS.
Then it was Tumlin's turn. She told Campbell that Arizona's policy was "a policy of discrimination," because DACA-recipients are "singled out for unequal treatment."
She contended there was "no rational basis to support the policy," which prompted Campbell to bring up the situation with HHS again.
Tumlin said the federal government has certain privileges states do not enjoy. Moreover, Arizona's statute hinges on whether or not someone is "authorized under federal law" to be in the U.S. DACA recipients are so authorized.
She quoted Brewer's statement about "illegal people," as more evidence of irrationality and discriminatory intent.
"Individuals granted DACA are not `illegal' as the defendant maintains," she stated.
Tumlin batted down many of the other rationales offered for the policy: the tsunami of DACA-approved kids seeking driver's licenses did not materialize; the cost to the state is no more than with other driver's licenses issued, as fees are charged for the service; and DACA beneficiaries receive the same EAD card as other driver's license applicants, so there's no reason for looking into how someone scored an EAD card.
Northup, a somewhat rumpled guy who reminded me a bit of actor Paul Giamatti, did his best to defend the indefensible, claiming that the state is not preempted and that it was exercising a "core state right"
He also contended that DACA "results in a continued violation of federal law," prompting Campbell to accuse him of "punching a straw man."
Campbell asked if the state wasn't creating a "different classification" than the federal government.
Northup denied this was the case, insisting DACA-recipients are not lawfully present. Then he offered a weird analogy, saying it was as if he were to "get liquored up" and get a DUI, but the county attorney's office declined to prosecute him, though, "they still could" in the future.
The lawyer foundered when he asserted that DACA recipients had, as of the moment, "no hope of lawful status," though he conceded that he was not an "immigration expert."
Campbell then observed that the defense's own charts created as evidence indicated that since 2005, 505 persons with no lawful status and no hope of lawful status had received driver's licenses while the federal government "deferred action" on their cases, sometimes for humanitarian reasons, or the person was a witness to a crime and needed by the prosecution, or because their home country would not accept them.
Northup was caught with his pants down.
"This is our chart, and I understand that," he said, apologetically.
Northup said the notation was "an error on our part." But he could not refute the judge's contention that, based on the evidence, there are people in Arizona who have the same status as DACA-recipients, and, yet, are able to obtain a driver's license.
The attorney also denied there was "irreparable harm" caused by the inability to get a driver's license, even though it may force some people to drive when they shouldn't.
"Fear is not irreparable harm," he told the judge of the apprehension people may feel not having a driver's license.
On rebuttal, Tumlin pointed out courts have conceded that the ability to drive is linked to the ability to work, and thus, survive. And a driver's license or non-driving photo I.D. from the state practically was needed for everyday existence.
She noted the example of one DACA recipient who could not even return items to a store because the clerk demanded to see an Arizona I.D.
Campbell ended the hearing, taking the matter under advisement, and promising a ruling "in the next few weeks."
Outside the courthouse, the DREAMers held a spirited demonstration, greeting the attorneys with boisterous applause as they walked to a lectern for the post-court press conference.
Matuz stated that there were "approximately 16,000 DACA applications that have been received from the state of Arizona," but even when applicants are approved, and are given a Social Security Number and authorization to work, they are often "wrongly scrutinized" during the job interview process for lack of a state I.D.
"Governor Brewer wants the federal district court to dismiss the case," she said. "She wants to dismiss our dignity. She wants to dismiss our dreams."
Her fellow DREAMer Jesus Castro offered a note of defiance.
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"Today I'm standing up for my rights," he said. "I'm standing up as an Arizonan, and I can say legitimately that [Arizona] is my home state, and I'm not leaving here."
Brewer's executive order will have a price to pay for the Republican Party in this state. Castro and Matuz are future leaders of Arizona, and Brewer's action cannot help but poison them against the Arizona Republican Party, which has yet to get the message that the national GOP has gotten regarding immigration and the 12 million undocumented in this country.
That is, like Matuz and Castro, they are not leaving. And it's high time the bigots in the state GOP get over it.