“What is the problem?” Judge Harry Pregerson demanded during a tense hearing at the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California, which was broadcast live online. “Does it come down to racism? Does it come down to discrimination against these people? What else does it come down to?”
Assistant Deputy Solicitor General Dominic Draye, who argued in favor of reinstating a ban on driver’s licenses for DACA recipients, was visibly taken aback by the verbal assault.
“Judge, I wish you wouldn’t say things like that,” Draye said.
“I’m saying it because it’s the truth,” Pregerson said.
The Arizona Department of Transportation historically has granted licenses to anyone with a federal Employment Authorization Document. But when the Department of Homeland Security announced plans to give the work permits to DACA recipients in 2012, former Arizona Governor Jan Brewer issued an executive order banning them from obtaining driver’s licenses and other public benefits.
The ACLU sued the state on behalf of a group of young immigrants, and a lower court issued a permanent injunction against the policy earlier this year.
Draye argued that recipients of DACA are not eligible to receive driver’s licenses because of a 1996 state law that reserves that right for those whose presence in the country is “authorized by federal law.”
DACA was instituted by executive order in 2012 — not by Congress — so is not, by definition, a law.
“It is an expression of current federal policy,” he said. “But it lacks the force of law because it’s neither a statute nor a formal rule-making nor a regulation.”
Draye also contended that it was Arizona Department of Transportation Director John Halikowski, rather than Brewer, who made the decision not to issue driver’s licenses to DACA recipients. It is a critical distinction, he said, because federal courts are required to defer to state officials when it comes to interpreting state statutes.
Unimpressed, Judge Marsha Berzon read out loud the executive order Brewer issued on the topic: “I do hereby order and direct …”
She paused and looked up over the rim of her glasses.
“She ordered them to do this,” Berzon said.
Pregerson largely brushed aside Draye’s technical points, repeatedly interrupting to ask about the “real life” impacts of giving DACA recipients driver’s licenses.
More than 10,000 DACA recipients have been issued driver’s licenses since December, when U.S. District Court Judge David Campbell first ordered the state to reverse its ban, according to ADOT’s most recent figures.“The fact that Arizona disagrees with the federal government’s policy choices doesn’t give them license to discriminate." — Karen Tumlin, attorney
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“What negative repercussions has Arizona suffered because of the issuance of those licenses?” he asked.
Draye did not have the information. So Pregerson, who apparently had asked his aides to sift through news reports ahead of the hearing, answered his own question.
“There have been none,” he said.
The third judge, Morgan Christen, largely kept her opinions to herself, only interjecting to ask clarifying questions about case law references.
The judges were much easier on Attorney Karen Tumlin, who represented the immigrants at the hearing.
Tumlin argued that the state’s policy made it difficult for immigrants to pursue higher education and obtain better work opportunities.
“The inescapable conclusion is that this is discrimination,” she said. “The fact that Arizona disagrees with the federal government’s policy choices doesn’t give them license to discriminate.”
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