Feathered Bastard

Jan Brewer's Bigoted Policy Denying Driver's Licenses to DREAMers in Federal Judge's Hands

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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.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons