Originally Published: April 1, 2017 5:57 a.m.
PHOENIX — Attorney General Mark Brnovich is making a last-ditch effort to let Gov. Doug Ducey deny driver’s licenses to “dreamers.”
Legal briefs filed Wednesday ask the U.S. Supreme Court to overturn rulings by the 9th U.S. Circuit Court of Appeals, which has concluded that those in the Deferred Action for Childhood Arrivals program are in this country legally. More to the point, the judges said Arizona has no right to unilaterally decide the issue for itself.
That is precisely what Jan Brewer did in 2012 when she issued an executive order declaring that DACA, instituted by the Obama administration, did not entitle those accepted into the program the right to drive.
Brewer is gone.
But Ducey, her successor, has refused to rescind the executive order. And that has left Brnovich, as the state’s chief lawyer, to defend that.
Hanging in the balance is the question of whether the DACA program overrides the state’s right to decide who can drive.
The 2012 federal policy allows those who arrived in this country illegally as children to remain if they meet certain other qualifications. They also are entitled to employment authorization documents entitling them to work here legally.
At last count, there were more than 27,000 Arizonans in the program.
But just days before the Department of Homeland Security began taking applications, Brewer issued an executive order directing the Arizona Department of Transportation to not issue licenses to DACA recipients.
Brewer cited a 1996 state law that says licenses are available only to those whose presence in this country is “authorized by federal law.”
She argued that the federal agency really had no legal authority to permit DACA recipients to remain or work. And what that meant, Brewer said, is they were not “authorized” to be here.
That argument failed to convince federal appellate judges who said Arizona cannot decide for itself who is legally entitled to be in the country.
In Wednesday’s filings, Brnovich told the justices that neither Brewer in issuing the executive order nor Ducey in continuing to enforce it is doing anything wrong.
“The DACA memo itself stressed that it ‘confers no substantive right, immigration status or pathway to citizenship,’” Brnovich wrote. In fact, he said, the Office of Legal Counsel within the U.S. Department of Justice said in its own writings that DACA “does not establish any enforceable legal right to remain in the United States -- and it may be revoked by immigration authorities at their discretion.”
Brnovich also said that what Obama did is not part of any federal law or even the result of Congress directing a federal agency to adopt a rule.
“Rather, DACA purports to be mere prosecutorial discretion,” he said. “As such, it is not federal law.”
What that means, Brnovich said, is those who want driver’s licenses cannot rely on the employment authorization documents issued solely because of DACA to prove they are eligible to drive.