(CN) – The Ninth Circuit refused to review a panel decision that Arizona cannot deny driver’s licenses to undocumented immigrants brought to the United States as children, prompting one of its own to call the ruling a "brazen renegotiation of our federal bargain."
This past April, the appeals court affirmed a permanent injunction against the state’s effort to deny driver’s licenses to "Dreamers" – young immigrants brought to the United States as minors who have been granted temporary relief from deportation under the Deferred Action for Childhood Arrivals, or DACA.
“Arizona has no cognizable interest in making the distinction it has for drivers’ licenses purposes,” Circuit Judge Harry Pregerson wrote for the three-judge panel. “The federal government, not the states, holds exclusive authority concerning direct matters of immigration law.”
The Ninth Circuit let the ruling stand Thursday, leading Circuit Judge Alex Kozinski to issue a stern rebuke in a dissent.
"There’s no doubt that Congress can preempt state law; its power to do so in the field of immigration is particularly broad," Kozinski wrote. "But Congress never approved the deferred-action program: The president adopted it on his own initiative after Congress repeatedly declined to pass the DREAM Act – legislation that would have authorized a similar program."
President Barack Obama created DACA in 2012 through an executive order, and shortly after then-Arizona Gov. Jan Brewer issued an order that the immigrants did not have "any lawful or authorized status" and should be denied driver's licenses.
Kozinski, who was joined in his dissent by five other judges, said his colleagues' ruling is based on a "puzzling new preemption theory."
"It’s a theory that puts us squarely at odds with the Fifth Circuit, which held recently that ‘the INA flatly does not permit the [executive] reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits,'" Kozinski wrote, referring to the Immigration and Nationality Act.
Linton Joaquin, general counsel for the National Immigration Law Center, said he thinks Kozinski is wrong here. The center argued on behalf of "Dreamers" before the Ninth Circuit.
"It was a correct decision," Joaquin told Courthouse News. "Since Arizona's driver's license is tied to federal law, the people affected by this decision have authorized presence under immigration law."
Kozinski warned that the court may eventually regret setting this precedent long after DACA has come and gone, and it is potentially faced with new litigation on another immigration order.
"The judiciary might find itself, after years of litigation over a president’s policy, faced with a change in administration and a case on the verge of mootness," Kozinski found. "And our precedent may long outlive the DACA program: We may soon find ourselves with new conflicts between the president and the states."
Cited in the dissent are two Los Angeles Times and New York Times articles about a campaign promise made by President Donald Trump to deport millions of undocumented immigrants from the U.S. While Trump has not announced plans to act on that promise, he has signed an executive order to build a wall along the U.S.-Mexico border.
"In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true," Kozinski wrote.
The Arizona Attorney General's Office did not respond to a request for comment.
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