The Volokh Conspiracy
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Thursday, a U.S. 9th Circuit of Appeals panel in Arizona Dream Act Coalition v. Brewer refused to reconsider its earlier decision striking down Arizona's refusal to issue driver's licenses to beneficiaries of President Barack Obama's Deferred Action for Childhood Arrivals program:
DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court's ruling that the federal government "has broad, undoubted power over the subject of immigration and the status of aliens" under the Constitution.
In response to the creation of the DACA program, [Arizona government officials] instituted a policy that rejected the Employment Authorization Documents … issued to DACA recipients under the DACA program as proof of authorized presence for the purpose of obtaining a driver's license. Plaintiffs seek permanently to enjoin Defendants from categorically denying drivers' licenses to DACA recipients….
We conclude that … Arizona's policy classifies noncitizens based on Arizona's independent definition of "authorized presence," classification authority denied the states under the Immigration and Nationality Act. We therefore affirm the district court's order granting summary judgment and entry of a permanent injunction, on the basis that Arizona's policy is preempted by the exclusive authority of the federal government to classify noncitizens.
Judge Alex Kozinski, joined by Judges Diarmuid Fionntain O'Scannlain, Jay Bybee, Maria Consuelo Callahan, Carlos T. Bea, and N.Randy Smith filed a dissent from denial of rehearing en banc; you can read all the opinions in full here, but here is an excerpt from the dissent, which strikes me as quite persuasive and very interesting:
At the crossroads between two presidents, we face a fundamental question of presidential power. President Obama created, by executive memorandum, a sweeping new immigration program that gives the benefit of "deferred action" to millions of illegal immigrants who came to the United States before the age of sixteen. Deferred action confers no formal immigration status; it is simply a commitment not to deport. Arizona, like many states, does not issue drivers' licenses to unauthorized aliens, and therefore refuses to issue drivers' licenses to the program's beneficiaries.
Does the Supremacy Clause nevertheless force Arizona to issue drivers' licenses to the recipients of President Obama's largesse? There's no doubt that Congress can preempt state law; its power to do so in the field of immigration is particularly broad. But Congress never approved the deferred-action program: Obama adopted it on his own initiative after Congress repeatedly declined to pass the DREAM Act—legislation that would have authorized a similar program….
The panel says repeatedly that Arizona has created "immigration classifications not found in federal law." But Arizona follows federal law to the letter—that is, all laws passed by Congress and signed by a President. Thus, when the panel uses the term "law," it means something quite different from what that term normally means: The panel in effect holds that the enforcement decisions of the President are federal law. Yet the lawfulness of President Obama's policies is an issue that the panel bends over backward not to reach. See panel opinion at 35-39.
I am at a loss to explain how this cake can be eaten and yet remain on the plate: Obama's immigration policies may or may not be "lawful" and may or may not be "law," but are nonetheless part of the body of "federal law" that imposes burdens and obligations on the sovereign states. While the panel suggests other reasons to doubt Arizona's response, the opinion's slippery preemption theory simply isn't one of them.
[Footnote moved: I have little to say about the panel's lengthy Equal Protection discussion…. [T]he panel is nonetheless clear that "we do not ultimately decide the Equal Protection issue." I note, however, that there are serious doubts about the coherence of the Supreme Court's Equal Protection jurisprudence as applied to aliens.] …
The panel … [holds] that Arizona's policy "strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch." One might think that the panel would present especially strong evidence of congressional delegation, such as an express statement to that effect. After all, it's rare enough to find that Congress has kept an entire field to itself, much less ceded one to the executive. And the bar that preemption must clear is both well-established and high: The historic police powers of states are not preempted "unless that was the clear and manifest purpose of Congress." [But t]he panel doesn't bother showing that Congress evinced a "clear and manifest purpose" before forcing the states to accept immigration classifications invented entirely by President Obama….
The primary [Supreme Court] case on which the panel relies, Plyler v. Doe, might contain some impressivesounding dicta—"The States enjoy no power with respect to the classification of aliens"—but the reasons to reject this dicta are more impressive still…. "Plyler is not a preemption case." Justice Brennan's 1982 majority opinion … never once mentions preemption. [Footnote: The case was also wrong ab initio and is due to be reconsidered.]
The panel's search for support in the Supreme Court's actual preemption jurisprudence is equally misguided. The panel quotes De Canas v. Bica for the proposition that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." But the panel overlooks the very next sentence of De Canas, which notes that "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted."
So what's "a regulation of immigration" that would be preempted? The De Canas opinion tells us a couple of sentences later: It's "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Denying a driver's license is not tantamount to denying admission to the country. Like the state law upheld in De Canas—which prevented California businesses from hiring illegal immigrants—Arizona's control over its drivers' licenses is well "within the mainstream of [the state's] police power." …
Instead, we're left with the enigmatic holding we started with: Arizona "impermissibly strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch." This conclusion finds no support in the actual text of the INA. It receives no help from the Court's preemption jurisprudence.
And it is a brazen renegotiation of our federal bargain. If states must accept the complete policy classifications of the INA and also every immigration decision made by a President, then we've just found ourselves in a world where the President really can preempt state laws with the stroke of a pen.
The Constitution gives us a balance where federal laws "shall be the supreme law of the land," but powers not delegated to the federal government "are reserved to the states." The political branches of the federal government must act together to overcome state laws.
Unison gives us clarity about what federal law consists of and when state law is subordinated. The vast power to set aside the laws of the sovereign states cannot be exercised by the President acting alone, with his power at its "lowest ebb." Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). [Footnote: We are not in the "zone of twilight," Youngstown, 343 U.S. at 637, where the distribution of presidential and congressional power is uncertain. Congress repeatedly declined to act—refusing time and time again to pass the DREAM Act—and President Obama was flying solo.]
Presidential power can turn on and off like a spigot; what our erstwhile President has done may be undone by our current President acting on his own…. And even if President Trump does not undo DACA, we will soon find ourselves facing new conflicts between the President and the states. See, e.g., California and Trump Are on a Collision Course Over Immigrants Here Illegally, L.A. Times, Nov. 11, 2016; Cities Vow to Fight Trump on Immigration, Even if They Lose Millions, N.Y. Times, Nov. 27, 2016.
These looming conflicts should serve as a stark reminder: Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don't. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. 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.
Judge Marsha S. Berzon, who joined the panel opinion, also wrote this opinion concurring in the denial of en banc; here is an excerpt:
I write first to emphasize that the "law" that has preemptive power over Arizona's policy is Congress' conferral of exclusive authority on the executive branch to defer removal of individuals who lack legal status and to authorize them to work while temporarily permitted to remain. Furthermore, I write to highlight that the preemption issues ultimately decided in this case can be viewed as embedded in the equal protection analysis, given the historical and conceptual overlap between equal protection and preemption concerns in cases involving state laws that affect immigrants. The serious equal protection concerns raised by Arizona's policy bolster our preemption holding, which was reached in a careful exercise of the principle of constitutional avoidance….
As the panel opinion makes clear, it is the authority specifically conferred on the Attorney General by the Immigration and Nationality Act and the associated regulations, that is the body of federal law that preempts Arizona's policy, not any particular exercise of executive authority. The INA, as implemented by authorized regulations, affirmatively permits the Attorney General to decide whether undocumented immigrants should be removed from the country and when, and also whether they should be authorized to stay and to work if they are not to be immediately removed….
Congress has expressly authorized the Attorney General, at his discretion, officially to defer removal of individuals who lack legal status, thereby temporarily authorizing their stay, and to authorize such individuals to work while temporarily permitted to remain…. The Attorney General granted the plaintiffs in this case deferred action and furnished them with federal employment authorization documents. Arizona's denial of drivers' licenses to DACA recipients rests on the premise that their presence is not "authorized under federal law," even though the federal government has decided otherwise, exercising the powers delegated to it by Congress. Arizona has, therefore, intruded into an area of decisionmaking entrusted to the federal government….
Critically, our preemption holding reflects a careful exercise of constitutional avoidance, based on the serious equal protection concerns raised by Arizona's policy. Although we rest our decision on preemption grounds, the preemption and equal protection concerns raised in this case are overlapping rather than distinct. And because that is so, I am convinced that although we wisely did not decide the equal protection issue, were it necessary to decide the question I would have held that there was an equal protection violation….
Preemption themes … surface in the equal protection analysis in the examination of legitimate state interests. A state interest is only legitimate for equal protection purposes when it lies within an area of concern within the state's authority. When the state law touches on immigration, the ambit of legitimate state concern is constrained by the federal government's preeminent power directly to regulate immigration—that is, to decide who will be admitted, who may remain, and who will be removed.
As stated in Plyler v. Doe, "[a]lthough it is a routine and normally legitimate part of the business of the Federal Government to classify on the basis of alien status and to take into account the character of the relationship between the alien and this country, only rarely are such matters relevant to legislation by a State." … For this reason, the Supreme Court has long recognized that federal power over immigration constrains a state's legitimate interests in classifying groups of immigrants differently from one another and then disadvantaging one of the groups so classified….
For these reasons, equal protection analysis with regard to state laws, like Arizona's, that disadvantage some aliens compared with others necessarily incorporates distribution-of-authority concerns that directly parallel those encountered in preemption analyses. It is in light of this overlap between preemption and equal protection analyses in the immigration context that the panel's equal protection analysis evaluated the proffered state interests said rationally to justify the denial of drivers' licenses to the plaintiffs. And it is in this light that we rejected any state justification for the classification in state law that suggested an intent to preclude or discourage the plaintiffs from remaining and working even though the federal government allowed them to do so. For the same reason, we rejected any justification that turned on immigration status distinctions with no connection to state-drivers'-license-related concerns (such as the distinction between aliens holding work authorization while in removal proceedings and DACA recipients holding work authorization but not in the process of being removed)…. Were it necessary to reach the question, I would have held Arizona's application of its drivers' license statute invalid as a denial of equal protection to DACA recipients, as compared to other undocumented individuals to whom Arizona does provide drivers' licenses.
The Dissent brushes past these equal protection concerns, regarding them as an "excursus" …. But the panel's methodology—a careful analysis of the strength of a constitutional challenge, before turning to an alternative that avoids definitely deciding that constitutional question—is one with a long pedigree, grounded in judicial restraint….
Again, I concur fully in the panel opinion. In addition, in my view, … the equal protection challenge is independently valid and, if we needed to reach it, would justify our conclusion that Arizona's denial of drivers' licenses to DACA recipients cannot stand.