U.S. District Judge David Campbell handed both sides a partial victory at the
first stage in a case challenging Arizona Governor Jan Brewer’s executive order
that her state will not issue driver’s licenses to illegal aliens allowed to
stay in this country temporarily under President Barack Obama’s amnesty program
of not pursuing deportation for many illegal aliens. But the judge also signaled
that Brewer was likely to lose this case in the end, and these illegal aliens
will end up with Arizona licenses.
In 2012 Obama issued an executive order creating his temporary amnesty program.
After Congress refused to pass Obama’s proposed DREAM Act on enact an
immigration bill granting amnesty to millions of foreigners who entered this
country illegally, the president violated his constitutional duty to take care
to faithfully execute the law by announcing that he would not deport large
groups of illegals that he thinks should receive amnesty. A federal judge is
Texas recently held the administration’s actions illegal, but that issue has not
yet been resolved on appeal.
In response to Obama’s executive order and Homeland Security Secretary Janet
Napolitano’s subsequent halting of deportations, Brewer issued an order to the
Arizona Department of Motor Vehicles ordering them to stop accepting federal
documents from those illegal aliens granted temporary amnesty for purposes of
issuing driver’s licenses. An advocacy group for illegal aliens filed a lawsuit
challenging Brewer’s actions in Arizona Dream Act Coalition v. Brewer.
Brewer filed a motion to dismiss the suit, and the plaintiffs filed a motion for
a preliminary injunction to block Brewer’s actions while the lawsuit proceeds.
On May 16, Judge Campbell denied both motions.
Campbell rejected the plaintiffs’ argument that Brewer’s order violates the
Supremacy Clause by conflicting with federal law. He correctly reasoned that
Obama’s order and Napolitano’s follow-up actions carry no force of law under the
Constitution, and therefore do not amount to a federal law that would trump
However, Campbell held it was very likely that the plaintiffs’ alternative
argument that Brewer’s order violates the Equal Protection Clause of the
Fourteenth Amendment will ultimately succeed. Although he correctly held that
the lowest form of judicial scrutiny—called rational-basis review—is the legal
standard for a case like this, he then reasoned that Brewer’s order was likely
to fail under even that deferential standard when he issues a final ruling on
the merits of this case.
“The Governor’s disagreement with the DACA [amnesty] program may be a rational political or policy view in a broad sense—reasonable people certainly can disagree on an issue as complex and difficult as immigration—but it provides no justification for saying that an Arizona’s driver’s license may be issued to one person who has been permitted to remain temporarily in the country on deferred action status—say for an individual humanitarian reason—while another person who has been permitted to remain temporarily in the country on deferred action status under the DACA program is denied a license.” The court noted that both groups of aliens have their deportation actions deferred through prosecutorial discretion, both have temporary status, both are federally eligible to work, and both have documents that have always been accepted by Arizona for driver’s licenses. Campbell noted that Arizona asserts four bases for why Brewer’s law is rational, but concluded that Brewer’s order blocking one group of illegal aliens from getting licenses, but not the other group, undermined the argument of why her order was reasonably related to advancing the public interests she asserted in court.
Campbell has the pedigree of a conservative judge. A Utah native, he clerked for
Justice William Rehnquist (before he became chief justice) on the Supreme Court.
The opinion is well-written and gives Brewer her due. It seems unlikely that he
will change his mind later in this case, or that the U.S. Court of Appeals for
the Ninth Circuit will reverse his decision.
And so the latest fight between Obama and Arizona over immigration continues.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil