Attorneys for Gov. Jan Brewer told a federal judge Monday there is no legal basis to order the state to immediately provide driver's licenses to certain illegal immigrants immediately since they are not being harmed.
Douglas Northup, the lead counsel for the governor and the state Department of Transportation, said those who qualify for the Obama administration's "deferred action'' program want U.S. District Court Judge David Campbell to issue an injunction requiring the state to issue licenses, even before the case goes to trial. The governor directed ADOT last year not to give licenses to those granted the right to remain in this country and work here under the program.
Northup said the challengers' argument is based on their arguments that their inability to get a license hinders the ability to work and function as fully participating members of society.
But in legal pleadings Monday, Northup told Campbell there's a big flaw in that argument.
"Uniformly, the individual plaintiffs are getting to work, school, and going about their daily lives without driver's licenses and without serious impediment,'' he said, saying the state has already questioned the challengers in pre-trial depositions. Potentially more significant, Northup told the judge there is no reason to believe anything will change if he does not issue the injunction.
"They generally plan to continue doing exactly what they are doing now,'' Northup wrote. And he said without that irreparable harm the judge cannot summarily order the state to issue driver's licenses.
But the lawyers representing the five individuals challenging Brewer's directive said the program, known formally as Deferred Action Childhood Arrival, does authorize them and others similarly situated to be in the country. That, they argued, makes Brewer's action illegal and requires Campbell to overturn it.
In their own legal filings Monday, the challengers made some attacks of their own. They argued that Brewer has failed to show that the policy of denying driver's licenses to those in the program was based on any real or legitimate state interest.
"The record evidence confirms that defendants issued their policy based on the impermissible purpose of singling out a politically unpopular group for differential treatment,'' wrote Nicholas Espiritu for those challenging the governor.
A court hearing is slated for later this month for Campbell to decide whether he should immediately order the state to start issuing licenses to the potentially 80,000 Arizonans who are eligible for deferred action.
Central to the debate is a 1996 Arizona law which says that those seeking a state license must show their presence is "authorized under federal law.''
The program, unveiled last summer, says that the federal government will not try to deport those who arrived before age 18, are not yet 30 and meet certain other conditions. That status is good for two years, renewable infinitely.
It also provides work authorization cards to those who ultimately qualify.
Brewer contends that the deferred action program announced last year by the Obama administration does not authorize anyone to be in the United States but simply says they will not be deported, at least for the time being.
In Monday's argument, Northup goes farther.
Northup does not argue the administration's action is illegal, saying that Janet Napolitano, as Homeland Security secretary, has the authority to grant deferred action. But he said that does give the program the force of law.
"It serves only as a general guide and advises federal agents how to exercise their discretionary power to prosecute federal immigration law,'' Northup wrote. He said federal policy cannot invalidate state laws.
Northup also he pointed out that Homeland Security officials have repeatedly said that deferred action does not require states to provide driver's licenses but instead leaves that issue up to each state.
Espiritu, however, cited a fact sheet by U.S. Citizenship and Immigration Services which tells those who are applying that deferred action "does not confer a lawful immigration status'' that their "period of stay is authorized by the Department of Homeland Security.''
If nothing else, Espiritu said the state's action in refusing to provide driver's licenses amounts to Arizona creating its own state classification of immigrants.
"It is beyond dispute that the Constitution gives the federal government sold and exclusive power to regulate immigration,'' he wrote. "Arizona has ignored this limitation on state power and assumed for itself the power to decide for itself who is 'authorized' to be present in the United States and who is now.''