Justice Dept. Opposes High Court Review of Arizona DACA Case

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Lawrence E. Dubé

The Trump administration urged the U.S. Supreme Court to not take up an Arizona appeal that challenges the Deferred Action for Childhood Arrivals program and questions its effect on state laws.

Solicitor General Noel J. Francisco filed an amicus brief in response to the high court’s call for the federal government’s views on the lawsuit that was filed by former Arizona Gov. Janice K. Brewer (R) and other officials.

The Justice Department filing argues the Arizona case wouldn’t add to the court’s understanding of DACA, and the state’s disagreement with a federal appeals court about DACA’s effect doesn’t merit the high court’s attention.

Fight Over DACA and State Law

Brewer signed an executive order in 2012 instructing state agencies to prevent DACA recipients from obtaining eligibility for certain state benefits, including the issuance of driver’s licenses.

The U.S. Court of Appeals for the Ninth Circuit ultimately held that Arizona’s policy was pre-empted by the exclusive authority of the federal government to classify noncitizens.

Arizona asked the Supreme Court to review the case. The court hasn’t acted on Arizona’s petition yet but asked for the solicitor general’s views.

The Justice Department brief said there are several reasons for the Supreme Court not to take up the Arizona case. Some of the issues raised by the state “have been overtaken by events,” the solicitor general argued. DACA rules in place when the state adopted its policy on driver’s licenses have been rescinded, the solicitor general said.

The DOJ also argued that Arizona’s challenge to the Ninth Circuit ruling doesn’t warrant review by the high court. The state’s objection to the Ninth Circuit ruling “is not with the rule that the court of appeals applied, but with the application to the facts of this case,” the Justice Department argued. The state failed to show that there is a split between any federal circuits on the issues it wants to raise in the Supreme Court. “This,” the brief said, “is especially so because Arizona apparently is the only State to have adopted such a regime, and therefore the question is not a matter of broad significance.”

The solicitor general urged the justices to deny review of the Arizona petition. However, the DOJ said that another case pending before the court, Department of Homeland Security v. Regents of the University of California, U.S., No. 17-1003, raises similar questions about the validity of DACA. If the high court grants review in Regents, the government said, the court could hold Brewer until it makes a decision in Regents and then “dispose of it as appropriate.”

Solicitor General Noel J. Francisco is counsel of record for the U.S.

The case is Brewer v. Ariz. Dream Act Coal., U.S., No. 16-1180, amicus brief 2/14/18.

Request Labor & Employment on Bloomberg Law