Justices Could See Another State Showdown Over Immigration

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By Laura D. Francis

The U.S. Supreme Court may yet again be deciding a case involving immigration policy and driver’s licenses.

A group of 14 states, led by Texas, May 1 filed a brief in support of Arizona in a battle over former President Barack Obama’s deportation protection program for young, undocumented immigrants ( Brewer v. Ariz. Dream Act Coal. , U.S., No. 16-1180, amicus curiae brief filed 5/1/17 ).

Arizona was sued after refusing to provide driver’s licenses to immigrants protected by the deferred action for childhood arrivals program. The state so far has lost in the lower courts.

The case could be Texas’s second chance to argue against Obama’s use of executive authority in the area of immigration.

Texas brought a separate lawsuit challenging Obama’s expansion of DACA and his deferred action for parents of Americans and lawful permanent residents program, both of which came out in 2014. After the U.S. Court of Appeals for the Fifth Circuit found the programs unlawful, the case made its way to the Supreme Court in 2016.

Texas told the Supreme Court it would be harmed by having to provide driver’s licenses to program recipients. The justices tied 4-4 in the Texas case in June 2016.

No More Tie?

But if the justices take Arizona’s case this year, the presence of newly confirmed Justice Neil Gorsuch would severely lessen the chance for another tie vote.

Alabama, Arkansas, Georgia, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Tennessee and West Virginia, and Mississippi Gov. Phil Bryant (R) have joined Texas’s brief in the Arizona case.

Arizona sought Supreme Court review of the case in March, arguing that the U.S. Court of Appeals for the Ninth Circuit’s decision essentially upholding DACA conflicts with the Fifth Circuit’s decision in the Texas case. The Ninth Circuit ruled that Arizona had illegally created its own category of immigrants, which it can’t do because the federal government has sole authority in this area.

The appeals court in February denied Arizona’s request for the full court to hear the case. But Judge Alex Kozinski and five other judges, dissenting from that denial, warned that approval of this type of executive action could give President Donald Trump more authority than the other judges intended.

President Versus Congress

But the question is whether the federal government can override the states on immigration issues when it’s just a memorandum issued by the executive branch, rather than a law passed by Congress.

Arizona says it was following the immigrant classifications of the Immigration and Nationality Act when it set its driver’s license policy, and that the president didn’t have the authority to change them unilaterally.

“This lawsuit presents essentially the same issue and the same state interest” as the Texas case, Texas and the other 13 states said in their brief. “If the Executive can unilaterally make aliens lawfully present, and thus eligible for driver’s licenses, that ‘would have a major effect on the states,’” causing millions of dollars of losses, they said, quoting the Fifth Circuit decision.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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