[Eugene Volokh] Ninth Circuit battle: May Arizona deny driver’s licenses to beneficiaries of Obama’s Deferred Action for Childhood Arrivals program?

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