If you think Governor Doug Ducey and Arizona Attorney General Mark Brnovich are an improvement over Jan Brewer and Tom Horne – the past politicians who held their posts – think again.
Both took Arizona through a years-long, losing litigation they inherited from the previous administration. They repeatedly beat a dead horse, wasting hundreds of thousands of taxpayers’ dollars in the case The Arizona DREAM Act Coalition, et al v. Jan Brewer, in which DACA-DREAMers fought for their right to obtain driver’s licenses.
But Ducey and Brnovich added a twist: When it was obvious the courts were not favorable to the arguments for the driver’s license ban, they sought to challenge the constitutionality of the DACA program and to unravel DACA across the country.
“Our case was more than just driver’s licenses,” said Brnovich, a child of immigrants. “It was about the separation of powers, the rule of law and even more importantly, about the fundamental question of whether the president can unilaterally change a federal statute… which President Obama did dealing with DAPA and DACA.”
FYI, President Obama never changed any federal statute. He asserted his executive powers (reluctantly, I may add) after almost 100 legal experts wrote a letter telling him he had authority to enact an executive order to grant administrative relief to DREAMers when the Republican-led Congress was unwilling to take up the issue of immigration reform.
Here is Mark Brnovich telling Lou Dobbs of Fox News that the lawsuit was about more than driver’s licenses. (Lou Dobbs is a propaganda show that does a great disservice to audiences, mischaracterizing complex legal problems and lying about facts.)
A handful of plaintiffs participating the inner-workings of the litigation understood the danger of pivoting from one legal argument to another more encompassing argument. However, the legal system was on our side.
Each term, approximately 7,000-8,000 new cases are filed in the Supreme Court of the United States (SCOTUS). The Court grants review with oral arguments by attorneys for only about 80 of those cases each term and disposes of about 100 cases without plenary reviews.
Last Monday, March 19, 2018, SCOTUS denied Arizona a hearing in the driver’s license case without comments, which automatically leaves in place the Ninth Circuit decision in favor of DACA-DREAMers.
For Ducey and Brnovich, it was a losing proposition.
The fight lasted six years, with five years of active litigation, led by a handful of courageous individual plaintiffs and a stellar group of attorneys from National Immigration Law Center (NILC), American Civil Liberties Union (ACLU), American Civil Liberties Union of Arizona (ACLU of AZ) and the Mexican-American Legal and Educational Fund (MALDEF).
The litigation started the day the process to apply for DACA was announced by the Obama administration, August 15, 2012. Then-governor Jan Brewer, in one of the cruelest acts in Arizona politics ever, announced an executive order directing the Motor Vehicle Division (MVD) not to allow Deferred Action for Childhood Arrivals recipients to apply for a driver’s licenses.
The legal team presented a lawsuit against Brewer’s actions, the courts siding multiple times with the DACA-DREAMers and blocking Brewer’s executive order.
Despite those favorable court decisions, Ducey and Brnovich’s decision to attack the DACA program across the U.S. made us feel queasy and concerned in the last months of the litigation.
Advocates were asked to urge Ducey to end the driver’s license litigation, but both the governor and the attorney general placed the responsibility for the litigation on each other. Ducey said it was Brnovich who didn’t want to quit; Brnovich said it was the governor.
In the end, the DREAMers and the plaintiffs refused a bad settlement deal that did not have any benefits for them, rolled the dice, and let the case go to the higher court.
The result was victory.
There are more battles ahead, but we are confident DACA-DREAMers will be successful. It is just a matter of time.