The Question of Immigration

By Tanner Bowen

Tanner Bowen is a rising freshman at University of Pennsylvania.

“I will not stand idly by while our citizens are under assault and little children from Central America are detained in squalor.  We are too good of a country,” said Texas Governor Rick Perry. Governor Perry's comments reflect just one of the recent actions taken by leaders of border states to combat the immigration problems that have divided the United States for the last few centuries. [1]  

This desire to deport illegal immigrants in the U.S. is not unprecedented.  After former Secretary of Homeland Security Janet Napolitano enacted the Deferred Action for Childhood Arrivals (DACA) initiative on August 15, 2012, Arizona Governor Jan Brewer signed an executive order on the same day that prevented these DACA recipients from becoming eligible for state identification. This case applied particularly to the issuance of drivers licenses.  

Following the executive order, five named plaintiffs, with the support of the Arizona Dream Act Coalition, sued the Arizona Government in the case Arizona Dream Act Coalition v. Brewer.  The US Court of Appeals for the Ninth Circuit recently ruled on this case that the plaintiffs were entitled to preliminary injunctive relief for the Arizona executive order.  In order for the Ninth Circuit to decide on preliminary injunctive relief, they employ the Winter test, which sets out:

“A plaintiff seeking a preliminary injunctive relief must establish that he [or she] is likely to succeed on the merits, that he [or she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his [or her] favor, and that an injunction is in the public interest”. [2]

The Ninth Circuit ruled that the Arizona Dream Act Coalition had met all four requirements..

The court first discussed the type of injunction at hand; Circuit Judge Pregerson overturned the District Court’s ruling that the type of injunction was mandatory.  In the case at bar, the type of injunction is prohibitory and does not stand up to the more rigorous standards of mandatory injunction.

But, beyond this, the constitutional issues at stake are rather monumental.  We have issues pertaining not only to the Supremacy Clause, but also for the Equal Protection Clause.  For the preemption claim of the case, the Ninth Circuit ruled that Governor Brewer’s executive order violates the Supremacy Clause “because it interferes with Congress’s intent that the Executive Branch possess discretion to determine when noncitizens may work in the United States”.  In fact, when signing the executive order, Jan Brewer stated that DACA recipients “are here illegally and unlawfully in the state of Arizona...The Obama amnesty plan doesn't make them legally here”.  

The purpose of DACA is to allow for prosecutorial discretion for minor cases in which individuals who arrived in the United States as children and have called the US “home” can obtain Employment Authorization Documents for a period of two years at a time and who are not considered a threat to national security. [3] The Ninth Circuit contends  the simple fact that Arizona’s policy prevents these DACA recipients from working since they cannot drive; thus, they frustrated the policies of the federal government through this noncompliance.  

In addition to this claim, the Ninth Circuit took a strong stance on the violation of the Plaintiff’s Equal Protection Clause.  In order for an Equal Protection claim to advance, the court must find that the class in question is similarly situated.  In the Ninth Circuit’s opinion, they ruled that DACA recipients are similarly situated in the respect of non-citizens who may use their Employment Authorization Documents in order to apply for drivers licenses.  

But, the state of Arizona does not advance on this claim because they ironically already allow non-citizens with (c)(9) and (c)(10) versions of Employment Authorization Documents to apply for a drivers license.  Although it was argued that these non-citizens with (c)(9) and (c)(10) documents were on their “way toward citizenship,” the Department of Homeland Security and the Attorney General’s office denote that individuals with these EADs are given to those non-citizens who have applied for an adjustment of status and a cancellation of removal.  In this respect, (c)(9) and (c)(10) immigrants are in the exact same situation as DACA recipients.  

That is why the State of Arizona’s claim even fails the rational basis review-the lowest level of scrutiny.  There is no legitimate state interest in this claim that would rationally warrant a prudent individual in the belief that treating these DACA recipients differently would be constitutionally cognizable--not even the four claims set out by Arizona, which include potential liability toward the Arizona Department of Transportation from issuing these drivers licenses to DACA recipients or the potential cancellation of the DACA program warrant a constitutional violation.

The other factors of the Winter test also tip in favor of the Plaintiffs.  These DACA recipients will inevitably suffer irreparable harm from Arizona’s drivers license ban by limiting the ability for these non-citizens to work as well as future professions.  But even more so, the Ninth Circuit ruled that it would not be equitable or in the public’s interest to pursue a policy of discrimination; thus, satisfying the remaining factors of the injunction analysis.  

This circumstance is a prime example of the taxing and sometimes hostile relationship that many illegal immigrants face in today’s society.  There is obvious tension between the policies of the federal government and those opinions of individual state heads.  Although immigration reform is something that both political ideologies welcome, the methodologies and potential outcomes are both something that need to be highly considered beforehand. In a highly polarized political atmosphere--such as that of the  United States - each person needs to examine the broader picture of a complex relationship between human rights and structured policy in order to reach a compromise.  


[1] Kaplan, Rebecca. “Gov. Rick Perry deploying up to 1,000 National Guard troops to border”. CBSNews. http://www.cbsnews.com/news/gov-rick-perry-deploying-up-to-1000-national-guard-troops-to-border/ (accessed July 24, 2014).
[2] Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
[3] US Department of Homeland Security. “Deferred Action for Childhood Arrivals.” Deferred Action for Childhood Arrivals. http://www.dhs.gov/deferred-action-for-childhood-arrivals (accessed July 24, 2014).


Photo Credit: Flickr user Jonathan McIntosh