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Arizona Dream Act Coalition v. Brewer

United States Court of Appeals, Ninth Circuit

February 2, 2017

JANICE K. BREWER, Governor of the State of Arizona, in her official capacity; JOHN S. HALIKOWSKI, Director of the Arizona Department of Transportation, in his official capacity; STACEY K. STANTON, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants-Appellants.

          Argued and Submitted July 16, 2015 Pasadena, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 2:12-cv-02546-DGC District of Arizona, Phoenix David G. Campbell, District Judge, Presiding


          Karen Tumlin (argued), Shiu-Ming Cheer, Nicholas Espiritu, Linton Joaquin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, CA; Tanya Broder, National Immigration Law Center, Oakland, CA; Jorge Martin Castillo and Victor Viramontes, Mexican American Legal Defense Educational Fund, Los Angeles, CA; Rodkangyil Danjuma, ACLU Foundation of Northern California, San Francisco, CA; Lee Gelernt and Michael K.T. Tan, American Civil Liberties Union, New York, NY; James Lyall and Daniel J. Pochoda, ACLU of Arizona, Phoenix, AZ; Jennifer C. Newell and Cecillia D. Wang, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA; Kelly Flood, ASU Alumni Law Group, Phoenix, AZ, for Plaintiffs-Appellees.

          Dominic Draye (argued) and John Robert Lopez, IV, Arizona Attorney General's Office, Phoenix, AZ; Timothy Berg, Sean Hood, and Douglas C. Northup, Fennemore Craig P.C., Phoenix, AZ, for Defendants-Appellants.

          Dale Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform Law Institute. Lindsey Powell, Washington D.C. for Amicus Curiae United States of America.


         The court's opinion filed on April 5, 2016, appearing at 818 F.3d 901 (9th Cir. 2016), is hereby amended. An amended opinion, including a concurrence by Judge Berzon, is filed herewith.

         Judges Berzon and Christen voted to deny the petition for rehearing en banc, and Judge Pregerson so recommended.

         The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

         The petition for rehearing en banc is DENIED, and no further petitions for rehearing will be accepted.

          Circuit Judge KOZINSKI, with whom Circuit Judges O'SCANNLAIN, BYBEE, CALLAHAN, BEA and N.R. SMITH join, dissenting from the denial of rehearing en banc:

         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 the President'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: The President adopted it on his own initiative after Congress repeatedly declined to pass the DREAM Act-legislation that would have authorized a similar program. Undeterred, the panel claims that the President acted pursuant to authority "delegated to the executive branch" through the Immigration and Naturalization Act (INA). Amended op. at 27. According to the panel, Congress gave the President the general authority to create a sprawling new program that preempts state law, even though Congress declined to create the same program.

         This puzzling new preemption theory is at odds with the Supreme Court's preemption jurisprudence; it is, instead, cobbled together out of 35-year-old Equal Protection dicta. It is a theory that was rejected with bemusement by the district court, see Ariz. Dream Act Coal. v. Brewer, 945 F.Supp.2d 1049, 1057 (D. Ariz. 2013), only to be resurrected by the panel at the eleventh hour and buried behind a 3, 000-word Equal Protection detour. It's a theory that puts us squarely at odds with the Fifth Circuit, which held recently that "the INA flatly does not permit the [executive] reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits." Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015), aff'd by an equally divided court, 136 S.Ct. 2271, 2272 (2016) (per curiam). And it's a theory that makes no mention of the foundational principle of preemption law: Historic state powers are not preempted "unless that was the clear and manifest purpose of Congress." Arizona v. United States, 132 S.Ct. 2492, 2501 (2012) (internal quotation omitted).

         The opinion also buckles under the weight of its own ambiguities. The panel says repeatedly that Arizona has created "immigration classifications not found in federal law." Amended op. at 30 n.8; see also id. at 35, 42. But Arizona follows federal law to the letter-that is, all laws passed by Congress and signed by the 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 the President's policies is an issue that the panel bends over backward not to reach. See id. at 35-39. I am at a loss to explain how this cake can be eaten and yet remain on the plate: The President's 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, [1] the opinion's slippery preemption theory simply isn't one of them. See, e.g., Noah Feldman, Obama's Wobbly Legal Victory on Immigration, Bloomberg (Apr. 6, 2016) (describing the panel's "precarious, " "tricky" and "funky" reasoning that is "vulnerable to reversal by the Supreme Court").

         * * *

         In the summer of 2012, the President directed his officers not to remove certain illegal immigrants who came to the United States before age sixteen. The program, Deferred Action for Childhood Arrivals (DACA), did not clear any of the normal administrative-law hurdles; the memorandum announcing the program states that it "confers no substantive right, immigration status or pathway to citizenship" because "[o]nly the Congress, acting through its legislative authority, can confer these rights." DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, June 15, 2012.

         Arizona responded with an executive order of its own, stating, in apparent agreement with the DACA memorandum, that the new federal program "does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants." Ariz. Exec. Order 2012-06. Because Arizona law requires that applicants for a driver's license submit proof that their presence is "authorized under federal law, " Ariz. Rev. Stat. § 28-3153(D)-and DACA "confers no substantive right [or] immigration status"-Arizona felt justified withholding licenses from illegal immigrants who happen to be DACA beneficiaries. Several DACA beneficiaries then sued Arizona, claiming, among other things, that the state's policy was preempted.

         The panel agrees, holding that Arizona's policy "strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch." Amended op. at 27 (emphasis added); see also id. at 17. 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 high: The historic police powers of states are not preempted "unless that was the clear and manifest purpose of Congress." E.g., Arizona, 132 S.Ct. at 2501; Wyeth v. Levine, 555 U.S. 555, 565 (2009); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

         The panel doesn't bother showing that Congress evinced a "clear and manifest purpose" before forcing the states to accept immigration classifications invented entirely by the President. Indeed, the panel's preemption analysis mentions only two small provisions of the INA, and this thin statutory evidence cannot possibly carry the heavy burden of field preemption.[2] The panel first notes that the INA refers to an alien's "period of stay authorized by the Attorney General, " beyond which the alien is "deemed to be unlawfully present in the United States." Amended op. at 33 (quoting 8 U.S.C. § 1182(a)(9)(B)(ii)). But the panel has now corrected its opinion to explain that this provision actually contemplates the executive's ability to "authorize" a period of stay only for a tiny subset of aliens-those "previously removed"-and not, as its original opinion suggested, every class of immigrant covered by the statute.[3]

         The panel's second claim is that the REAL ID Act identifies deferred-action immigrants "as being present in the United States during a 'period of authorized stay, ' for the purpose of issuing state identification cards." Amended op. at 34 (citation omitted). This narrow provision also can't be authority for the proposition that the INA "delegated to the executive branch" the wholesale authority to preempt state law by declaring immigrants legal when they are not. Nor does this narrow provision conflict with Arizona's policy: The provision actually says that a state "may only issue a temporary driver's license or temporary identification card" to deferred-action immigrants-a limit, not a requirement. REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2)(C)(i) (emphasis added).

         Nevertheless, the panel insists that this evidence "directly undermines" Arizona's response to DACA. Amended op. at 33. That the panel can trawl the great depths of the INA-one of our largest and most complex statutes-and return with this meager catch suggests exactly the opposite conclusion: The INA evinces a "clear and manifest" intention not to cede this field to the executive. This is precisely the conclusion that the Fifth Circuit reached in Texas v. United States. Our sister circuit held that even if the President's policies were of the type to which Chevron deference was owed-which the circuit assumed only for the sake of argument-such deference would be unavailable because "the INA expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present." See Texas, 809 F.3d at 179. In other words, the INA has spoken directly to the issue and "flatly does not permit" executive supplementation like the DACA program. Id. at 184. If what the panel relies on evinces a "clear and manifest purpose" to cede a field to the executive, it's hard to imagine what statute doesn't.[4]

         * * *

         Perhaps daunted by the lack of support in the statute it purports to interpret, the panel turns to Supreme Court precedent, but it doesn't fare much better here. The primary case on which the panel relies, Plyler v. Doe, might contain some impressive-sounding dicta-"The States enjoy no power with respect to the classification of aliens, " 457 U.S. 202, 225 (1982)-but the reasons to reject this dicta are more impressive still. As the district court put it when it rebuffed the Plyler theory of preemption: "Plyler is not a preemption case." 945 F.Supp.2d at 1057. Justice Brennan's 1982 majority opinion-a 5-4 opinion that garnered three individual concurrences and has been questioned continuously since publication-never once mentions preemption. See 457 U.S. at 205-30.[5]

         The panel's search for support in the Supreme Court's actual preemption jurisprudence is equally misguided. The panel quotes De Canas v. Bica for the proposition that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." Amended op. at 24 (quoting 424 U.S. 351, 354 (1976)). But the panel overlooks the very next sentence of De Canas, which notes that "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted." 424 U.S. at 355. So what's "a regulation of immigration" that would be preempted? The De Canas opinion tells us a couple of sentences later: It's "essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id. Denying a driver's license is not tantamount to denying admission to the country.[6] Like the state law upheld in De Canas-which prevented California businesses from hiring illegal immigrants-Arizona's control over its drivers' licenses is well "within the mainstream of [the state's] police power." Id. at 356.

         Indeed, it's difficult to imagine a preemption case less helpful to the panel than De Canas. The De Canas majority states explicitly that it will "not presume that Congress, in enacting the INA, intended to oust state authority to regulate . . . in a manner consistent with pertinent federal laws." Id. at 357. That uncontroversial proposition simply raises once more the question the panel works hard to avoid: If Arizona relies on the categories drawn by the INA, but not those of the executive branch, why isn't it operating consistently with "pertinent federal laws"? The panel never says.

         * * *

         Instead, we're left with the enigmatic holding we started with: Arizona "impermissibly strayed into an exclusive domain that Congress, through the INA, delegated to the executive branch." Amended op. at 27. This conclusion finds no support in the actual text of the INA. It receives no help from the Court's preemption jurisprudence. And it is a brazen renegotiation of our federal bargain. If states must accept the complete policy classifications of the INA and also every immigration decision made by the President, then we've just found ourselves in a world where the President really can preempt state laws with the stroke of a pen.

         The Constitution gives us a balance where federal laws "shall be the supreme law of the land, " but powers not delegated to the federal government "are reserved to the states." U.S. Const., art. VI cl. 2; id. amend. X. The political branches of the federal government must act together to overcome state laws. Unison gives us clarity about what federal law consists of and when state law is subordinated. The vast power to set aside the laws of the sovereign states cannot be exercised by the President acting alone, with his power at its "lowest ebb." Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).[7]

         Presidential power can turn on and off like a spigot; what our outgoing President has done may be undone by our incoming President acting on his own. The judiciary might find itself, after years of litigation over a President's policy, faced with a change in administration and a case on the verge of mootness.[8] And our precedent may long outlive the DACA program: We may soon find ourselves with new conflicts between the President and the states. See, e.g., California and Trump Are on a Collision Course Over Immigrants Here Illegally, L.A. Times, Nov. 11, 2016; Cities Vow to Fight Trump on Immigration, Even if They Lose Millions, N.Y. Times, Nov. 27, 2016.

         These looming conflicts should serve as a stark reminder: Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don't. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember the old warning: May all your dreams come true.

          Before: Harry Pregerson, Marsha S. Berzon, and Morgan B. Christen, Circuit Judges.


          Harry Pregerson, Senior Circuit Judge:

         Plaintiffs are five individual recipients of deferred action under the Deferred Action for Childhood Arrivals ("DACA") program, and the Arizona DREAM Act Coalition ("ADAC"), an organization that advances the interests of young immigrants. 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. Arizona v. United States, 132 S.Ct. 2492, 2498 (2012).

         In response to the creation of the DACA program, Defendants-the Governor of the State of Arizona; the Arizona Department of Transportation ("ADOT") Director; and the Assistant Director of the Motor Vehicle Division-instituted a policy that rejected the Employment Authorization Documents ("EADs") 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. The district court ruled that Arizona's policy was not rationally related to a legitimate government purpose and thus violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted Plaintiffs' motion for summary judgment and entered a permanent injunction. Defendants appealed.

         We agree with the district court that DACA recipients are similarly situated to other groups of noncitizens Arizona deems eligible for drivers' licenses. As a result, Arizona's disparate treatment of DACA recipients may well violate the Equal Protection Clause, as our previous opinion indicated is likely the case. Arizona Dream Act Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014). The district court relied on this ground when it issued the permanent injunction. Applying the principle of constitutional avoidance, however, we need not and should not come to rest on the Equal Protection issue, even if it "is a plausible, and quite possibly meritorious" claim for Plaintiffs, so long as there is a viable alternate, nonconstitutional ground to reach the same result. Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 576-78 (1988)).

         We conclude that there is. 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 ("INA"), 8 U.S.C. § 1101, et seq. 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. See Weiser v. United States, 959 F.2d 146, 147 (9th Cir. 1992) ("[This court] can affirm the district court on any grounds supported by the record.").


         I. The DACA Program

         On June 15, 2012, the Department of Homeland Security announced the DACA program pursuant to the DACA Memorandum. Under the DACA program, the Department of Homeland Security exercises its prosecutorial discretion not to seek removal of certain young immigrants. The DACA program allows these young immigrants, including members of ADAC, to remain in the United States for some period of time as long as they meet specified conditions.

         To qualify for the DACA program, immigrants must have come to the United States before the age of sixteen and must have been under the age of thirty-one by June 15, 2012. See Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012). They must have been living in the United States at the time the DACA program was announced and must have continuously resided here for at least the previous five years. Id. Additionally, DACA-eligible immigrants must be enrolled in school, have graduated from high school, have obtained a General Educational Development certification, or have been honorably discharged from the U.S. Armed Forces or Coast Guard. Id. They must not pose a threat to public safety and must undergo extensive criminal background checks. Id.

         If granted deferred action under DACA, immigrants may remain in the United States for renewable two-year periods. DACA recipients enjoy no formal immigration status, but the Department of Homeland Security does not consider them to be unlawfully present in the United States and allows them to receive federal EADs.

         II. Arizona's Executive Order

         On August 15, 2012, the Governor of Arizona issued Arizona Executive Order 2012-06 ("Arizona Executive Order"). Executive Order 2012-06, "ReAffirming Intent of Arizona Law In Response to the Federal Government's Deferred Action Program" (Aug. 15, 2012). A clear response to DACA, the Arizona Executive Order states that "the Deferred Action program does not and cannot confer lawful or authorized status or presence upon the unlawful alien applicants." Id. at 1. The Arizona Executive Order announced that "[t]he issuance of Deferred Action or Deferred Action USCIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit." Id. The Order directed Arizona state agencies, including ADOT, to "initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver's license." Id.

         III. Arizona's Driver's License Policy

         To implement the Arizona Executive Order, officials at ADOT and its Motor Vehicle Division initiated changes to Arizona's policy for issuing drivers' licenses. Under Arizona state law, applicants can receive a driver's license only if they can "submit proof satisfactory to the department that the applicant's presence in the United States is authorized under federal law." Ariz. Rev. Stat. Ann. § 28-3153(D). Prior to the Arizona Executive Order, ADOT Policy 16.1.2 included all federally issued EADs as "proof satisfactory" that an applicant's presence was "authorized under federal law." The Motor Vehicle Division therefore issued drivers' licenses to all individuals with such documentation.

         After the Arizona Executive Order, the Motor Vehicle Division announced that it would not accept EADs issued to DACA recipients-coded by the Department of Homeland Security as (c)(33)-as proof that their presence in the United States is "authorized under federal law." The Motor Vehicle Division continued to accept federally issued EADs from all other noncitizens as proof of their lawful presence, including individuals who received deferred action outside of the DACA program and applicants coded (c)(9) (individuals who have applied for adjustment of status), and (c)(10) (individuals who have applied for cancellation of removal).

         In 2013, ADOT revised its policy again. Explaining this change, ADOT Director John S. Halikowski testified that Arizona views an EAD as proof of presence authorized under federal law only if the EAD demonstrates: (1) the applicant has formal immigration status; (2) the applicant is on a path to obtaining formal immigration status; or (3) the relief sought or obtained is expressly provided pursuant to the INA. Using these criteria, ADOT began to refuse driver's license applications that relied on EADs, not only from DACA recipients, but also from beneficiaries of general deferred action and deferred enforced departure. It continued to accept as proof of authorized presence for purposes of obtaining drivers' licenses EADs from applicants with (c)(9) and (c)(10) status. We refer to the policy that refuses EADs from DACA recipients as "Arizona's policy."

         IV. Preliminary Injunction

         On November 29, 2012, Plaintiffs sued Defendants in federal district court, alleging that Arizona's policy of denying drivers' licenses to DACA recipients violates the Equal Protection Clause and the Supremacy Clause of the U.S. Constitution. Plaintiffs sought declaratory relief and a preliminary injunction prohibiting Defendants from enforcing their policy against DACA recipients. On May 16, 2013, the district court ruled that Arizona's policy likely violated the Equal Protection Clause but it declined to grant the preliminary injunction because Plaintiffs had not shown irreparable harm. ADAC v. Brewer, 945 F.Supp.2d 1049 (D. Ariz. 2013) ("ADAC I"), reversed by ADAC v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ("ADAC II"). It also granted Defendants' motion to dismiss the Supremacy Clause claim. Id. at 1077-78. Plaintiffs appealed the district court's denial of a preliminary injunction.

         V. ...

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