ARIZONA DREAM ACT COALITION; CHRISTIAN JACOBO; ALEJANDRA LOPEZ; ARIEL MARTINEZ; NATALIA PEREZ-GALLEGOS; CARLA CHAVARRIA; JOSE RICARDO HINOJOS, Plaintiffs-Appellees,
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.
and Submitted July 16, 2015 Pasadena, California
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
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.
Wilcox, Washington, D.C. for Amicus Curiae Immigration Reform
Law Institute. Lindsey Powell, Washington D.C. for Amicus
Curiae United States of America.
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
Berzon and Christen voted to deny the petition for rehearing
en banc, and Judge Pregerson so recommended.
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.
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:
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
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.
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
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,  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").
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
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.
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).
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. 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.
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)
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
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.
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. 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.
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
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.
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.,
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. 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.
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.
Pregerson, Senior Circuit Judge:
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
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.
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,
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.").
The DACA Program
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
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.
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.
Arizona's Executive Order
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.
Arizona's Driver's License Policy
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.
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).
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
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.