The outcome of a lawsuit over whether certain illegal immigrants get state driver licenses is going to come down to a simple question: Are they authorized to be here.
A 1996 Arizona law says the Motor Vehicle Division can issue licenses and ID cards only to those who submit proof that their -- quote -- presence in the United States is authorized under federal law. Since that time, MVD has recognized documents issued by the federal government allowing people to work here legally. That even covers illegal immigrants who the government decides not to pursue for deportation for a variety of reasons, like being a victim of domestic violence. In June, President Obama announced a deferred action program for those brought here as children if they meet certain conditions. And those who qualify would get one of those work authorization cards. But two months later, Gov. Jan Brewer issued an order saying that work cards issued under THAT program will NOT be recognized.
Press aide Matthew Benson said his boss cannot undo the president's directive.
"He's well within his rights to have his federal agencies use prosecutorial discretion in deciding who to go after and who not," Benson said. "But the law is the law. He doesn't have the authority to grant people lawful status or citizenship out of thin air. And in the state of Arizona, the governor still has an obligation to uphold state law."
Benson said only Congress can approve the authorization to be in this country to meet the requirements of state law for licenses. Attorney Julie Chang Newell of the American Civil Liberties Union acknowledged nothing in the Obama administration policy requires states to provide driver licenses.
"But that doesn't mean that the state is allowed to make a decision for itself that people that the federal government has given permission to reside in this country are, in fact, unauthorized," Newell said.
The lawsuit filed Thursday by her organization and others asks a federal judge to declare that those in the program -- potentially 80,000 in Arizona -- are in fact authorized to be in the country and therefore entitled to a driver's license. That, however, is not a simple question. A spokesman for the Department of Homeland Security confirmed that the program, formally known as Deferred Action Childhood Arrival, does not actually AUTHORIZE anyone to be in this country. But in what may be a fine legal distinction, he said the federal government does not consider them to be here ILLEGALLY. Benson said that's why, if there is to be some formal recognition of who is authorized, it has to be done by Congress. In fact, he said what Sen. Jon Kyl proposed earlier this week is a version of what the president did through policy.
"But he's taking it through Congress and running it through the proper channels. And then it can be debated. And if it was approved and signed into law it would be in the law and there wouldn't be any uncertainty which is what we're facing at this time because of what the president chose to do and the route that he chose to take," Kyl said.
Newell, however, said there is no requirement for Congress to specifically approve the decision by the administration to defer any deportation efforts against this particular group of people who were brought here as children.
"Congress has granted to the executive branch discretionary power, prosecutorial discretion to the manner of the immigration, the enforcement of the immigration laws," Newell said. "The federal government has power to do this. And there is no difference between the deferred action that 'dreamers' are getting and that every other noncitizen who has been granted deferred action is getting."
It could take weeks, or longer, for the case to get to court.