Last Thursday, the State of Arizona filed a request with the Supreme Court to block a ruling by the Ninth Circuit striking down the state’s policy of denying driver’s licenses to DREAMERs. On Friday, Justice Anthony Kennedy, the Circuit Justice for the Ninth Circuit, called for a response to the application by Tuesday afternoon.
The State’s request reads in part:
This case presents fundamental issues of Constitutional law and state sovereignty, the significance of which cannot be downplayed in light of the Executive Branch’s continued expansion of deferred action and refusal to enforce federal immigration law. Specifically, it involves determining whether a federal agency’s informal policy memorandum to ignore federal law preempts a long standing state driver’s license law and assessing whether any state action can pass muster under the court of appeals’ exacting application of rational basis review, a form of review that typically involves great deference to the State.
This Court should stay the Ninth Circuit’s mandate for several important and urgent reasons. First, although the procedural posture of this case presents these issues in the context of a preliminary injunction, failing to intervene now will result in the status quo being changed in a way that is not easily remediable if ADOT ultimately prevails after a full trial of the merits. Despite the Ninth Circuit’s conclusion to the contrary, the district court properly concluded that Plaintiffs seek a mandatory injunction. Now, Arizona is not only being ordered to disregard long standing state law, it is being ordered to take action that is contrary to preserving the status quo. The Ninth Circuit is re-writing Arizona law in a preliminary ruling, not just stopping a law from taking effect.
Second, there is a reasonable probability that four members of this Court will grant ADOT’s petition for certiorari and there is a significant possibility of reversal because: (1) the Opinion’s preemption analysis will serve as precedent going forward to allow informal agency policy to preempt State action in contexts that have long been reserved to the States; and (2) the Opinion’s improper application of
rational basis review ensures that any State action will fail even under minimal scrutiny.
Justice Kennedy handles emergency legal matters from the geographic region of the Ninth Circuit for the Court.