Arizona Dream Act Coalition, et al v. Janice Brewer, et al

Filing

Filed order and amended opinion (HARRY PREGERSON, MARSHA S. BERZON and MORGAN B. CHRISTEN) (Judge Kozinski, dissenting from the filing of the Order. Judge Berzon, concurring in the Amended Opinion.) 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.(SEE ATTACHED ORDER, DISSENT, AMENDED OPINION AND CONCURRENCE FOR FULL TEXT) [10300173]

FILED

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FEB 02 2017

Arizona Dream Act Coal. v. Brewer, No. 15-15307

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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

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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

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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

1

I have little to say about the panel’s lengthy Equal Protection discussion.
While this Equal Protection excursus eclipses the panel’s terse and enigmatic
discussion of preemption, the panel is nonetheless clear that “we do not ultimately
decide the Equal Protection issue.” Amended op. at 18. I note, however, that there
are serious doubts about the coherence of the Supreme Court’s Equal Protection
jurisprudence as applied to aliens. See, e.g., Korab v. Fink, 797 F.3d 572, 585 (9th
Cir. 2014) (Bybee, J., concurring) (describing this jurisprudence as “riddled with
exceptions and caveats that make consistent judicial review of alienage
classifications difficult,” and suggesting an approach based solely on preemption).

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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

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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

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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

2

The panel’s only other analysis of the INA, in its non-precedential Equal
Protection discussion, makes the rather unremarkable point that the executive
branch has responsibility for executing the INA. See amended op. at 13–16. This
does not in any way help establish whether Congress intended the INA to let the
executive branch preempt the states.
3

Compare Ariz. Dream Act Coal. v. Brewer, 818 F.3d 901, 916 (9th Cir.
2016) with amended op. at 33 (adding “at least for purposes of § 1182(a)(9)(B)”).
As the string of letters and numbers might suggest, § 1182(a)(9)(B) is not a large
portion of the INA. This subsection also offers no support for a second reason:
Even if it were true that an immigrant was “unlawfully present” if he stayed
beyond a period approved by the Attorney General, this doesn’t mean he would be
“lawfully present” if he didn’t stay beyond such a period. In formal logic, the
inverse of a conditional cannot be inferred from the conditional.

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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

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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

4

And even if it were undeniably the case that Congress delegated the power
of preemption to the President, I am skeptical that such a statute would be
constitutional. The nondelegation doctrine is still waiting in the wings. See
generally Whitman v. Am. Trucking Assocs., 531 U.S. 457 (2001).

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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

5

The case was also wrong ab initio and is due to be reconsidered. See, e.g.,
Eugene Volokh, Why Justices May Overrule ‘Plyler’ on Illegal Aliens, L.A. Daily
J., Nov. 28, 1994, at 6 (describing objections to Plyler and reasons why it may be
overruled).
6

The more recent cases cited by the panel—Lozano v. City of Hazleton,
724 F.3d 297 (3d Cir. 2013), Villas at Parkside Partners v. City of Farmers Branch,
726 F.3d 524 (5th Cir. 2013), and United States v. Alabama, 691 F.3d 1269 (11th
Cir. 2012)—are easily distinguishable for this reason. They involved what the
courts held to be an actual regulation of immigration—that is, “a determination of
(continued...)

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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

6

(...continued)
who should or should not be admitted into the country, and the conditions under
which a legal entrant may remain.” 424 U.S. at 355.

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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,

7

We are not in the “zone of twilight,” Youngstown, 343 U.S. at 637, where
the distribution of presidential and congressional power is uncertain. Congress has
repeatedly declined to act—refusing time and time again to pass the DREAM
Act—so the President is flying solo.

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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.

8

Mootness concerns aren’t theoretical. In Texas v. United States—the
direct challenge to the Obama Administration’s immigration policies over which
the Supreme Court split 4-4—the parties filed a joint motion to stay the merits
proceedings until one month after the presidential inauguration. See Joint Motion
to Stay, No. 1:14-cv-00254, Doc. 430 (Nov. 18, 2016).