Jan Brewer leads 'constitutional throwdown' against DREAM Act-lite

Jan Brewer, Arizona governor, is again taking on the White House, saying young illegal immigrants covered under a new Obama plan can't get state benefits. It could lead to legal wranglings.

Continuing a longstanding feud with the federal government, Arizona Gov. Jan Brewer on Wednesday ordered state agencies to withhold driver’s licenses and other state benefits from young illegal immigrants applying for the Obama administration’s new deportation deferrals. The decision marks a new chapter in the "constitutional throwdown" between the White House and states vowing to “get tough” on illegal immigration.

President Obama's Deferred Action for Childhood Arrivals (DACA) program, which took effect Wednesday, allows as many as 2 million illegal immigrants who were brought to the US as children and meet several other criteria to apply for a two-year deportation deferral. The directive also makes them eligible for work permits and college tuition help.

But Governor Brewer’s executive order – which could affect 80,000 people in Arizona – points to challenges ahead.

It amplifies lingering questions about the kind of protection illegal immigrants will get as they apply for the new benefit, and whether coming forward could backfire if Mr. Obama loses his reelection campaign in November. Moreover, it suggests that conservatives are intent on pushing back as hard as they can against a program Brewer has defined as an illegal backdoor “amnesty.”

Brewer’s revolt centers around her attempt to defy a basic federal law, the Real ID Act, in which Congress listed “deferred action” recipients as being eligible to receive driver’s licenses. Real ID was passed in 2005 to improve license security after 9/11, but 20 states, including Arizona, continue to fight the law, saying it doesn’t give enough leeway to states. Department of Homeland Security Secretary Janet Napolitano, who will ultimately oversee DACA, fought for the repeal of Real ID in 2009, saying it had proved unworkable and unpopular.

The order “is an act of defiance and a constitutional throwdown,” says Michael Olivas, an immigration-law expert at the University of Houston. “The fact is, there is no gray area as to deferred action. Once someone is given that, they have to be given a driver’s license.”

Brewer, who in January raised her finger to the president’s face during a tense encounter on an Arizona airport runway, disagrees.

Undocumented immigrants "are here illegally and unlawfully in the state of Arizona, and it's already been determined that you're not allowed to have a driver's license if you are here illegally," the governor said in a press conference. "The Obama amnesty plan doesn't make them legally here." 

Arizona, under Brewer, became a leading force in the anti-illegal immigration movement by passing Senate Bill 1070, which included tough measures designed to shrink the numbers of illegal immigrants. Several other states including Georgia and Alabama followed suit, sparking legal showdowns between the states and the US Department of Justice. This summer, the US Supreme Court struck down most of SB 1070, but retained one key provision: the ability of police officers to ask for identification from those they suspect are in the country illegally.

Brewer’s latest move could be part of an effort to build support in Congress and other states to challenge the constitutionality of DACA, which critics say goes beyond the White House's constitutional purview. Rep. Lamar Smith (R) of Texas, for example, has called DACA “a breach of faith with the American people and the rule of law.” 

Brewer's order “is a broader challenge to the federal government, because this [Obama] order, this policy, is clearly illegal,” says Mark Krikorian, director of the Center for Immigration Studies, which advocates stronger immigration laws and enforcement. “It’s trying to set up a confrontation that will focus not just on Governor Brewer’s order but on the illegality of the president’s policy."

"In a way, I think they’re kind of hoping that the Justice Department will sue them before the election,” he says. 

Some observers suggest that the Obama administration will move swiftly to block state efforts to withhold benefits from successful DACA applicants.

“I believe the Obama administration is going to come out and say we’re changing the notes and tones of our directive, and say these kids are here under the color of law and protected by US immigration laws and due process, and/or they have a specific nonvisa immigrant category that allows them to have a driver’s license,” Arizona immigration attorney Jose Penalosa told KSAZ-TV on Thursday.

The president has said the policy is legal because the mechanisms for it are already in place and require no new bureaucracy or funding to implement. Expenses will be refunded, he says, through a $465 application fee.