An appeals court judge warned that a victory for millions of immigrants brought to the U.S. illegally as children may unintentionally give President Donald Trump unprecedented authority to force unwilling states to comply with his immigration policies.
U.S. Circuit Judge Alex Kozinski on Thursday issued a sharply-worded rebuke to his colleagues in San Francisco who decided to let stand a ruling that Arizona was required under Barack Obama’s so-called Dreamer program to issue driver licenses to undocumented immigrants who came to the U.S. before they turned 16.
The decision was a “brazen re-negotiation of our federal bargain,” Kozinski said, because it gives the president’s orders, rather than laws created by Congress, the power to eclipse state laws.
“Executive power favors the party, or perhaps simply the person, who wields it,” said Kozinski, who was appointed to the bench in 1985 by Republican President Ronald Reagan.
“That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t,” the judge said. “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.”
The judge’s opinion comes days after Trump issued an executive order prohibiting entry to the U.S. of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order has sparked lawsuits across the country seeking to invalidate it, with individuals, organizations, politicians and some states calling it unconstitutional and un-American.
New York, Massachusetts and Virginia have joined lawsuits challenging Trump’s executive order on immigrants from the seven Middle Eastern countries, and San Francisco became the first U.S. city to sue Trump over another executive order threatening funding cuts to so-called sanctuary cities where local police stay out of enforcing federal immigration law.
Trump made opposing illegal immigration a cornerstone of his campaign and pledged to reverse Obama’s plan to shield more than 4 million undocumented immigrants from deportation and provide them with work permits that could lead to federal benefits like Medicaid and Social Security.
In the Dreamer lawsuit, the federal appeals court in San Francisco voted against having all of its judges reconsider an earlier ruling by a three-judge panel. That decision leaves in place the earlier ruling that Arizona’s policy blocking the immigrants from getting driver licenses was preempted by the “exclusive authority of the federal government to classify non-citizens.”
Joined by five other judge’s disagreeing with the court’s majority, Kozinski said the earlier decision had created a “puzzling new preemption theory” at odds with the U.S. Supreme Court. He said the ruling may stick the court with a precedent that could long outlive Obama’s Dreamer program.
The case is Arizona Dream Act Coalition v. Brewer, 15-15307, U.S. Court of Appeals for the Ninth Circuit (San Francisco).