Yesterday, the Ninth Circuit held oral arguments in Arizona Dream Act Coalition v. Brewer. This case involves Arizona’s denial of driver’s license to DACA beneficiaries. During arguments, Judge Harry Pregerson implied that opposition to DACA “comes down to racism.”
Arizona has incurred no ill effects because of the new, legal Dreamer drivers, said Judge Harry Pregerson.
“Nothing horrible has happened on the highways of Arizona,” said Pregerson, who was appointed to the 9th Circuit in 1979 by President Carter.
Pregerson asked why Arizona continued to try to deny benefits to Dreamers. “Does it come down to racism? Does it come down to discrimination against these people? What else does it come down to?” he asked.
“Judge, I wish you wouldn’t say things like that,” Arizona Assistant Atty. Gen. Dominic Draye replied.
“I’m saying it because it’s the truth.”
Near the end of the hearing, Pregerson continued to push the attorneys toward discussing what Arizona’s decision would mean to thousands of people.
“They’re part of our culture, they’ve gone to our schools, they’ve made contributions,” Pregerson said. “The bottom line is, if there’s individual [scrutiny] of each eligible person who seeks the benefits of DACA, I guess that’s a terrible thing.”
You can watch the clip here, starting at around 2:23:38.
During oral arguments in Texas v. United states last week, fellow Carter-appointee Judge Carolyn King made a similar comment that Texas just doesn’t want DAPA beneficiaries to work:
U.S. Circuit Judge Carolyn King, the lone Democratic appointee to the panel, was skeptical. The states aren’t “contesting their ability to stay here. They can stay,” King said. “What you don’t want them to do is able to work.” “That’s the key,” she added.
An equally-stunned Texas SG Scott Keller calmly replied that this wasn’t the case at all.
These questions reflect an increasingly common theme in high-stakes separations of powers litigation. In King v. Burwell, one of the most important, if not the leading argument, was that the invalidation of the IRS rule would take away the healthcare of eight million people. The Solicitor General made this point in his brief, and an amicus brief was filed explaining how many people would die if the Court reversed the Fourth Circuit.
Likewise, the valence surrounding the challenge to DAPA has been that aliens would be unable to work, and could not come out of the shadows.Outside the Fifth Circuit last week, there were hundreds of demonstrators, and a marching band that you could hear on the audio. I appeared on Al Jazeera America after Judge Hanen’s ruling, and was asked over and over again why poor, innocent immigrants should be denied this status.
The two comments from Judges Pregerson and King, however, take this popular perception to the next level. Rather than simply acknowledging the consequences of the cases if the states prevail, the Judges charge the states with the bare animus to harm people based on their race and alienage status. This is common fare for MSNBC and Salon, but is beyond the pale for judges.
It’s unavoidable that separation-of-powers challenges are always clouded by the consequences of the decision–if the Court invalidates or upholds X, then people will be harmed. That’s fine, and courts often do consider that in their judgment. But it is wildly inappropriate for Judges without any evidence to baldly state that the states did X for the sole purpose of harming people.