Bench Memos

Dream or Nightmare?

Two years ago, then-DHS Secretary Janet Napolitano issued a three-page memorandum setting forth a policy of non-enforcement of federal immigration laws in favor of a class of illegal aliens meeting certain criteria. That policy has come to be known as “Deferred Action for Childhood Arrivals” (or DACA).

Last month, in Arizona Dream Act Coalition v. Brewer, a Ninth Circuit panel preliminarily enjoined the state of Arizona from implementing a policy that prevents DACA recipients from obtaining Arizona driver’s licenses. The opinion, authored by liberal diehard Harry Pregerson, holds, among other things, that the Arizona policy likely violates the Equal Protection Clause.

Pregerson’s reasoning strikes me as highly suspect. He maintains that there is no rational basis for Arizona to distinguish between illegal aliens subject to DACA non-enforcement (who are not eligible for driver’s licenses under Arizona’s policy) and illegal aliens who have applied for adjustment of status and cancellation of removal (who can receive driver’s licenses). Pregerson asserts that Arizona is “assum[ing] for itself the federal prerogative of classifying noncitizens.” But what Arizona is doing is building on existing federal classifications of employment-authorization recipients. (Pregerson also contends that Arizona’s policy is contrary to what Arizona law “expressly requires,” but he provides no reason why he shouldn’t defer to state officials’ understanding of state law.)  

On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” (Emphasis in original). But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.

Pregerson’s opinion, I’ll note, gets off to a telling start. His first sentence asserts that the “federal government has enacted a program” called DACA, phrasing that gives the false impression—later corrected, to be sure—that Congress enacted legislation that created a program.

President Carter appointed Pregerson to the Ninth Circuit in 1979, when Pregerson was 56. Now 90, he remains in active (rather than senior) status and continues to wreak havoc. Pregerson would be much more notorious for his judicial excesses had he not been overshadowed for the past 35 years by his even more outrageous colleague Stephen Reinhardt.

Most Popular

Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
Film & TV

Knives Out Takes On the Anti-Immigration Crowd

Since the beginning of the Obama era, the Left has broadcast two contradictory messages on the subjects of race and immigration. The first is that a so-called Coalition of the Ascendant will inevitably displace white Americans as the dominant force in the country’s politics and culture. The second is that ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
From left: Harvard University's Noah Feldman, Stanford University's Pamela Karlan, University of North Carolina's Michael Gerhardt, and George Washington University's Jonathan Turley testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019.

The Impeachment Eye Test

To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
Culture

The Absurd Crusade against the Salvation Army

We all know some individuals who are so obviously good and kind that we are certain if anyone were to dislike them, that's all we would need to know about the person. We would immediately assume he or she is a bad person. To hate the manifestly good is a sure sign of being bad. Such is the case regarding the ... Read More
White House

Nancy Pelosi’s Case

Further to the post below, a couple of thoughts on Nancy Pelosi’s statement yesterday. She said this near the beginning: During the constitutional convention, James Madison, the architect of the Constitution, warned that a president might betray his trust to foreign powers which might prove fatal to the ... Read More
White House

Nancy Pelosi’s Case

Further to the post below, a couple of thoughts on Nancy Pelosi’s statement yesterday. She said this near the beginning: During the constitutional convention, James Madison, the architect of the Constitution, warned that a president might betray his trust to foreign powers which might prove fatal to the ... Read More