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


What Self-Help Guru Tony Robbins Was Trying to Say

Tony Robbins must have known immediately that he'd made a huge mistake in how he responded to a question about #MeToo. Last month, at one of Robbins's popular, sold-out seminars, audience member Nanine McCool told the self-help guru that she thought he misunderstood the #MeToo movement. You can see the entire ... Read More

The Dominant-Sport Theory of American Politics

I think it’s safe to assert that President Trump has an unfortunate tendency to do and say (and tweet) embarrassing things. When he does, we all join in the condemnation, and often it’s not so much for the substance as for the style. The president of the United States should be dignified, measured, slow to ... Read More
Film & TV

Little Pink House Speaks Truth to Power

Coming soon to a cinema near you—you can make this happen; read on—is a bite-your-nails true-story thriller featuring heroes, villains, and a history-making struggle over . . . the Constitution’s Takings Clause. Next February 24, Little Pink House will win the Oscar for Best Picture if Hollywood’s ... Read More