Arizona and U.S. solicitors general engaged in spat before SCOTUS

California's imbroglio over DACA has left the doors of the U.S. Supreme Court for now, but developments this week in an Arizona case addressing the Obama-era immigration program, also pending before the high court, will give the justices one more opportunity to hear arguments about the program's reach, if they so choose.

The case, which pits people protected from deportation by the Deferred Action for Childhood Arrivals program against the state of Arizona, has been pending before the high court for nearly a year. Arizona asked for review when the 9th U.S. Circuit Court of Appeals held that an Arizona law requiring people to prove whether they were in the country legally in order to receive a driver's license was preempted by DACA, a federal mandate.

Last Wednesday, the case was finally distributed for conference, and the justices will consider whether to hear it on March 16. Brewer v. Arizona Dream Act Coalition, 16-1180.

But in recent months, Brewer became entangled in the federal government's exceptional request for immediate Supreme Court review of U.S. District Judge William Alsup's injunction blocking the administration from dismantling the program. Department of Homeland Security v. Regents of the University of California, 17-1003.

When the government sought certiorari before judgment in Regents, Arizona thought it had an ally. The state's solicitor general, Dominic E. Draye, wrote to the court, urging it to take both cases.

But two days before the justices gathered to consider whether to grant such review, the federal government gave its opinion of Brewer.

"Arizona's opposition to DACA has largely been vindicated, and its concerns about the policy and its effects have been addressed," U.S. Solicitor General Noel Francisco wrote, after noting that Attorney General Jeff Sessions and federal agencies had deemed the DACA program to be in violation of law and ended it.

Regents, which addressed the first federal injunction prohibiting the dismantling of DACA, was the key to ending the legal quagmire, Francisco said.

Last Monday, Arizona responded to Francisco's opinion.

"The federal government's brief in this case is not a typical response to the court's call for the views of the solicitor general," Draye wrote.

"The goal of this argument, lodged just two days before the court conferenced Regents, was to make that extraordinary petition appear necessary," he continued, later accusing the federal government of being "focused on its own project."

Attorneys and law professors who have followed the cases were surprised when the two conservative attorneys appeared to be at loggerheads. But the issues in each case and the duties of the federal solicitor general under the Trump administration shed light on why the two might not see eye to eye.

The cases do not present the same legal questions. Regents, at its current stage, is primarily concerned with the legality of the Trump administration's decision to end the program.

Alsup's order says it fails to comport with the requirements of the Administrative Procedure Act and labeled the government's wind-down arbitrary and capricious.

But Brewer addresses a dispute between federal and state authority regarding immigration law. It also presents an opportunity to address equal protection violations, which the 9th Circuit said was at issue in the case, but chose not to address, citing constitutional avoidance.

Bill Ong Hing, a professor at the University of San Francisco School of Law who directs the school's immigration and deportation defense clinic, said that he was worried when the 9th Circuit avoided the equal protection question when it first decided Brewer.

"I would have preferred a straight equal protection argument," he commented. "When you raise preemption, it does raise the issue of whether DACA was legal or not."

Indeed, the preemption issue seemed to rest uneasily with several members of the 9th Circuit. There was a call to rehear the case en banc, which failed. But six of the court's more conservative judges wrote a "dissental," arguing that because DACA was never approved by Congress, preemption did not apply.

Congress had not given the president its blessing to establish DACA, wrote former 9th Circuit Judge Alex Kozinski, who criticized the panel decision, written by the late Judge Harry Pregerson, for misinterpreting the bounds of the Immigration and Naturalization Act.

"This puzzling new preemption theory is at odds with the Supreme Court's preemption jurisprudence," Kozinski wrote. "It is, instead, cobbled together out of 35-year-old Equal Protection dicta."

Judge Marsha S. Berzon wrote a special concurrence to the decision to not rehear the case, outlining an argument for why the preemption and equal protection analysis was intertwined.

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said that the key to understanding Francisco's position in Brewer, which he described as "contorted," was realizing the duties of representing an institutional client in the U.S. government.

"[Francisco] has to defend the power of the executive branch in the system of divided powers," Hellman said. "He's challenging DACA in very much the same way that [Arizona] is. But when it comes to state power to affect immigration law or to take actions that affect immigration law, he has to defend executive and federal power."

With New York and California actively opposing the Trump administration's immigration efforts, especially with regard to sanctuary cities, Hellman said that Francisco may not want to be forced to argue that individual states have some authority in the immigration context.

In Regents, the government is a party, which will allow Francisco and the solicitor general's office to control the scope of the case. Brewer, if granted, will only give Francisco an opportunity to present the views of the government. His office will not be able to unilaterally guide legal arguments in opposition to DACA.

Mark Rosenbaum, an attorney at Public Counsel who represents plaintiffs in the Regents litigation, does not expect the Supreme Court to take Brewer. If it does, he's not worried about the implications of how a decision would impact his case.

"[Brewer] is a classic preemption case," he said in an interview, commenting that the DACA issue really needs a legislative fix. "All of this stuff is best dealt with by the political process."

Hing, Hellman and Rosenbaum all expect the Supreme Court to deny certiorari in Brewer. Repeatedly, this court has rejected opportunities to weigh in on controversies tied to the priorities of the Trump administration.

"The court is not eager to take this," said Hellman, who pointed to the Supreme Court's reluctance to hear cases concerning the president's travel ban.

At one point, though, at least four of the justices were interested in addressing some legal arguments about DACA-related issues.

In 2016, the court granted certiorari in a case that brought a legal challenge to expanded DACA policies and DAPA, which granted legal protections to the parents of DACA recipients.

The death of Justice Antonin Scalia prohibited the court from giving guidance in that case. Deadlocked 4-4, a split 5th U.S. Circuit Court of Appeals decision affirming a universal injunction prohibiting the implementation of the programs remained in force. United States v. Texas, 579 U.S. ___ (2016).

The Justice Department under President Donald J. Trump has continually asserted that DACA and DAPA are legally indistinguishable and well beyond the authority of law.