Last August, the Obama Administration began implementing its Deferred Action for Childhood Arrivals (DACA) program – a policy through which certain undocumented individuals receive temporary permission to stay in the U.S. for two years as well as the right to apply for employment authorization. After some initial resistance to issuing driver’s licenses to DACA grantees, most states eventually decided to do so. At this time, only two states – Arizona and Nebraska – continue to deny state driver’s licenses or identification cards to DACA recipients.
In November 2012, a number of civil rights organizations filed a class-action lawsuit  on behalf of the Arizona DREAM Act Coalition and other young immigrants, challenging the Executive Order issued by Governor Brewer of Arizona on August 15, 2012 that denied state benefits, including driver’s licenses, to DACA grantees. The lawsuit alleged that Arizona’s policy violates the Supremacy and Equal Protection clauses of the U.S. Constitution and requested a preliminary injunction in the form of a court order directing Arizona to stop enforcing its policy of denying driver’s licenses to DACA recipients. On May 16, 2013, a U.S. District Judge rejected the argument that federal law preempted the Governor’s order. However, the court concluded that the plaintiffs’ allegation that they are being denied equal protection is likely to succeed at a future hearing on the full merits of the case. The equal protection argument is based on the fact that DACA recipients are being denied Arizona driver’s licenses while other noncitizens who have received deferred action status and work authorization from the federal government under different programs are issued licenses. According to the court’s order  , Arizona can continue its policy for now. However, the court will set a full hearing for the DACA plaintiffs to prove that they are being denied equal protection under Arizona’s law. At that time, the court may order Governor Brewer to halt her policy of denying driver’s licenses to DACA recipients.
Following Governor Brewer’s lead, on August 17, 2012, Nebraska Governor Heineman declared that his state would not issue driver’s licenses or other public benefits to DACA grantees. Two lawsuits have been filed against the Nebraska Department of Motor Vehicles (DMV) which interpreted the Governor’s announcement as a directive to deny licenses to DACA grantees. Like in Arizona, the DMV refuses to accept the work authorization permits of DACA recipients as proof of eligibility for driver’s licenses but continues to issue licenses to noncitizens with deferred action work permits through other programs. The lawsuit  filed by the Mexican American Legal Defense and Educational Fund (MALDEF) alleges violations of the Supremacy and Equal Protection clauses of the U.S. Constitution. The case  brought by the ACLU of Nebraska alleges that the DMV implemented this policy in violation of the Due Process clause of the state Constitution and circumvented the state’s Administrative Procedures Act, which requires published notice and a public hearing before changing such a policy.
This document was prepared in June 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle and Advocacy Intern Casey Lee. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen at firstname.lastname@example.org  or (202) 635-7410.