Jan Brewer leads 'constitutional throwdown' against DREAM Act-lite

Arizona, under Brewer, became a leading force in the anti-illegal immigration movement by passing Senate Bill 1070, which included tough measures designed to shrink the numbers of illegal immigrants. Several other states including Georgia and Alabama followed suit, sparking legal showdowns between the states and the US Department of Justice. This summer, the US Supreme Court struck down most of SB 1070, but retained one key provision: the ability of police officers to ask for identification from those they suspect are in the country illegally.

Brewer’s latest move could be part of an effort to build support in Congress and other states to challenge the constitutionality of DACA, which critics say goes beyond the White House's constitutional purview. Rep. Lamar Smith (R) of Texas, for example, has called DACA “a breach of faith with the American people and the rule of law.” 

Brewer's order “is a broader challenge to the federal government, because this [Obama] order, this policy, is clearly illegal,” says Mark Krikorian, director of the Center for Immigration Studies, which advocates stronger immigration laws and enforcement. “It’s trying to set up a confrontation that will focus not just on Governor Brewer’s order but on the illegality of the president’s policy."

"In a way, I think they’re kind of hoping that the Justice Department will sue them before the election,” he says. 

Some observers suggest that the Obama administration will move swiftly to block state efforts to withhold benefits from successful DACA applicants.

“I believe the Obama administration is going to come out and say we’re changing the notes and tones of our directive, and say these kids are here under the color of law and protected by US immigration laws and due process, and/or they have a specific nonvisa immigrant category that allows them to have a driver’s license,” Arizona immigration attorney Jose Penalosa told KSAZ-TV on Thursday.

The president has said the policy is legal because the mechanisms for it are already in place and require no new bureaucracy or funding to implement. Expenses will be refunded, he says, through a $465 application fee.

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