Fact Check: Lawsuit on AZ Denying Drivers Licenses to Illegal Aliens

It irritates me as a lawyer when I hear another lawyer pontificate on an area of law they seem to know nothing about. You might get the same feeling in your area of work. It just happened on Happening Now on Fox News, on the hot-button issue of illegal immigration.

Arizona Gov. Jan Brewer is in the news again. She issued an executive order to state employees at the Dept. of Motor Vehicles (DMV) not to issue driver licenses to illegal aliens whose deportations have been suspended by President Barack Obama’s executive order. Now some illegal aliens have sued, demanding to be issued those licenses.

Fox had two criminal defense lawyers on to discuss two lawsuits. One was a criminal prosecution, the other is the Arizona lawsuit.

They should have confined their comments to the criminal case, because they butchered their analysis of the case against Brewer.

One criminal defense lawyer—Jennifer Bonjean—shot off in a snarky tone that Arizona had a weak case because, “There’s something called the Supremacy Clause.” Therefore, she added, Obama’s executive order trumps Brewer’s executive order.

She’s just dead wrong. The Supremacy Clause says that (1) the Constitution, or (2) a federal statute passed by Congress that is constitutional, or (3) treaties ratified by the U.S. Senate that are constitutional, trump state power. Only when one of those three is triggered can federal power overrule state sovereignty.

Obama’s order is none of those. In fact, it violates his constitutional duty to “take care that the laws be faithfully executed,” by refusing to fully enforce the laws Congress has put on the books. Of course we’ve seen a pattern of this. Refusing to defend DOMA. Launching war against Libya without Congress’s authorization. Recess appointments when the Senate is not in recess. We should at least give Obama points for consistency.

A president’s executive order only applies to federal employees and carries no force of law to anyone else. A governor’s executive order applies to state employees. Arizona’s DMV employees work for Brewer and are properly under her orders. Obama’s orders have no authority over them whatsoever.  

Still, this case could go either way. The Supreme Court’s (wrong) decision in Plyler v. Doe (1982) and last year’s (egregiously-wrong) decision in Arizona v. United States might enable the illegal aliens to prevail. But I doubt it. It’s more likely that cases such as Medellin v. Texas from 2008 (a huge case won by the now-famous Sen. Ted Cruz) mean that Brewer will win, because only Congress by law can trump the states on a matter touching upon immigration.

This is especially true regarding drivers licenses. While interstate travel is a right, the Supreme Court reaffirmed in Saenz v. Roe (1999) that it is a right only of American citizens, not all human beings (such as illegal aliens). Even if it were, it doesn’t mean anyone has a right to drive a car on public roads. Driving remains a privilege granted by each state, and each state determines the criteria for who is qualified for that privilege.

I doubt Bonjean has ever read any of those cases. Why should she? I don’t read criminal law cases like I’m sure she does.

But as a consequence, I also try not to comment on criminal law on TV because that’s not my area of law. Out of respect for the audience and the truth, I don’t comment on-air on issues on which I lack expertise, and even in my core areas, if I’m asked a question I don’t know, I readily admit it. Honesty is the best policy, and it makes the audience more likely to believe you when you do give an answer.

If all of my professional colleagues had that policy we’d do a much better job of informing the American public on issues that matter to them, instead of misleading them.  

Breitbart News legal columnist Ken Klukowski is a constitutional lawyer on faculty at Liberty University School of Law.  


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