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Obama’s DREAM Act-lite runs into more trouble as Nebraska, Arizona go rogue

Nebraska has joined Arizona in opposing legal status for immigrants who are newly-documented under Obama’s Deferred Action for Childhood Arrivals program, setting up a constitutional battle while raising tough questions about the program.

Two days after Arizona Gov. Jan Brewer declared her state won’t confer driver’s licenses and other state benefits to newly-documented immigrants under Obama’s “deferred action” immigration policy, Nebraska, too, put its foot down.

Echoing Gov. Brewer, Nebraska Gov. Dave Heineman (R) said on Saturday that Obama’s Deferred Action for Childhood Arrivals program does not make successful applicants “legal citizens,” meaning they remain ineligible for state benefits like driver’s licenses and other services.

The deferred action plan, which took effect on Wednesday, could make as many as 1.7 illegal immigrants eligible for “deferred action” status, meaning they’re eligible to receive work papers and driver’s licenses. Applicants have to be no more than 31 years old, must have arrived in the US before the age of 16, and have no major crimes on their record.

QUIZ: Could you pass a US citizenship test?

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The opposition stances taken by Nebraska and Arizona seem to at least partially challenge federal law, specifically the 2005 Real ID Act, which lists “deferred action” recipients as being eligible for driver’s licenses.

Experts, however, admit there are gray areas in the Real ID Act, especially as neither Arizona nor Nebraska lawmakers have ratified it. That means the moves by the two states amount to a “Constitutional throwdown,” according to Michael Olivas, an immigration law expert at theUniversity of Houston, who also suggests the driver’s license ban is “just sheer political pandering to largely nativist and restrictionist forces.”

But as legal battles loom, the moves by the two governors do have the potential to more immediately undermine Obama’s new immigration policy.

Indeed, state opposition isn’t the only concern for applicants. While thousands lined up this week for help to apply, some Hispanic groups are concerned that immigration authorities may — despite the President’s orders and assurances of anonymity — use the information to find and deport family members. It’s not clear whether the program would continue if Mitt Romney wins the presidency.

Nebraska and Arizona likely have over 100,000 eligible illegal immigrants within their borders.

The move by Brewer drew sharp rebukes from some legal scholars, activists, and Democratic lawmakers.

Jan Brewer has once again shown that she is nothing more than George Wallace in a skirt,” Jeff Rogers, the chair of the Pima County Democratic Party, told reporters in Arizona. “What’s next? Will she personally stand outside the Motor Vehicle office and block entry to qualified ‘DREAMers’?”

George Wallace is the late Alabama governor who made his “stand in the schoolhouse door” at theUniversity of Alabama to block African-American students from entering, and who, upon his inauguration, insisted, “Segregation now, segregation tomorrow, segregation forever.”

Harsh as it is, the Wallace analogy will ring true for many Americans. But it also suggests another underlying problem with Obama’s policy.

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In the case of Wallace, he was challenging Congress. In the case of Arizona and Nebraska, the governors are challenging what some conservatives see as an extra-constitutional gambit orchestrated by Obama alone as a way to implement the failed DREAM Act through bureaucratic fiat.

That debate is one that Brewer and Heineman may be trying to force Obama to have ahead of the election, says Mark Krikorian, director of the conservative Center for Immigration Studies. “It’s a broader challenge to the government … and also makes sense for electoral purposes,” he says.

But not all Republicans are on board. Texas Gov. Rick Perry, who lost ground in the presidential primaries after sympathizing with the plight of illegal immigrants, has criticized the policy, but has not taken action against it. In fact, Texas is currently one of only a few states that allow in-state tuition at public universities for illegal immigrants.

And therein lays one big test for Obama’s new immigration policy. In order for “deferred action” immigrants to get in-state tuition benefits — a key selling point — the bulk of state legislatures will have to pass legislation to make that possible.

At the very least, the moves by Arizona and Nebraska suggest that the state-by-state debate over what some are calling DREAM Act-lite will continue and likely intensify.