Full opinion text
ORDER DAVID G. CAMPBELL, District Judge. This case concerns the constitutionality of the State of Arizona’s denial of driver’s licenses to persons commonly known as “DREAMers.” On June 15, 2012, Janet Napolitano, Secretary of the Department of Homeland Security (“DHS”), announced the Deferred Action for Childhood Arrivals (“DACA”) program, which provides deferred action for a period of two years to certain eligible DREAMers (hereafter referred to as “DACA recipients”). Deferred action constitutes a discretionary decision by law enforcement authorities to defer legal action that would remove an individual from the country. The DACA program also provides that DACA recipients may work during the period of deferred action and , may obtain employment authorization documents, generally known as “EADs,” from the United States Citizenship and Immigration- Services (“US-CIS”). Arizona law provides that the Arizona Department of Transportation (“ADOT”) “shall not issue to or renew a driver license ... for a person who does not submit proof satisfactory to the department that the applicant’s presence in the United States is authorized under federal law.” A.R.S. § 28-3153(D). Before the announcement of the DACA program, the Motor Vehicle Division (“MVD”) of ADOT accepted all federally-issued EADs as sufficient evidence that a person’s presence in the United States was authorized under federal law, and therefore granted driver’s licenses to such individuals. After announcement of the DACA program, MVD revised its policy to provide that EADs issued to DACA recipients do not constitute sufficient evidence. MVD continues to accept all other EADs, including those issued to persons who have received other forms of deferred action. Plaintiffs are the Arizona Dream Act Coalition (“ADAC”), an immigrant youth-led community organization, and five individual DACA recipients. They allege that Defendants’ driver’s license policy violates the Supremacy and the Equal Protection Clauses of the United States Constitution. Plaintiffs have filed a motion for preliminary injunction (Doc. 29), and Defendants have filed a motion to dismiss (Doc. 58). The motions are fully briefed, and the Court heard oral argument on March 22, 2013. For reasons stated below, the Court concludes that Plaintiffs have not shown a likelihood of success on the merits of their Supremacy Clause claim. Plaintiffs have shown a likelihood of success on the merits of their equal protection claim, but the Court finds that they have not shown a likelihood of irreparable injury and have not otherwise met the high burden for a mandatory injunction. The Court accordingly will deny Plaintiffs’ motion for a preliminary injunction and grant Defendants’ motion to dismiss in part. BACKGROUND 1. Deferred Action and DACA. The federal government has broad and plenary powers over the subject of immigration and the status of aliens. Arizona v. United States, — U.S.-, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012); see also U.S. Const. art. I, § 8, cl. 4. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., Congress has created a complex and detailed federal immigration scheme governing the conditions under which a foreign national may be admitted to and remain in the United States, see, e.g., id. §§ 1181, 1182, 1184, and providing for the removal and deportation of aliens not lawfully admitted to this country, see, e.g., id. §§ 1225, 1227, 1228, 1229, 1231. See generally United States v. Arizona, 703 F.Supp.2d 980, 987-88 (D.Ariz.2010) (describing the federal immigration scheme). The INA charges the Secretary of Homeland Security with the administration and enforcement of all laws relating to immigration and naturalization. 8 U.S.C. § 1103(a)(1). Under this delegation of authority, the Secretary may exercise a form of prosecutorial discretion and decide not to pursue the removal of a person unlawfully in the United States. This exercise of prosecutorial discretion is commonly referred to as deferred action. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 & n. 8, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (recognizing the practice of “deferred action” where the Executive exercises discretion and declines to institute proceedings, terminate proceedings, or execute a final order of deportation for humanitarian reasons or its own convenience). On June 15, 2012, Secretary Napolitano issued a memorandum announcing that certain young persons not lawfully present in the United States will be eligible to obtain deferred action if they meet specified criteria under the newly instituted DACA program. Doc. 1, ¶¶ 4-5; Doc. 38-3. Eligible persons must show that they (1) came to the United States under the age of 16; (2) continuously resided in the United States for at least five years preceding the date of the memorandum and were present in the United States on the date of the memorandum; (3) currently attend school, have graduated from high school or obtained a general education development certifícate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; (4) have not been convicted of a felony offense, a significant misdemeanor, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and (5) are not older than 30. Doc. 38-3 at 2. Eligible persons receive deferred action for two years, subject to renewal, and may obtain an EAD for the period of the deferred action. Doc. 38-3 at 4; see also 8 C.F.R. § 274a.l2(c)(14). The Napolitano memorandum makes clear that it “confers no substantive right, immigration status or pathway to eitizenship[,]” and that “[ojnly the Congress, acting through its legislative authority, can confer these rights.” Id. An estimated 1.76 million persons are eligible for DACA, with approximately 80,000 residing in Arizona. Doc. 1, ¶ 6. II. Defendants’ Driver’s License Policy. As noted above, A.R.S. § 28-3153(D) provides that non-citizens may obtain Arizona driver’s licenses by presenting proof that their presence in the United States is authorized by federal law. MVD policies identify the documentation deemed sufficient to show federal authorization. See Doc. 34-3. Before the policy change at issue in this case, MVD accepted EADs as satisfactory evidence. Doc. 1, ¶ 9; Doc. 34-3; Doc. 60-1 at 12-15, ¶ 25; Doc. 83-5, ¶ 3. Between 2005 and 2012, MVD issued approximately 47,500 driver’s licenses to persons who submitted EADs to prove their lawful presence in the United States. Doc. 30 at 26 (citing Doc. 34-7 at 1-5). The announcement of the DACA program prompted ADOT Director John S. Halikowski to review the program’s potential impact on ADOT’s administration of the State’s driver’s license laws. Doc. 60-1 at 12-15, ¶¶ 5, 7. Halikowski and Assistant Director Stacey K. Stanton were aware that DACA recipients with EADs were eligible to receive driver’s licenses under MVD’s then-existing policy (Doc. 99-1 at 247-51), and Halikowski’s declaration states that he had a number of concerns about the DACA program (Doc. 60-1 at 12-15, ¶¶ 8-20). After Director Halikowski initiated the ADOT policy review, but before the review had reached a conclusion, Governor Brewer issued Executive Order 2012-06 on August 15, 2012 (the “Executive Order”). The Executive Order concluded that “issuance of Deferred Action or Deferred Action US-CIS employment authorization documents to unlawfully present aliens does not confer upon them any lawful or authorized status and does not entitle them to any additional public benefit.” Doc. 1-1 at 2. The Executive Order directed state agencies to “conduct a full statutory, rule-making and policy analysis and ... initiate operational, policy, rule and statutory changes necessary to prevent Deferred Action recipients from obtaining eligibility, beyond those available to any person regardless of lawful status, for any taxpayer-funded public benefits and state identification, including a driver’s license^]” Id. Governor Brewer stated that the Executive Order was necessary to make clear there would be “no drivers [sic] licenses for illegal people.” Doc. 38, ¶.13. On September 17, 2012, MVD formally revised its policy to conform to the Governor’s order. Doc. 1, ¶ 10; Doc. 1-2. MOTION FOR PRELIMINARY INJUNCTION I. Legal Standard. “A preliminary injunction is an extraordinary remedy never awarded as a matter of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citation omitted). To obtain a preliminary injunction, a plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20, 129 S.Ct. 365; see also Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127, 1135 (9th Cir.2011). Preliminary injunctions can be prohibitory or mandatory. Prohibitory injunctions “preserve the status quo between the parties pending a resolution of a case on the merits.” McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.2012) (citation omitted). Mandatory injunctions go well beyond maintaining the status quo and order responsible parties “to take action.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.2009) (quotation marks and citations omitted). Because they impose affirmative obligations on parties at the very beginning of a case and before full discovery or a trial on the merits, mandatory injunctions require a higher level of proof than prohibitory injunctions. " They are “particularly disfavored,” not granted unless “extreme or very serious damage will result,” and “not issued in doubtful cases.” Park Village Apt. Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir.2011) (quoting Marlyn Nutraceuticals, 571 F.3d at 879); see also Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir.1993) (“ ‘mandatory preliminary relief is subject to heightened scrutiny and should not be issued unless the facts and law clearly favor the moving party.”). Plaintiffs ask the Court to enjoin Defendants from continuing to apply their DACA-speeific driver’s license policy, an injunction that would result in Plaintiffs receiving driver’s licenses when they present EADs and otherwise qualify for licenses. The parties disagree on whether such an injunction would be prohibitory or mandatory. Plaintiffs claim that it is prohibitory because it .merely seeks to prohibit Defendants from applying an unconstitutional policy. Defendants argue that it is mandatory because it would require them to take action they have not taken in the past — issuing driver’s licenses to Plaintiffs and member of their class. The Court finds that the requested injunction is mandatory. As the Ninth Circuit has explained, the test for whether an injunction is prohibitory or mandatory can be found in its effect on the “status quo ante litem,” which means “ ‘the last, uncontested status which preceded the pending controversy.’ ” Marlyn Nutraceuticals, 571 F.3d at 879 (quoting Regents of the Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 514 (9th Cir.1984)). The status quo referred to, of course, is the status quo between the parties to the lawsuit. As the Ninth Circuit has noted, a prohibitory injunction “preserved] the status quo between the parties pending a resolution of a case on the merits.” McCormack, 694 F.3d at 1019 (emphasis added); see also Stanley, 13 F.3d at 1320 (examining relationship between parties to decide whether injunction was prohibitory or mandatory). The last uncontested status between the parties to this case was that Defendants did not issue driver’s licenses to Plaintiffs. Although it is true that Defendants previously accepted EADs as sufficient proof for issuing licenses to other individuals, that prior circumstance did not exist between the parties to this case. Before implementation of the DACA program and issuance of the Executive Order (which occurred on the same date, August 15, 2012), Defendants had never issued licenses to Plaintiffs and Plaintiffs had never sought them. The requested injunction would change this “status quo ante litem.” Defendants would be required to issue driver’s licenses to Plaintiffs and other DACA recipients who submit EADs obtained under the DACA program. Such a change in the preexisting status quo constitutes a mandatory injunction, and the Court therefore will apply the heightened requirements for such injunctions. II. Likelihood of Success on the Supremacy Clause Claim (Count One). “The Supremacy Clause provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.’ ” Arizona, 132 S.Ct. at 2500 (quoting U.S. Const. art. VI, cl. 2). Under this rule, “Congress has the power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). The preemption doctrine consists of three well-recognized classes: express, field, and conflict preemption. Arizona, 132 S.Ct. at 2500-01. Express preemption occurs when Congress “withdraws specified powers from the States by enacting a statute containing an express preemption provision.” Id. at 2501 (citing Chamber of Commerce of U.S. v. Whiting, — U.S.-, 131 S.Ct. 1968, 1974-75, 179 L.Ed.2d 1031 (2011)). Field preemption precludes states “from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id. (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 115, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). Conflict preemption occurs “where ‘compliance with both federal and state regulations is a physical impossibility,’ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and in those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 U.S. 52, 61, 61 S.Ct. 399, 85 L.Ed. 581 (1941).” Id. Plaintiffs do not rely on express preemption and say they do not rely on field preemption. Plaintiffs instead argue that the Arizona policy is “per se preempted” and conflict preempted. The Court finds both arguments to be legally incorrect. A. Per Se Preemption. Plaintiffs argue that Defendants’ policy amounts to a regulation of immigration and is per se pre-empted under De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), and other Supreme Court decisions. Plaintiffs focus specifically on the State’s act of “classifying” aliens — saying that some aliens get driver’s licenses and others do not — and argue that such classification by a state is preempted by the federal government’s sole right to classify aliens. As the Court noted above, however, the traditionally recognized categories of preemption are express, field, and conflict. Arizona, 132 S.Ct. at 2500-01. Per se preemption is not included in the list. Plaintiffs seem to be crafting a specialized kind of preemption that applies only in immigration cases and forbids any state law or action that can be construed as a “classification” of aliens. The Supreme Court cases cited by Plaintiffs do not support this specialized argument. De Canas involved a challenge to a California law that prohibited employers from knowingly employing “an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 424 U.S. at 352, 96 S.Ct. 933. The Supreme Court declined to invalidate the law, and in the process reached three conclusions: (1) The Constitution does not so restrict the field of immigration regulation as to prohibit any state law that deals with aliens, id. at 355-56, 96 S.Ct. 933; (2) Congress has not so occupied the field of immigration regulation as to preclude all state regulation, id. at 357-58, 96 S.Ct. 933; and (3) deciding whether the California law conflicted with federal immigration law required construction of the California statute and implementing regulations, a matter that should be addressed in the first instance by the California courts, id. at 363-65, 96 S.Ct. 933. The case was remanded to the California courts for this purpose. Id. at 365, 96 S.Ct. 933. Thus, contrary to Plaintiffs’ suggestion, De Canas did not adopt a per se preemption rule and did not hold that all state classifications of immigrants are preempted by federal law. To the contrary, the Supreme Court stated that it “has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” Id. at 355, 96 S.Ct. 933 (emphasis added). Plaintiffs cite Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), in support of their per se preemption argument, but Plyler is not a preemption case. It was decided on equal protection grounds and never considered whether the Texas law at issue (barring illegal alien children from attending public schools) was preempted by federal law. Indeed, the majority opinion in Plyler does not even mention the word “preemption.” Id. at 205-230, 102 S.Ct. 2382. Plyler does say that “States enjoy no power with respect to the classification of aliens” and that “[t]his power is committed to the political branches of the Federal Government,” but these comments appear in the Court’s equal protection analysis. Id. at 225, 102 S.Ct. 2382 (quotation marks and citations omitted). The Court cannot conclude that they were intended to establish a kind of per se preemption based on classification. Plaintiffs cite Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982), for the same proposition, but Toll is not a per se preemption case. Toll is a conflict preemption case. The majority opinion never mentions per se preemption. Id. at 3-19, 102 S.Ct. 2977. Toll held that a Maryland law which barred nonimmigrant aliens with G-4 visas from obtaining domicile and paying in-state tuition conflicted with actions of Congress which permitted the aliens to obtain domicile and other financial benefits. Id. at 13-17, 102 S.Ct. 2977. The Court will address Plaintiffs’ conflict preemption argument below. Plaintiffs cite Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), but Nyquist is not a preemption case. Like Plyler, it was decided on equal protection grounds. Id. at 12, 97 S.Ct. 2120. The case never uses the word “preemption,” much less “per se preemption.” For these reasons, the Court finds no support for Plaintiffs’ per se preemption argument in the Supreme Court cases they cite. Those cases do not adopt a specialized form of per se preemption for immigration cases as Plaintiffs suggest. Nor does the Court find Plaintiffs’ citation to several district court cases helpful. The district court in League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal.1995), invalidated several provisions of a California initiative that required state officials and others to determine whether persons were in the United States legally, report them to federal authorities if they were not, and advise the individuals of their obligation to leave the Country, id. at 763-64. Wilson based its holding on De Canas, which it read as holding, as a first of three tests, that any state law which regulated immigration is preempted. Id. at 768. Wilson went on to hold that any state law that required state officials to classify aliens in a manner independent of federal law constitutes a regulation of immigration and is preempted under this “first test.” Id. at 770. The Court does not agree with Wilson’s reading of De Canas. The first holding in De Canas was that the Constitution does not create a federal-only field of immigration which the States can never invade. 424 U.S. at 355, 96 S.Ct. 933. The Court did not adopt the rule applied by Wilson — that any state law which regulates immigration by classifying aliens is preempted. For the same reason, the Court is not persuaded by the other district court cases cited by Plaintiffs, each of which adopts the incorrect Wilson reading of De Canas. See Equal Access Educ. v. Merten, 305 F.Supp.2d 585 (E.D.Va.2004); Villas at Parkside Partners v. City of Farmers Branch, 577 F.Supp.2d 858 (N.D.Tex.2008); Hispanic Interest Coal. of Ala. v. Bentley, No. 5:11-CV-2482-SLB, 2011 WL 5516953 (N.D.Ala. Sept. 28, 2011). The Supreme Court’s recent decision in Arizona v. United States, — U.S. -, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), supports the Court’s understanding of preemption law. In addressing the constitutionality of Arizona’s S.B. 1070, a law that sought to encourage and enhance state enforcement of immigration laws, the Supreme Court never mentioned per se preemption or the “classification” analysis that Wilson claims to have found in De Canas. Instead, the Supreme Court addressed the three traditional categories of preemption — express, field, and conflict (id. at 2500-01, 132 S.Ct. 2492) — and held that one Arizona provision was invalid under field preemption and two were invalid under conflict preemption. Id. ■ at 2501-07, 132 S.Ct. 2492. In summary, the Court finds Plaintiffs’ per se preemption argument to be legally incorrect. The argument finds no support in relevant Supreme Court cases, appears to be inconsistent with traditional preemption analysis, and relies on district court cases the Court finds unpersuasive. B. Conflict Preemption. Plaintiffs initially appeared to argue that Arizona’s policy was preempted because it conflicted with Secretary Napolitano’s discretionary decision to grant deferred status to those who qualify .under the DACA program. Plaintiffs identified several ways in which the Arizona policy conflicted with the purposes of the DACA program, arguing that the policy “impermissibly undermines the federal goal of permitting [DACA recipients] to remain and work in the United States, and to be full, contributing members of society.” Doc. 30 at 23. In response to this argument, Defendants argued that Secretary Napolitano’s memorandum could have no preemptive effect. Defendants are correct. The memorandum does not have the force of law. Although the Supreme Court has recognized that federal agency regulations “-with the force of law” can preempt conflicting state requirements, Wyeth, 555 U.S. at 576, 129 S.Ct. 1187, federal regulations have the force of law only when they prescribe substantive rules and are promulgated through congressionally-mandated procedures such as notice- and-comment rulemaking. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir.2010) (citing United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir.1982)). Secretary Napolitano’s memorandum does not purport to establish substantive rules (in fact, it says that it does not create substantive rights) and it was not promulgated through any formal procedure. As a result, the memorandum does not have the force of law and cannot preempt state law or policy. Perhaps as a result of this reality, Plaintiffs clarified their conflict preemption argument in their reply memorandum, asserting that the Arizona policy “conflicts with Congress’s decision to grant discretion to the Executive Branch to enforce the immigration laws[.]” Doc. 99 at 15 (emphasis in original). Unfortunately for Plaintiffs, this preemption argument also fails. Conflict preemption exists when a state law or policy “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 132 S.Ct. at 2501. The “purpose of Congress is the ultimate touchstonef.]” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quotation marks and citations omitted). Plaintiffs have identified no purpose of Congress with which the Arizona driver’s license policy conflicts. Plaintiffs characterize Defendants’ driver’s license policy as an attempt to decide “that DACA recipients are not authorized to be present” in the United States, an attempt that “undermines Congress’ intent that the federal government alone have discretion to make these decisions.” Doc. 99 at 16 (emphasis in original). The Court does not agree, however, that the Arizona policy constitutes an attempt to decide which aliens may remain in the United States. The policy concerns driver’s licenses. Unlike the Arizona policy that was found to be conflict-preempted in Arizona, the driver’s license policy does not concern the arrest, prosecution, or removal of aliens from the State or the Nation. The Court cannot find that issuance or denial of driver’s licenses “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in delegating immigration authority to DHS. See Hines, 312 U.S. at 67, 61 S.Ct. 399. Plaintiffs argue that Defendants’ driver’s license policy undermines Congress’s intent that the federal government decide who can work in the United States. Plaintiffs’ submit that Defendants’ policy stands as an obstacle to this federal objective because driving is frequently necessary to work. But Plaintiffs cite no authority to show that work was one of the objectives Congress had in mind when it delegated immigration authority to DHS. And to the extent Plaintiffs rely on the purposes of the DACA program, they are looking to a nonbinding policy of a federal agency, not the intent of Congress which is. the touchstone of conflict preemption analysis: What is more, the Court certainly cannot impute the intentions of the DACA program to Congress when Congress itself has declined repeatedly to enact legislation that would accomplish the goals of the DACA program. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011). In short, Defendants have identified no congressional intent that is frustrated by Arizona’s driver’s license policy. They certainly have not identified the kinds of conflicts that have led the Supreme Court to find conflict preemption in cases such' as Arizona, 132 S.Ct. at 2503-07, and, Toll, 458 U.S. at 12-15, 102 S.Ct. 2977. As a result, the Court concludes that Plaintiffs cannot succeed on the merits of their Supremacy Clause claim. III. Likelihood of Success on the Equal Protection Claim (Count Two). A. Plaintiffs Are Similarly Situated. To prevail on their equal protection claim, Plaintiffs “must make a showing that a class that is similarly situated has been treated disparately.” Christian Gospel Church, Inc. v. City and Cnty. of S.F., 896 F.2d 1221, 1225-26 (9th Cir.1990). “The first step in equal protection analysis is to identify the state’s classification of groups.” Country Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th Cir.1988). “The groups must be comprised of similarly situated persons so that the factor motivating the alleged discrimination can be identified.” Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir.2005). Plaintiffs argue that DACA recipients are similarly situated to other noncitizens holding EADs who are eligible to obtain driver’s licenses in Arizona. Defendants argue that DACA recipients are not similarly situated to other EAD holders, including other deferred action recipients, because these other noncitizens are classified differently under federal immigration law. Defendants point to USCIS’s creation of a new EAD category code for DACA recipients. USCIS’s form 1-765 instructs DACA recipients to enter “(e)(33),” whereas other forms of deferred action are categorized under “(c)(14).” Defendants also note that the Department of Health and Human Services (“DHHS”) has determined that DACA recipients are not “lawfully present” for purposes of health care benefits conferred on other deferred action recipients, 45 C.F.R. § 152.2(8), and argue that this determination shows that even the federal government distinguishes the DACA program from other forms of deferred action. Plaintiffs argue that these distinctions are not relevant to the issue of whether DACA recipients are similarly situated for purposes of Defendants’ driver’s license policy. The Court is inclined to agree with Plaintiffs. The question is not whether DACA recipients are identical in every respect to other deferred action recipients, but whether they are the same in respects relevant to the driver’s license policy. See Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (“The Equal Protection Clause.does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.”). Defendants have identified nothing about the (c)(33) category code to suggest that DACA recipients are somehow less authorized to be present in the United States than are other deferred action recipients. Nor have Defendants shown that the DHHS policy is based on DACA recipients being less authorized. All deferred action recipients are permitted to remain in the country without removal for a temporary period of time, and the EADs held by those recipients appear to be valid only for a temporary period. See 8 C.F.R. § 274a.l2(c)(14) (“USCIS ... may establish a specific validity period for an [EAD]” for “[a]n alien who has been granted deferred action”). Moreover, Defendants issued driver’s licenses to all applicants submitting an EAD as proof of “authorized presence” before the DACA program was implemented. Doc. 60-1 at 12-15, ¶¶ 25-26. Defendants argue that DACA recipients are different because other forms of deferred action arise “incident to some type of statutory relief or in anticipation of a pending regulatory or statutory change.” Doc. 85 at 21; see also Doc. 108 at 2. Plaintiffs vigorously dispute that deferred action recipients other than DACA grantees are on a path to formal immigration status, noting that deferred action often is granted to persons in active immigration removal proceedings or to other persons with no hope of a formal legal immigration status such as witnesses paroled into the United States pending completion of a criminal trial, after which they will be removed. Defendants have not provided an effective response to these arguments. See Doc. 86-2 at 71. Defendants prepared a chart to show that “the vast majority of driver’s licenses issued to EAD holders were issued to aliens who had actual or pending lawful immigration status and who are not remotely similarly situated to Plaintiffs.” Doc. 85 at 23-24. But the chart, based on a statistical sample, shows that ten of the persons sampled held a(c)(14) category code, had no formal immigration status or a pathway to obtain formal status, did not have a classification or status authorized by statute or regulation, and yet received driver’s licenses from the State. Doc. 83-6 at 7. Defendants argue that these ten licenses constitute only 1.3% of the licenses issued to persons in the statistical sample, apparently suggesting that this relatively small percentage means Plaintiffs have not been treated differently. Plaintiffs dispute the chart, arguing that many deferred action recipients listed in other columns of the chart also lack formal immigration status or any meaningful hope of such status. But even if Defendants’ chart is accepted as correct, 1.3% of licenses issued to EAD holders over the last seven years is not an insignificant number. It equates to more than 600 deferred action recipients who have been granted driver’s licenses on the basis of EADs. Plaintiffs also argue that they are similarly situated to persons issued licenses on the basis of an EAD with (c)(9) and (c)(10) category codes. The (c)(9) code is for applicants for adjustment of status, the (c)(10) for applicants for suspension of deportation and cancellation of removal. 8 C.F.R. §§ 274a.l2(c)(9), (c)(10). Many of these individuals have no formal immigration status and little hope of one, and yet they amount to 66.4% of the people granted licenses during the last seven years on the basis of EADs. Doc. 85 at 24. Given the fact that (c)(9) and (c)(10) codes do not necessarily reflect individuals with any significant likelihood of receiving formal immigration status, and the fact that more than 600 similarly situated people appear to, have received driver’s licenses during the last seven years, the Court concludes that Plaintiffs are likely to succeed in establishing that DACA recipients are similarly situated to persons who have obtained a driver’s license in the past using EADs. B. Level of Scrutiny. The Court must next determine the level of scrutiny to be applied under the equal protection analysis. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir.1995) (quotation marks and citations omitted). Plaintiffs argue that (1) Defendants’ driver’s license policy is based on alienage and subject to strict scrutiny; (2) if not, the policy is subject to heightened scrutiny; and (3) if not, Defendants’ policy cannot survive even rational basis review. Defendants’ argue for rational basis scrutiny. 1. Strict Scrutiny. The Supreme Court has stated that “classifications based on alienage ... are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (“Aliens as a class are a prime example of a ‘discrete and insular’ minority for whom such heightened judicial solicitude is appropriate.” (citation omitted)). Graham struck down Arizona and Pennsylvania laws that denied public assistance to legal resident aliens or to resident aliens who did not meet a durational residency requirement. Id. at 367-68, 379-80, 91 S.Ct. 1848. The states sought to favor citizens and long-term residents in their expenditure of limited resources, but the Court found the classifications to be “inherently suspect,” explaining that the states’ cost-savings justification “is particularly inappropriate and unreasonable when the discriminated class consists of aliens.” Id. at 376, 91 S.Ct. 1848. Underlying the Court’s holding was its focus on the similarities between legal resident aliens and citizens: “Aliens like citizens pay taxes and may be called into the armed forces.... [Alliens may live within a state for many years, work in the state and contribute to the economic growth of the state.” Id. (quotation marks and citations omitted). Two years later, the Supreme Court reaffirmed its holding that aliens are a suspect class when it struck down a Connecticut rule that denied bar admission to legal resident aliens. In re Griffiths, 413 U.S. 717, 718-19, 729, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). Griffiths also noted that “[r]esident aliens, like citizens, pay taxes, support the economy, serve in the Armed Forces, and contribute in myriad other ways to our society.” Id. at 722, 93 S.Ct. 2851. The Court found that limiting the practice of law to citizens did not serve the state’s interest in “assuring] the requisite qualifications of persons licensed to practice law,” and that the “wholesale ban” was not justified on “the possibility that some resident aliens are unsuited to the practice of law[.]” Id. at 722-25, 93 S.Ct. 2851. In Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), legal resident aliens challenged a New York law that conditioned eligibility for postsecondary education financial assistance on residency and citizenship. Id. at 2-6, 97 S.Ct. 2120. The citizenship requirement was satisfied if the applicant was a citizen, had applied to become a citizen, or, if not qualified to apply for citizenship, submitted a statement affirming intent to apply for citizenship as soon as the applicant was qualified. Id. at 3-4, 97 S.Ct. 2120. In finding that the law impermissibly discriminated on the basis of alienage, the Supreme Court again described the similarities between citizens and lawful resident aliens: “Resident aliens are obligated to pay their full share of the taxes that support the assistance programs.... And although an alien may be barred from full involvement in the political arena, he may play a role perhaps even a leadership role in other areas of import to the community.” Id. at 12, 97 S.Ct. 2120. The Supreme Court reached a different conclusion with respect to undocumented aliens. In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the Court held that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.’ ” Id. at 223. Plyler considered the constitutionality of a Texas law that denied undocumented alien children a free public school education. Id. at 205, 102 S.Ct. 2382. The Court explained that “undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful action.” Id. at 220,102 S.Ct. 2382. In summary, the Supreme Court has applied strict scrutiny to classifications affecting lawful resident aliens, but not to classifications affecting undocumented aliens. This case falls somewhere between those two. groups. Plaintiffs are undocumented aliens who have been granted deferred status for a period of two years. Their status is not the result of a statute or federal regulation, but stems solely from an exercise of prosecutorial discretion. Unlike the aliens in Graham, Griffiths, and Nyquist, Plaintiffs have not historically been lawfully employed, and in general they have not paid income taxes or served in the military. Even DHHS classifies DACA recipients as not “lawfully present” for purposes of certain benefits. Plaintiffs in some respects are like the undocumented aliens in Plyler, whom the Court described as enjoying an “inchoate federal permission to remain,” 457 U.S. at 226, 102 S.Ct. 2382, but there are material distinctions from the Plyler undocumented aliens as well. As a result of the DACA program, Plaintiffs may receive EADs and Social Security numbers, work lawfully, and pay income taxes. In an effort to decide what level of scrutiny to afford Plaintiffs, the Court finds helpful guidance in several court of appeals decisions. In LeClerc v. Webb, 419 F.3d 405 (5th Cir.2005), the Fifth Circuit applied rational basis scrutiny to a Louisiana rule that prohibited aliens temporarily admitted to the United States (referred to in the opinion as “nonimmigrant aliens”) from sitting for the state’s bar examination — only citizens or permanent resident aliens could become lawyers. The court started with the premise that “the Supreme Court has reviewed with strict scrutiny only state laws affecting permanent resident aliens.” Id. at 415. In cases concerning illegal aliens, the children of illegal aliens, or nonimmigrant aliens, LeClerc noted that the Supreme Court “has either foregone Equal Protection analysis, see Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (nonimmigrant G-4 aliens); De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) (illegal aliens), or has applied a modified rational basis review, see Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (children of illegal aliens).” Id. at 416. LeClerc thus read the Supreme Court’s precedent as requiring strict scrutiny only when the state law alienage classification “t[akes a] position seemingly inconsistent with the congressional determination to admit the alien to permanent residence.” Id. at 417 (emphasis in original) (quoting Foley v. Connelie, 435 U.S. 291, 295, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978)). LeClerc noted that unlike “resident aliens [who] are similarity situated to citizens in their economic, social, and civic (as opposed to political) conditions[,]” “[n]on-immigrant aliens’ status is far more constricted[J” Id. at 418. “Based on the aggregate factual and legal distinctions between resident aliens and nonimmigrant, aliens,” LeClerc explained, “we conclude that although aliens are a suspect class in general, they are not homogeneous and precedent does not support the proposition that nonimmigrant aliens are a suspect class entitled to have state legislative classifications concerning them subjected to strict scrutiny.” Id. at 419. “By process of elimination, rational basis review must be the appropriate standard for evaluating state law classifications affecting nonimmigrant aliens.” Id. at 420. LeClerc was followed in League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir.2007). LULAC concerned a Tennessee law that conditioned issuance of a driver’s license on proof of citizenship or lawful permanent resident status. Id. at 526. Plaintiffs were lawful temporary aliens, not lawful permanent aliens. Plaintiffs cited Nyquist in support of their argument that strict scrutiny applied to any classification affecting lawful aliens. Id. at 531. The Sixth Circuit distinguished Nyquist because the plaintiffs there were lawful permanent resident aliens. Id. at 532-33. Adopting LeClerc’s lengthy discussion about “why lawful temporary resident aliens, or ‘nonimmigrant aliens,’ are not entitled to the same protection as lawful permanent resident aliens,” LULAC concluded that “[b]ecause the instant classification does not result in discriminatory harm to members of a suspect class, it is subject only to rational basis scrutiny.” Id. at 533. The Second Circuit reached the opposite conclusion in Dandamudi v. Tisch, 686 F.3d 66 (2d Cir.2012), which involved a challenge to a New York law that limited pharmacist licenses to citizens and lawful permanent resident aliens. Id. at 69. The plaintiffs were nonimmigrant aliens holding two kinds of temporary worker visas. The court applied strict scrutiny because “a state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently.” Id. at 70. The court reviewed the Supreme Court cases discussed above and concluded that “the Supreme Court recognizes aliens generally as a discrete and insular minority[.]” Id. at 75. The court refused to construct an exception to the Graham rule based on the “transience” of nonimmigrant aliens as compared to lawful permanent resident aliens. Id. at 78-79. The court also noted that “federal law permits many aliens with [these two kinds of temporary worker visas] to maintain their temporary worker authorization for a period greater than six years. All plaintiff's in this case, for example, have been legally authorized to reside and work in the United States for more than six years.” Id. at 71 (emphasis in original). The court further observed that “[a] great number of these professionals remain in the United States for much longer than six years and many ultimately apply for, and obtain, permanent residence. These practicalities are not irrelevant. They demonstrate that there is little or no distinction between [lawful permanent resident aliens] and the lawfully admitted nonimmigrant plaintiffs here.” Id. at 78. Accordingly, the court distinguished LeClerc and LULAC on the ground that “[t]he aliens at issue here are ‘transient’ in name only.” Id. The Court finds the reasoning in LeClerc and LULAC persuasive. Plyler makes clear that strict scrutiny does not apply to all classes of aliens, and the decisions of the Fifth and Sixth Circuits reasonably conclude that the rationale of Graham, Griffiths, and Nyquist applies to lawful resident aliens who are like citizens in most material respects. Dandamudi also concerned aliens who were factually similar to lawful permanent residents. Plaintiffs selectively quote from Dandamudi and argue that the decision supports the application of strict scrutiny to classifications directed at persons “who have been granted the legal right to reside and work in the United States,” 686 F.3d at 72, but the Dandamudi plaintiffs each had an official visa, not merely a temporary grant of deferred action. Dandamudi does not support Plaintiffs’ claim for strict scrutiny. DACA recipients are more like the undocumented aliens in Plyler and the temporary aliens in LULAC and LeClerc than the visa holders in Dandamudi or the permanent residents in Graham, Griffiths, and Nyquist. Accordingly, Plaintiffs have not established that Defendants’ policy is subject to strict scrutiny. 2. Intermediate Scrutiny. Plaintiffs alternatively argue that DACA recipients constitute a quasi-suspect class warranting heightened scrutiny. Plaintiffs rely on High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.1990), which held that heightened scrutiny applies to plaintiffs who (1) have suffered a history of discrimination; (2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and (3) show that they are a minority or politically powerless. Id. at 573. The Court cannot conclude that Plaintiffs are likely to qualify for heightened scrutiny under this test. Plaintiffs contend that they constitute a discrete group with obvious, immutable, or distinguishing characteristics because they have been provided EADs with the unique (c)(33) category code. But the Court is not persuaded that this category code constitutes the same kind of distinguishing characteristic as gender or illegitimacy. See Lockhart v. McCree, 476 U.S. 162, 175, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (noting that “race, gender, or ethnic background” are examples of immutable, characteristics). And the Supreme Court in Plyler held that the plaintiffs’ undocumented status is not “an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action.” 457 U.S. at 220, 102 S.Ct. 2382. In addition, because individuals identified by the (c)(33) category code have been in existence only since the recent start of the DACA program, Plaintiffs likely cannot show that such individuals have suffered a history of discrimination. Plaintiffs argue that they are politically powerless because they have been granted federal authorization to live and work in the United States, but still cannot vote. Accepting this argument would ignore the political realities of the national immigration scheme and the fact that the law, not discrimination, denies them the right to vote. See Foley, 435 U.S. at 295, 98 S.Ct. 1067 (“It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of strict scrutiny, because to do so would ‘obliterate all the distinctions • between citizens and aliens, and thus depreciate the historic values of citizenship.’ ” (quoting Nyquist, 432 U.S. at 14, 97 S.Ct. 2120 (Burger, C.J., dissenting))). Nor can the Court conclude that persons unable to vote are necessarily politically powerless. In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the Supreme Court held that the mentally disabled, including the severely disabled, were not politically powerless because they had the ability to “attract the attention of the lawmakers.” Id. at 445, 105 S.Ct. 3249; see also High Tech Gays, 895 F.2d at 574. The DACA program itself attests to the fact that Plaintiffs have attracted the attention of policymakers in the federal government. Plaintiffs also cite Plyler as an intermediate scrutiny case and argue that the Court should apply its rationale. Plyler, however, is an anomaly. It does not apply intermediate scrutiny. See 457 U.S. at 217-18 n. 16,102 S.Ct. 2382 (discussing but not applying intermediate scrutiny review). Plyler appears to apply a hybrid form of review, stating that the Texas law in question “can hardly be considered rational unless it furthers some substantial goal of the State.” Id. at 224, 102 S.Ct. 2382 (emphasis added). However one characterizes this unusual standard, the Court cannot agree that it applies here. Plyler emphasized two facts as justifying its higher level of review: (1) the age of the undocumented children {id. at 223, 102 S.Ct. 2382 (“[the law] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status”)), and (2) the importance of education to those children and the entire nation {id. at 221, 102 S.Ct. 2382 (“education has a fundamental role in maintaining the fabric of our society”)). Unlike the class of undocumented children in Plyler, DACA recipients, and specifically Plaintiffs in this putative class action, are older — between 18 and 26. Doc. 1, ¶¶ 19-23. Because of their age, Plaintiffs are not like the young children in Plyler whose compliance with the law was entirely dependent on the conduct of parents who decided to enter the United States illegally and remain here in violation of the law. And unlike education, a driver’s license does not provide “the basic tools by which individuals might lead economically productive lives to the benefit of us all.” Id. at 221, 102 S.Ct. 2382. Plaintiffs have not argued — nor could they — that a driver’s license has the same significance to an individual or society as a primary school education. The Court concludes that Plaintiffs have not shown that they are likely to qualify for heightened scrutiny. 3. Rational Basis Scrutiny. “Under traditional rational basis analysis, a state law classification that ‘neither burdens a fundamental right nor targets a suspect class’ will be upheld ‘so long as it bears a rational relation to some legitimate end.’” LeClerc, 419 F.3d at 421 (emphasis in original) (quoting Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997)). But “even the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.” Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Cases have varied in their application of the rational basis test. Many apply the test in a highly deferential manner, upholding the challenged law “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Id. at 320, 113 S.Ct. 2637 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). This approach reflects “deference to legislative policy decisions” and a reluctance of courts “to judge the wisdom, fairness, logic or desirability of those choices.” LeClerc, 419 F.3d at 421. Other cases have applied a more rigorous form of rational basis scrutiny. This analysis looks, at least initially, to the actual reasons for the challenged classification and asks whether they are rationally related to a legitimate governmental objective. Examples of this more active review include Supreme Court cases such as U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). These cases have applied the rational basis test in a more rigorous manner than the highly deferential cases, and yet have done so without announcing a new level of review, without acknowledging that they were departing from traditional rational basis analysis, and without identifying the principles to be used in determining whether a more active or a more deferential version of the rational basis test should be applied. In Moreno, the Supreme Court applied rational basis review to an amendment of the Food Stamp Act of 1964 that denied benefits to any household whose members were not all related to each other. The Supreme Court found that “[t]he challenged statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act.” 413 U.S. at 534, 93 S.Ct. 2821. The Court examined the amendment’s legislative histoi-y to determine whether the challenged classification rationally furthered some other legitimate governmental interest. Id. The Court concluded that the legislative history “indicate[d] that that amendment was intended to prevent so-called ‘hippies’ and ‘hippie communes’ from participating in the food stamp program,” and found that “[t]he challenged classification clearly cannot be sustained by reference to this congressional purpose.” Id. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. at 534, 93 S.Ct. 2821. The Court considered the Government’s argument that the amendment was rationally related to the legitimate interest “in minimizing fraud in the administration of the food stamp program,” but determined that the existence of other provisions within the Act that were intended to prevent those same abuses “casts considerable doubt upon the proposition that the ... amendment could rationally have been intended to prevent those very same abuses.” Id. at 535-37, 93 S.Ct. 2821. The Court concluded by noting that “[traditional equal protection analysis does not require that every classification be drawn with precise ‘mathematical nicety.’ But the classification here in issue is not only ‘imprecise’, it is wholly without any rational basis.” Id. at 538, 93 S.Ct. 2821. In Cleburne, the Supreme Court used rational basis, review to invalidate a zoning ordinance that required a special permit for the operation of a home for the mentally disabled. The Court noted that under rational basis review “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 473 U.S. at 446, 105 S.Ct. 3249. The Court considered whether the city had a legitimate interest in requiring a permit for the home while freely permitting other care and multiple-dwelling facilities. ' Id. at 447-48, 105 S.Ct. 3249. The Court found that any difference between a group home for the mentally disabled and other multiple-dwelling facilities was not legitimate because the mentally disabled group home did not “pose any special threat to the city’s legitimate interests[.]” Id. at 448, 105 S.Ct. 3249. The city argued that the special permit requirement was necessary because of the negative attitude of homeowners located near the proposed facility, but the Supreme Court held that “[pjrivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Id. at 448, 105 S.Ct. 3249 (quoting Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984)). The city also argued that nearby junior high school students might harass the facility’s occupants, but the Court found this concern based on “undifferentiated fears.” Id. at 449, 105 S.Ct. 3249. The Court dismissed several other proffered grounds for the permit requirement, finding that none of them bore a rational relationship to a legitimate governmental interest. Id. at 449-50, 105 S.Ct. 3249. The Court concluded “that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded[.]” Id. at 450, 105 S.Ct. 3249. In Romer, the Supreme Court found that a Colorado voter initiative that repealed laws prohibiting discrimination based on sexual orientation failed rational basis review. The Court noted “that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” 517 U.S. at 634, 116 S.Ct. 1620. The Court found that “[t]he breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that [the initiative] is directed to any identifiable purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Id. at 635, 116 S.Ct. 1620. A recent example of more rigorous rational basis review is Diaz v. Brewer, 656 F.3d 1008 (9th Cir.2011). Diaz affirmed a district court’s order that preliminarily enjoined Arizona from terminating the healthcare benefits of state employees’ same-sex partners. Id. at 1010. The Ninth Circuit found the district court’s order “consistent with long standing equal protection jurisprudence holding that ‘some objectives, such as a bare ... desire to harm a politically unpopular group, are not legitimate interests.’ ” Id. at 1015 (quoting Lawrence v. Texas, 539 U.S. 558, 580, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (O’Connor, J., concurring)). The Ninth Circuit found that “the district court properly rejected the state’s claimed legislative justification because the record established that the statute was not rationally related to furthering such interests.” Id. at 1015, 123 S.Ct. 2472. In each of these cases, courts appear to have identified what they understood to be the actual reason for the classification, to have found that reason impermissible, and therefore to have found that the classification failed the rational basis test. “Whether they reflect private biases, negative attitudes towards certain classes of persons, or some other perceived illegitimate basis, classifications arising from improper motives appear to draw a more active level of review. The Court finds this kind of rational basis review to be problematic. The rational basis test has long been viewed as reflecting the deference courts should afford to the pohcy-making branches of government. The Court also finds this more rigorous rational basis review, with its lack of guiding principles, to be dangerously susceptible to invoking a judge’s own policy preferences. These concerns notwithstanding, the Supreme Court and Ninth Circuit plainly have applied a more active rational basis review in some cases, and those cases constitute precedent binding on this Court. When the Court considers what appears to be the actual reason for Arizona’s driver’s license policy, it concludes that the policy is likely to invoke, and fail, such rational basis scrutiny. C. Application of Rational Basis Review. On June 15, 2012, the day Secretary Napolitano announced the DACA program, Arizona Governor Brewer publicly denounced the program as “backdoor amnesty,” “desperate political pandering by a president desperate to shore up his political base,” and “pandering to a certain population.” Doc. 38, ¶ 12. Although the evidence shows that ADOT thereafter undertook a réview of its driver’s license policy in light of the DACA program, that review had not reached a conclusion as of August 15, 2012, the day the federal government began accepting DACA applications and the day on which Governor Brewer issued her Executive Order. Director Halikowski testified that ADOT had not changed its policy as of August 15th and was still “in the process of coming up with a recommendation.” Doc. 86-4 at 97-98; see also Doc. 60-1 at 12-15, ¶¶ 21-24. The Governor, however, had made her decision. She issued the Executive Order directing State agencies to deny DACA recipients “any taxpayer-funded public benefits and state identification, including a driver’s license[.]” Doc. 1-1.