U.S. District Court Judge Susan Bolton didn’t immediately rule on a motion to dismiss Arizona’s countersuit against the federal government, but left no doubt that she would throw out at least part of the case.
At a hearing Wednesday at the Sandra Day O’Connor United States Courthouse, Bolton picked apart the state’s arguments. Both Bolton and an attorney from the U.S. Department of Justice said the arguments raised in Arizona’s countersuit – filed in response to the federal government’s lawsuit against Senate Bill 1070 – were resolved by the Ninth U.S. Circuit Court of Appeals in similar lawsuits filed in the 1990s by Arizona and California.
On several of Arizona’s claims, the state is asking the court to overturn the Ninth Circuit’s the previous rulings, Bolton said, including its ruling that the U.S. Constitution’s invasion clause applies only to foreign powers, not illegal immigration. Bolton said she has no authority to overturn the higher court’s rulings.
“Aren’t you also asking me to reinterpret the invasion clause?” Bolton asked Assistant Attorney General Michael Tryon, who represented the state at the hearing. “I have really no choice but to grant the motion (to dismiss) in respect to that.”
Arizona’s five-point countersuit, which Gov. Jan Brewer and Attorney General Tom Horne filed in February, accuses the federal government of failing to maintain operational control of Arizona’s border with Mexico; failing to enforce federal immigration laws; failing to protect Arizona from the negative consequences of illegal immigration; failing to reimburse the state for the cost of incarcerating criminal illegal immigrants; and violating Arizona’s 10th Amendment rights.
Tryon said circumstances have changed in the 12 years since the Ninth Circuit issued its rulings in the Arizona and California cases – new federal laws have been enacted to combat illegal immigration and the U.S. Department of Homeland Security, from whom the state is demanding action, did not even exist at the time. Yet the illegal immigration problem has gotten worse, he said.
“It’s been in the political arena for 12 years and nothing has happened,” Tryon said. “The difference, your honor, is that we have congressional statutes that require operational control.”
In response to DOJ’s arguments that the countersuit should be thrown out because Arizona is asking the court to rule on political questions, the state said the feds effectively waived their claim that the issues are nonjusticiable political questions when it sued to prevent the state from enacting SB1070.
Attorney Varu Chilakamarri, who represented the DOJ, said SB1070 didn’t change anything.
“This argument is meritless,” Chilakamarri said. “There’s no question here that their claims have to rise and fall on their own, and they do not.”
Bolton also questioned the state’s arguments that the federal government has failed to carry out the Secure Fence Act of 2006 and that it has provided inadequate reimbursement to Arizona under the State Criminal Alien Assistance Program (SCAAP), which compensates states for the cost of incarcerating illegal immigrants who commit crimes.
The judge noted that the Secure Fence Act does not include a deadline for completing about 700 miles of fence. And in regard to the SCAAP money, she said cannot order Congress to appropriate funding to anything or change the formula the feds use for determining SCAAP funding.
Tryon said the state isn’t asking for SCAAP money.
“We are not seeking a remedy,” he said. “We’re seeking a declaration from your honor.”
After the hearing, Brewer told reporters that the hearing was “nothing less than we had expected.”
“I know it’s an uphill battle. I understand that there is a precedent set. But … things have changed since those precedents were made and we’ll wait to hear from the (judge),” Brewer said.
The point of the lawsuit, Brewer said, is to put pressure on the federal government to secure the border and ease the burden that illegal immigration is putting on Arizona.
“The bottom line is we are going to keep that pressure on the federal government to do the job that they are supposed to be doing,” she said. “I want the federal government to do their job. I want them to secure our borders. I want them to reimburse us for the costs of incarcerating illegal immigrants. I want them to do everything that needs to be done as far as the invasion, if you will, that’s taking place across our border from Mexico.”