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Judge unimpressed with state’s arguments in SB1070 countersuit

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.

U.S. District Judge Susan Bolton. (AP Photo/KSAZ-TV FOX 10)

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.”


  1. A MESSAGE TO THE WORLD: Don’t bother applying at the American embassy and having your background checked, or your physical and mental abilities checked or waiting on line, just come here by any means necessary and as soon as you get in the country, you will be treated as a legal resident, nothing will happen to you. You will be able to work. You will be able to break our laws and not be deported. You can falsify documents and lie on federal applications by indicating that you are an American Citizen, and instead of receiving consequences, in fact you will be celebrated. You will be able to go to our schools and be educated. If you get sick, we will take care of you and have lots and lots of children, we will give you financial aids, since those kids will be American citizens. And the most important part of all, we have a Democratic party that actually support your lawlessness and will protect you. SO COME TO AMERICA, COME TODAY, WE’VE BECOME AN ANARCHY STATE.

  2. Those in Washington who are discussing discretionary spending and the debt ceiling and are already planning cutting funds from National Parks and National Monuments. Thousands of Post offices are on the condemned list and states are in an equal dilemma, having to cut-back on their State parks and recreation areas and many other agencies. The post 1986 Immigration Control or Reform Act, a bloody job killing amnesty, is still resonating today and will in our future years. And now the illegal immigration has spread like a virus, so we must congratulate Legislators who cleverly placed the blind fold over America’s eyes, completely ignoring the nightmare that was to come for us all. Millions of those itinerant foreigners began the Chain Migration horror that taxpayers are now paying for.When (Fair) analyzed the cost of illegal immigration and its nationwide deficit, they came up with a stunning figure of $113 billion dollars annually, while illegal alien revenue to the government coffers was a total amount of $13Billion dollars and change.


    Not included in these illegal foreign labor is wages leaving the country to foreign nations, estimated to be 46 Billion dollars.Our economy is sinking and the Obama administration is insisting on passage of another Amnesty failure. Heritage Foundation has stated that cost for processing , Social Security will have an expenditure of 2.5 Trillion dollars, when we are still arguing in Congress on raising our debt ceiling. Say NO to any Immigration Reform, that generates CHAIN MIGRATIONS. Say No to Sanctuary States and cities. Say No to the Dream Act, that will be another avenue of Chain Migration.

    This grading of the Presidential Hopefuls is based entirely on their immigration positions. We know that voters support candidates based on any number of policy positions and personal attributes.

    Currently, this is how the Hopefuls rate on immigration policy (from worst to mediocre best):

    F-minus: Barack Obama
    F: Ron Paul
    F: Gary Johnson
    F: Rick Santorum
    D-minus: Newt Gingrich
    D-minus: Jon Huntsman
    D-minus: Rick Perry
    D: Sarah Palin
    D: Mitt Romney
    C-minus: Herman Cain
    C+: Tim Pawlenty
    B-minus: Michele Bachmann

    If you want the President of the United States to work for immigration policies that are good for Americans, you need to pressure the Hopefuls on this list to come up with much better platforms than they now have.
    Attn: Be observant in the forthcoming elections, as immigrants and illegal aliens are voting. This is “Only” a citizens right! Go to NumbersUSA for the details.

  3. Pedro, I took your advice and snuck in across the AZ border. I had to carry some drugs to pay for the ride but this sounds so exciting. Can I steal someones identity and work? I really don’t want to pay taxes but maybe I’ll have to pay a little bit, no? Can I run for President even though I am illegal because Obama did? I am looking for a job now but it sure seems easier to steal from the Americans. I applied for welfare and food stamps in 3 counties today so we will be having a big fiesta! You are invited, Pedro!

  4. “The point of the lawsuit,” Governor, is to generate legal fees for the anti-immigrant legal groups so they can generate more business elsewhere. If you are not looking for remedies, then you are cravenly engaged in a frivilous lawsuit.

  5. Joe (Not the Sheriff)

    Wake up. You are a pawn.

    This is about private prisons, trying to make as much money as possible.

    That’s why those of us who lived in AZ for more than 2 decades, were shocked when we woke up one day to hear that people were being beheaded and crime was out of control (when in fact it was down, in large numbers)

    Go look at all 36 co-sponsors of this legislation (which virtually no bill ever receives that many) and look at who gave them campaign funds. But you won’t. It’s easier just to be mad and scapegoat the Mexicans. The good news is for Mexico. With Arizona farmers unable to find people to hire to pick their produce, the farms will move south to Mexico.

    And may I add, if they are sooooo dependent on handouts from the government, why is it i have never seen a Mexican on the street begging for money? Instead I see them begging for work. What could be more American?


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