Thread: Gov. Jan Brewer's border security countersuit stumbling

Gov. Jan Brewer's border security countersuit stumbling

Dismissal likely for state's immigration case vs. U.S.

by Alia Beard Rau - Jul. 29, 2011 12:00 AM
The Arizona Republic

A federal countersuit filed by Gov. Jan Brewer alleging that the federal government is failing to secure the border from an "invasion" appears to be on shaky ground.

The suit, which was filed in connection with the federal suit over Senate Bill 1070, got its first day in court Thursday as attorneys for the state defended it from a U.S. Department of Justice motion to dismiss.

U.S. District Judge Susan Bolton will issue a ruling at a later date, but she made it clear she was leaning toward dismissing at least some of the state's allegations.

Precedent from previous higher-court rulings in similar cases may demand it, she said.

Brewer said she knew the countersuit would be an uphill battle, adding that the Arizona courtroom is only the first stop.

"We'll take it all the way to the (U.S.) Supreme Court," she said. "We didn't ask for this fight. The federal government sued us to prohibit us from enforcing (SB) 1070, and we will continue to fight."

The countersuit, filed in February, alleges that the federal government has failed to gain "operational control" of the border, is not enforcing federal immigration law, has not adequately reimbursed Arizona for more than $760 million in costs for the state to incarcerate illegal immigrants and tried to pre-empt the state from protecting its citizens by filing a lawsuit to halt the enactment of SB 1070.

What state is requesting

The state is asking the court to require the federal government to finish building 700 miles of fence along the U.S. border with Mexico, provide enough federal immigration officers in Arizona to respond to local law-enforcement needs, change the way the federal government reimburses states for incarcerating criminal illegal immigrants and allow Arizona to enforce federal immigration laws.

About half a dozen other states have pursued similar, and unsuccessful, legal efforts over the past two decades.

In 1994, Arizona was one of seven states that sought reimbursement for the costs of incarcerating and providing other services to illegal immigrants. Later that year, President Bill Clinton signed a bill that ordered the U.S. attorney general to reimburse states for prison costs or transfer inmates to federal prisons.

In 1996, California Gov. Pete Wilson filed suit, arguing that Clinton and the federal government had failed to live up to the provisions of the law. The suit was dismissed.

In 2006, Colorado voters passed Referendum K, which ordered that state's attorney general to file a broader claim against the federal government, saying it failed to enforce immigration laws. That suit was thrown out by a federal judge in 2007.

Court proceedings

Thursday's hourlong court hearing focused primarily on two issues: whether Bolton should overturn prior court precedent and whether she has the authority to tell the federal government how to spend its money.

Department of Justice attorney Varu Chilakamarri argued that the U.S. Court of Appeals for the 9th Circuit ruled more than a decade ago in both the Arizona and California lawsuits that the same arguments Arizona is again making now have no legal standing.

The state's attorney, Mike Tryon, said that a lot has changed since those Appeals Court rulings, including the creation of the Department of Homeland Security and the federal lawsuit challenging SB 1070. Although he called the earlier precedents "problematic," he said "circumstances in the law have changed dramatically."

Bolton indicated she was leading toward Chilakamarri's argument, saying she is "bound by" precedents set by higher courts.

With the state's allegation that the federal government is not properly reimbursing the state for incarceration, Tryon said the state isn't asking for money, but for recognition that the formula is unfair.

"The state of Arizona is forced to pay these costs incurred because the federal government has not achieved operational control (of the border)," Tryon said. "All we're seeking is a declaration of the rights of Arizona."

Chilakamarri argued that the U.S. attorney general has the discretion to determine the formula.

Bolton said there's no argument the federal government owes Arizona "many, many millions of dollars" in incarceration costs. But she questioned her authority to do something about it.

"Do I have the power to tell Congress to appropriate money?" Bolton asked. "If I did, there would be a long list of priorities."

What's next

If Bolton dismisses the countersuit, Brewer said the state likely will appeal to the higher courts.

While Bolton is limited in overturning a prior higher-court ruling, the Appeals Court could overturn its own ruling. And if the Appeals Court declines to do so, the U.S. Supreme Court could.

Brewer said her countersuit is not about political retribution for the federal government filing the original challenge against SB 1070, which has resulted in the courts halting several key parts of the law from going into effect.

She said it's about holding the federal government responsible.

"I want them to secure the border. I want them to reimburse us to incarcerate illegal immigrants," she said. "We want the federal government to do their job."

The preliminary injunction issued in the original SB 1070 lawsuit also may be headed to the Supreme Court along a separate track.

In April, the 9th Circuit upheld Bolton's injunction, which last July halted parts of SB 1070 from going into effect. Brewer's office is in the process of filing court documents asking the U.S. Supreme Court to overturn the injunction.

And in the meantime, the underlying case - as well as a federal lawsuit filed by the American Civil Liberties Union of Arizona and several other organizations on behalf of a number of individuals and non-profit groups - continues to move slowly through the court process. The next major step for both likely will be oral arguments before Bolton.

No dates have yet been set for that.

Brewer had spent more than $2 million in donated funds on SB 1070-related legal fees through the end of April, according to her spokesman, Matthew Benson.

The governor's Legal Defense Fund has received more than 45,000 mail and Internet donations since its launch. Minus the expenditures, the fund has a balance of just more than $1.77 million.

http://www.lcsun-news.com/ci_18576128

U.S. District Judge Susan Bolton will issue a ruling at a later date, but she made it clear she was leaning toward dismissing at least some of the state's allegations

Isn't she the same judge that has been bucking the State of Arizona since this all started and sided with the Feds
?

Originally Posted by uniteasone

U.S. District Judge Susan Bolton will issue a ruling at a later date, but she made it clear she was leaning toward dismissing at least some of the state's allegations

Isn't she the same judge that has been bucking the State of Arizona since this all started and sided with the Feds
?

One and the same... liberal appointee by Clinton

"We'll take it all the way to the (U.S.) Supreme Court," she said. "We didn't ask for this fight. The federal government sued us to prohibit us from enforcing (SB) 1070, and we will continue to fight."

That a girl! Go get 'em!!!!!

Why even bother with Bolton? What a waste of time and funds on this libtard judge. AGAIN! The deck is so stacked against the rule of law when it comes to Illegal Aliens.....It is all just one BIG conflict of interest after another with liberal judiciaries and NOT the LAW, SAFETY, or Economic Recourses of America or her citizens!