State's immigration suit likely futile
Judge may dismiss attempt to make feds enforce laws

By Sara Burnett, Rocky Mountain News
September 15, 2007

Colorado's attempt to sue the federal government to demand it enforce federal immigration laws could meet its demise as soon as next week.

U.S. District Judge Lewis T. Babcock is scheduled to hear arguments Thursday on the federal government's motion to dismiss the lawsuit.

The suit was filed earlier this year at the request of Colorado voters.

About 56 percent of voters cast "yes" ballots last November on Referendum K, which directed the state attorney general to file the lawsuit "to demand the enforcement of all existing federal immigration laws by the federal government."

Similar suits have been thrown out in six other states, and even the man who filed the case - Colorado Attorney General John Suthers - has repeatedly said it's an exercise in futility.

He believes the issue is better pursued through congressional action.

"The attorney general thought it was going to be a waste of money," Nate Strauch, a spokesman for Suthers, said Friday. "Because the will of the voters said yes, he has filed it."

So far, the case has cost the state roughly $46,000, Strauch said. The legislature appropriated that money last year. If the lawsuit is not thrown out, the cost is anticipated to reach $190,000.

According to a report by Suthers' office, Coloradans spend millions each year to enforce federal immigration law.

In 2005, for example, the state Department of Corrections estimated it spent $36 million to house illegal immigrants. That same year, the federal government reimbursed the state $2.3 million for incarceration costs, according to the report.

The lawsuit, filed in March, names former U.S. Attorney General Alberto Gonzales, Director of Homeland Security Michael Chertoff and the U.S. as defendants.

It claims the federal government is not meeting its constitutional obligation "to protect each of the states from invasion." It notes that the terrorists who attacked the U.S. on Sept. 11, 2001, appear to have violated immigration law, either by overstaying their visas or using altered documents to get visas.

The lawsuit also claims that the federal government hasn't added all of the new border patrol agents, Department of Homeland Security investigators and detention center beds required by the Intelligence Reform and Terrorism Prevention Act of 2004.

In its motion to dismiss, the federal government said the lawsuit has "no legal merit."

The courts don't have jurisdiction over the issue, the U.S. attorney's office argued. They also said the illegal migration of people across the U.S. border isn't an "invasion" as described in the Constitution.

Among the other legal arguments are that the hiring of new border agents and investigators is "subject to the availability of appropriations," and that states do not have legal standing to file lawsuits against the federal government on behalf of their residents.

The motion also states that the government has made efforts to strengthen enforcement. In 2006, Immigration and Customs Enforcement set a record, removing 186,000 illegal immigrants - a 10 percent increase over the previous fiscal year.

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