Judge vets Arizona claim for more border protection
PHOENIX — A federal judge said Thursday there appears to be no legal basis for a request that she order the Obama administration to do more to protect the border.
Judge Susan Bolton noted that the state wants her to rule that the federal government is failing in its mandate to protect the country from “invasion.” That is based on the contention that Arizona — and the United States — is effectively being invaded by large numbers of illegal immigrants.
But the judge pointed out that the 9th Circuit Court of Appeals specifically rejected an identical argument presented by California 14 years ago. Assistant Attorney General Michael Tryon conceded the point, saying his bid to get Bolton to ignore that case is “problematic.”
“Problematic is a very diplomatic way to put it,” Bolton responded. “I think it’s impossible. It’s something that I’m bound by.”
Bolton also said Tryon may be on no more legally secure footing in a separate contention that the federal government is breaking its own law by refusing to fully reimburse Arizona for the cost of incarcerating illegal immigrants who have violated state laws. Instead, Arizona — and other states with similar costs — get what Tryon called “pennies on the dollar.”
“Everyone is getting pennies on the dollar,” Bolton responded, noting that Congress has never appropriated enough money to cover all of the costs of all of the states. “I don’t have the authority to tell Congress to give the Department of Justice more money.”
Thursday’s hearing was on a request by the Obama administration that Bolton throw out the claims the state filed against the federal government earlier this year. These actually are counterclaims to the decision by the administration to challenge the key provisions of SB 1070, last year’s far-reaching measure designed to give state and local police more power to detain and arrest illegal immigrants.
Bolton has so far sided with the federal government on much of that original lawsuit, enjoining the state from enforcing key provisions of the law until there can be a full trial on the merits. And that is unlikely to occur before next year.
Gov. Jan Brewer, who attended Thursday’s hearing, said afterwards she remains hopeful, despite Bolton’s comments, that the judge will allow the state to pursue its claims.
“We know it’s an uphill battle,” Brewer said.
“I understand there was a precedent set,” the governor continued, referring to that 14-year-old appellate court ruling. But Brewer said “things have changed” since then.
Tryon tried the same argument in court. For example, he said, Congress has since passed a law requiring the Department of Homeland Security — which did not even exist at the time — to gain “operational control” of the border.
Bolton did not appear to be buying that argument. She said the 9th Circuit already has ruled that the requirement of the federal government to protect its citizens from invasion refers only to actions by a foreign power.
Varu Chilakamarri, an assistant U.S. attorney general, agreed that federal law does require Homeland Security to achieve “operational control” of the border. But she said Congress only set that as a goal, leaving it up to Homeland Security Secretary Janet Napolitano to determine exactly how to achieve that.
“She is the only one who has an eye across the entire border,” Chilakamarri said.
Similarly, Chilakamarri said there is no basis for the state to demand that Homeland Security build more miles of fence along the Arizona-Mexico border.
She said while Congress directed the agency to build 700 miles of fence, lawmakers provided no deadline. And Chilakamarri said Congress left it up to Napolitano to decide where to put that along the nearly 2,000 mile international border.
What that means, Chilakamarri said, is Arizona cannot seek a court order demanding more miles of fence. At this point, she said, 649 miles have been constructed, with more than 300 miles of that in Arizona.
The state’s claim over its prison costs is another matter.
Federal law requires the U.S. Department of Justice to reimburse states for the costs of locking up people in this country illegally who have been convicted of violating state laws.
The law sets authorized funding at $950 million a year. But the Obama administration has requested — and Congress has authorized — only a fraction of that amount.
Based on that, the Department of Justice divides up what it gets among the states based on the number of inmates.
Tryon told Bolton Arizona is unhappy not only because there isn’t enough money overall but also because the state believes the formula used to allocate the funds does not take all of the costs into account.
Bolton, however, told Tryon that judges cannot tell the Department of Justice how to divide up its cash. Tryon, however, said the formula amounts to an “abuse of discretion” by the federal agency, something that is within the judge’s power.
Brewer already is thinking about the next move if Bolton rules against the state, promising to take both the question of the state’s right to enforce SB 1070 and the state’s claim against the federal government to the U.S. Supreme Court if necessary.
“We didn’t ask simply for this fight. The federal government sued us by trying to prohibit Arizona from enforcing SB 1070.”
And Brewer said the lawsuit is only one avenue for the state to “keep that pressure on the federal government to do the job that they are supposed to be doing, that they are not doing, and that the residents of Arizona are paying the price for.”