FOR IMMEDIATE RELEASE
CONTACT: Matthew Benson
February 10, 2011
With today's filing, Arizona both answered the merits of the Obama administration's lawsuit regarding SB1070 and submitted a counterclaim against the federal government.
“Our message for the federal government is simple: Use federal resources to combat the cartels that are breaking federal law,” said Governor Brewer. “Don't attack Arizona, which is helping to enforce federal law.”
Arizona's counterclaim is based on five simple points. The federal government has: failed to gain “operational control of the border,” as required under the Secure Fence Act of 2006; failed to enforce multiple federal immigration laws; failed to protect Arizona from economic harms and violence associated with illegal immigration, as mandated by the Constitution; been negligent in not reimbursing Arizona for more than $760 million in combined costs for the incarceration of illegal aliens under the State Criminal Alien Assistance Program; and has sought to pre-empt Arizona from its constitutional right and duty to protect the health, safety and welfare of its own citizens.
“While control of the border is a federal responsibility, illegal aliens who successfully cross the border and commit crime in Arizona become an Arizona responsibility,” said Attorney General Horne. “By not doing its job, and using its alleged 'pre-emption' rights to stop Arizona from performing its law enforcement obligations, the United States is violating Arizona's 10th Amendment rights.”
Despite recent federal claims that our nation's southern border is more secure than ever, residents of the region remain victims of drug and human smuggling, as well as the ever-present threat of cartel violence spilling over from the south.
“Our citizens have lived with this dark cloud for too long,” said Governor Brewer. “It‟s time for the federal government to do its job and secure the border.”
February 10, 2011
Arizona Files Suit
Against Federal Government Over Failure to Secure the Border, Protect
Our Citizens
Gov. Brewer: “We did
not want this fight. We did not start this fight. But now that we’re in
it, we will not rest until our border is secured.”
PHOENIX ― Arizona Governor Jan Brewer and Attorney General Tom Horne
today filed suit against the federal government due to its
constitutional failure to secure the border and protect Arizona
citizens against the negative effects of illegal immigration.With today's filing, Arizona both answered the merits of the Obama administration's lawsuit regarding SB1070 and submitted a counterclaim against the federal government.
“Our message for the federal government is simple: Use federal resources to combat the cartels that are breaking federal law,” said Governor Brewer. “Don't attack Arizona, which is helping to enforce federal law.”
Arizona's counterclaim is based on five simple points. The federal government has: failed to gain “operational control of the border,” as required under the Secure Fence Act of 2006; failed to enforce multiple federal immigration laws; failed to protect Arizona from economic harms and violence associated with illegal immigration, as mandated by the Constitution; been negligent in not reimbursing Arizona for more than $760 million in combined costs for the incarceration of illegal aliens under the State Criminal Alien Assistance Program; and has sought to pre-empt Arizona from its constitutional right and duty to protect the health, safety and welfare of its own citizens.
“While control of the border is a federal responsibility, illegal aliens who successfully cross the border and commit crime in Arizona become an Arizona responsibility,” said Attorney General Horne. “By not doing its job, and using its alleged 'pre-emption' rights to stop Arizona from performing its law enforcement obligations, the United States is violating Arizona's 10th Amendment rights.”
Despite recent federal claims that our nation's southern border is more secure than ever, residents of the region remain victims of drug and human smuggling, as well as the ever-present threat of cartel violence spilling over from the south.
“Our citizens have lived with this dark cloud for too long,” said Governor Brewer. “It‟s time for the federal government to do its job and secure the border.”
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2/10/11
Congress established the State Criminal Alien Assistance Program, 8 U.S.C. §1231(i) [SCAAP] to compensate states for the substantial economic burdens they have suffered as a result of the federal government’s failure to incarcerate or deport criminal aliens. SCAAP provides that upon written request by a Governor, the Attorney General shall either enter into an arrangement to compensate the State for incarcerating undocumented and criminal aliens, or federally incarcerate them. SCAAP also states that compensation to the State “shall be the average cost of incarceration of a prisoner in the relevant State as determined by the Attorney General.” For 2009, the last reporting year, the amount allocated to Arizona was $9.7 million, or 1/14th the amount Arizona actually spent to incarcerate qualifying illegal and criminal aliens: $135 million. [The Department of Justice allocated $62 million (compared to Arizona’s $9.7 million) to jurisdictions where the sanctuary policies, which violate the express terms of 8 U.S.C. §§1373 and 1644. The City of Los Angeles received 50% more than the entire State of Arizona, even though it has forbidden sanctuary policies.] Count Four seeks, among other things, an order requiring the Attorney General to compensate Arizona for the actual cost it incurs in incarcerating qualifying illegal criminal aliens.
OFFICE
OF ARIZONA ATTORNEY GENERAL
SUMMARY OF
COUNTERCLAIM 2/10/11
I.
Count One - Failure to Achieve and
Maintain Operational Control of the Arizona/Mexico Border.
The Secure Fence Act and the
Appropriations Act of 2008 required Department of Homeland Security
(“DHS”) to achieve and maintain operational control for the
Arizona/Mexico border. The Secure Fence Act of 2006 defines operational
control as “the prevention of all unlawful entries into the United
States, including entries by terrorists, other unlawful aliens,
instruments of terrorism, narcotics, and other contraband.” The
Appropriations Act of 2008 required the construction of at least 700
miles of reinforced fencing and the installation of additional
“physical barriers, roads, lighting, cameras, and sensors to gain
operation control of the southwest border.” The Appropriations Act of
2010 required creation of a plan “for a program to establish and
maintain a security barrier along the borders of the United States,
with fencing and vehicle barriers where practical, and other forms of
tactical infrastructure and technology . . .” The Secretary of DHS has
not taken all necessary and appropriate actions to achieve and maintain
operational control of the southwest border, as required by the Secured
Fence Act and the Appropriations Act of 2008. The Secretary has not
built at least 700 miles of fence along the border as required. The
Secretary has targeted the construction of less than 700 miles of
fence. The Secretary has failed to provide for the installation of
additional physical barriers, roads, lighting, cameras, and sensors to
achieve and maintain “operational control.” Count One seeks a
declaration that the DHS and the secretary have failed to take all
actions necessary and appropriate to achieve and maintain “operational
control,” that they are in violation of the Secured Fence Act of 2006
and the Appropriations Act of 2008, and it seeks injunctive declaratory
and mandamus relief that the United States, the DHS and the Secretary
comply with those acts.
II.
Count Two – Failure to
Protect Arizona as the U.S. Constitution Requires.
The United States Constitution, Article
4, Section 4, requires the United States to protect Arizona against
invasion and domestic violence. The word “invasion” does not
necessarily mean invasion of one country by another, but can mean large
numbers of illegal immigrants from various countries.
The constitutional obligation to protect Arizona from this type of
invasion is further clarified in the congressional requirement that the
federal government acquire operational control over the border, and the
statutory requirement that the Secretary “shall have the power and duty
to control and guard the boundaries and borders of the United States
against the illegal entry of aliens. 8 U.S.C. §1103(A)(5). Arizona
is unable to bear the staggering cost of protecting itself, and even if
it could, the federal government has argued that Arizona is preempted
from taking action to assist in the enforcement of federal immigration
law. A similar claim was rejected 14 years ago by the Ninth Circuit.
Conditions have since changed in: (1) the scope of the problem; (2) the
percentage of illegal aliens with criminal records, which has more than
doubled since 2005; (3) the national security aspect of the problem
which has become evident since 9/11; (4) the statutory charges in the
last 14 years. We are asking for a second look by the Ninth Circuit, or
a first look by the U.S. Supreme Court. Count Two seeks a declaration
that counter-defendants have failed to protect Arizona from invasion of
illegal aliens as required by Article 4, Section 4, and failed to
protect it from domestic violence arising out of the criminal activity
of aliens unlawfully present in the United States, and for injunctive
declaratory and mandamus relief that the federal government create and
implement priorities and enforcement policies that will meet these
constitutional requirements, until the border is under “effective
control.” III.
Count Three – Failure
to Enforce/Follow Immigration Laws.
Paragraph 8, U.S.C. §1373 requires
ICE to respond to any lawful inquiry from any state or local government
regarding citizenship or immigration status. The executive branch has
declared, including declarations made in this lawsuit, that it is to
determined to ignore the terms and conditions of its obligations under
8 U.S.C. §1373. In its efforts to prevent Arizona from making
inquiries regarding an individual’s immigration status, the federal
government has treated Arizona differently than it has treated other
states. The refusal to enforce provisions of the federal immigration
law has threatened national security and imposed a tremendous burden on
the states, in particular on Arizona. Counter- defendants are not
authorized to enforce only the immigration laws of which they approve,
and their declarations amount to an abdication of their statutory
responsibilities. Therefore, they are committing an abuse of
discretion. [Count Three seeks a declaration that the Secretary and the
Attorney General have abused their discretion by adopting priorities
that are contrary to express statutory mandates and that they are
violating the law by failure to enforce or follow immigration laws.]
IV.
Count Four –
Declaratory Relief Regarding Reimbursement Obligations.
Congress established the State Criminal Alien Assistance Program, 8 U.S.C. §1231(i) [SCAAP] to compensate states for the substantial economic burdens they have suffered as a result of the federal government’s failure to incarcerate or deport criminal aliens. SCAAP provides that upon written request by a Governor, the Attorney General shall either enter into an arrangement to compensate the State for incarcerating undocumented and criminal aliens, or federally incarcerate them. SCAAP also states that compensation to the State “shall be the average cost of incarceration of a prisoner in the relevant State as determined by the Attorney General.” For 2009, the last reporting year, the amount allocated to Arizona was $9.7 million, or 1/14th the amount Arizona actually spent to incarcerate qualifying illegal and criminal aliens: $135 million. [The Department of Justice allocated $62 million (compared to Arizona’s $9.7 million) to jurisdictions where the sanctuary policies, which violate the express terms of 8 U.S.C. §§1373 and 1644. The City of Los Angeles received 50% more than the entire State of Arizona, even though it has forbidden sanctuary policies.] Count Four seeks, among other things, an order requiring the Attorney General to compensate Arizona for the actual cost it incurs in incarcerating qualifying illegal criminal aliens.
V.
Count Five – 10th
Amendment.
The 10th Amendment provides that “the
powers not delegated to the United States by the constitution . . . are
reserved to the states respectively, or to the people.” While control
of the border is a federal responsibility, illegal aliens who
successfully cross the border and commit crimes in Arizona become an
Arizona responsibility. By not doing its job, and using its alleged
“preemption” rights to stop Arizona from performing its law enforcement
obligations, the United States is violating Arizona’s 10th Amendment
rights. Count Five seeks an injunction.
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