Going on the offensive, Arizona sued the federal government on Thursday, charging it has failed to meet its legal responsibility to secure the border.
The move comes in the form of a counterclaim to the original lawsuit filed last year by the Obama administration challenging enactment of SB 1070. Attorneys from the Department of Justice charged Arizona was illegally infringing on the exclusive right of the federal government to control immigration.
Gov. Jan Brewer said if the federal government believes what it is claiming, then it has a responsibility to do the job itself.
The lawsuit is based on more than that general legal theory.
Attorney General Tom Horne said a 2008 law requires the Department of Homeland Security to "achieve and maintain operational control for the Arizona-Mexico border." He said it also requires construction of 700 miles of reinforced fence and installation of other barriers, roads, lighting, cameras and sensors.
On a broader level, Horne said the U.S. Constitution requires the federal government to protect Arizona against "invasion."
"The word ‘invasion' does not necessarily mean invasion of one country by another country, but can mean large numbers of illegal immigrants from various countries," he said.
And on a more practical level, Horne said the Department of Justice has not met its requirement to reimburse states for the cost of incarcerating illegal immigrants who are serving time in state prisons for violating state laws.
"Arizona is unable to bear the staggering cost of protecting itself," he said. "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."
Horne conceded there is no precedent for any state winning such a lawsuit. In fact, he said the 9th Circuit Court of Appeals rejected a similar claim 14 years ago.
But Horne argued that "conditions have changed since then."
He said that the problem is much greater and the percentage of illegal immigrants with criminal records is much larger. Horne also said that the Sept. 11, 2001 attacks show that failure to secure the border has a "national security aspect."
Finally, he said the federal laws requiring the federal government to secure the border had not been passed at that time.
A White House spokesman referred all calls to the Department of Justice, which would not comment on the filing.
Brewer said the Obama administration should not be surprised.
"We did not want this fight, we did not start this fight," the governor said. "But now that we are in it, Arizona will not rest until our border is secure and federal immigration laws are enforced."
Both Horne and Brewer said they anticipate having to take the fight all the way to the U.S. Supreme Court.
But the governor said only minimal state funds will be involved, what with about $3.7 million already contributed to a fund she set up last year to defend the lawsuits challenging SB 1070. Brewer said only about $1.3 million of that has been spent so far.
Those donations, however, are covering only the cost of the outside counsel hired by Brewer to defend SB 1070. Horne said it will not cover any costs by his office, saying he and the senior counsel handling the issue "would be there anyway, so there's no additional cost."
Brewer said while the costs will rise above the amount already raised she expects to be able to get more donations.
At the heart of the battle is SB 1070.
Enacted last year, it requires a police officer to make a reasonable attempt to check the immigration status of those they have stopped. It also bars police from releasing anyone arrested until they have determined that person's immigration status.
Other provisions include:
• Making it a violation of Arizona law for anyone who is not a citizen to fail to carry documentation;
• Creating a new state crime for trying to secure work while not a legal resident;
• Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States;
• Making it a crime to stop a vehicle in traffic to hire a day laborer or for someone looking for work to get into a stopped vehicle;
• Requiring state officials to work with the federal government regarding illegal immigrants;
• Allowing Arizona residents to file suit against any agency, official, city or county for adopting policies that restrict the ability of workers to enforce federal immigration law "to less than the full extent permitted by federal law."
Several lawsuits were filed challenging various provisions.
Last July, U.S. District Court Judge Susan Bolton, ruling in the lawsuit filed by the Obama administration, enjoined the state from enforcing several key provisions.
Bolton said attorneys from the Department of Justice showed they are likely to prevail on the illegality of four key sections when the case finally goes to trial. She also accepted the argument that the United States government "is likely to suffer irreparable harm" if those four disputed sections were allowed to take effect.
There has been no ruling yet on a request by the state to the 9th Circuit to overturn the injunction.