Attorneys for the Obama administration want a federal judge to rule that Arizona has no right to sue the government over what the state claims is the failure to secure the border.
Assistant Attorney General Tony West told U.S. District Court Judge Susan Bolton she has no legal authority to review the state's contention that Arizona is under invasion and that the federal government is not doing its job. He said issues of what the federal government is - and is not - doing to secure the border are "non-justiciable political questions."
"The regulation of immigration and control over the borders are matters firmly entrusted to the political branches" of the government, West argued in his legal briefs. "Similarly, protection of the United States from ‘invasion' implicates matters of foreign policy and defense which likewise are vested exclusive with the political branches."
More to the point, he said Congress gave federal agencies latitude in how to enforce immigration laws. And the decision of those agencies on how best to do it, West said, is not subject to judicial review.
"Arizona does not allege that the United States has failed to enforce immigration laws altogether, but merely alleges that the United States has chosen to enforce the immigration laws in a manner that Arizona believes is not what Congress intended," West wrote. He said even if that is true, it is a "legitimate exercise of discretion to allocate law enforcement resources and determine priorities."
Anyway, West told Bolton, there are practical problems with what Arizona is asking her to do.
"Even if a peacetime influx of immigrants could be considered an ‘invasion,' the Constitution provides no standard that would allow a federal court to determine either when the influx should be deemed an invasion or the adequacy of the federal government's response," he wrote.
West also said there is no basis for Arizona's claim that, if nothing else, the federal government owes the state money because of the costs incurred in dealing with illegal immigrants. State Attorney General Tom Horne, in filing the claim against the federal government in February, specifically sought reimbursement for the amount Arizona spends locking up illegal immigrants who have been convicted of committing state crimes.
The flaw in that, West argued, is that the federal government is not forcing Arizona to incur those costs. He said the state independently enacted a criminal code and decided who to prosecute.
The state's claim actually came in its formal response in February to the federal government's challenge of SB 1070.
The Obama administration contends the law designed to give police more power to detain and arrest suspected illegal immigrants, illegally infringes on the exclusive powers of the federal government. In that February response, the state not only disagreed with that contention but said Arizona is stepping in because the Department of Homeland Security is not complying with a law that requires it to "achieve and maintain operational control for the Arizona-Mexico border."
West countered that requirement is subject to the "sole discretion and expertise" of the agency and is not subject to judicial review.
Similarly, he said the same flaws exist in the state's claim that the government is not complying with a requirement to construct 700 miles of reinforced fence and install other barriers, roads, lighting, cameras and sensors.
The filing comes as the 9th U.S. Circuit Court of Appeals upheld an injunction Bolton issued last year barring the state from enforcing key provisions of SB 1070. She ruled - and the appellate judges agreed - that the Department of Justice was likely to succeed with its claims that the law is unconstitutional and that allowing Arizona to enforce the law would harm the legitimate interests of the federal government.
West said none of what is in the legal papers should come as a surprise to the state. He pointed out that the 9th Circuit rejected a similar claim alleging "invasion" 14 years ago.
Horne, however, has argued that "conditions have changed" since then, ranging from the increasing number of illegal immigrants with criminal records to new federal laws requiring the border be secured.
No date has been set for a trial on either the administration's challenge of the law or the state's counterclaim.