Arizona Daily Star
July 29, 2011
PHOENIX - A federal judge said Thursday that there appears to be no legal basis for a request that she order the Obama administration to do more to protect the border.
U.S. District Judge Susan Bolton noted that the state wants her to rule the federal government is failing in its mandate to protect the country from "invasion," based on the contention that Arizona and the United States are effectively being invaded by large numbers of illegal immigrants.
But the judge pointed out that the 9th U.S. Circuit Court of Appeals specifically rejected an identical argument presented by California 14 years ago.
Bolton also said Assistant Attorney General Michael 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, which are actually 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 afterward that she remains hopeful Bolton will allow the state to pursue its claims, despite the judge's comments.
"We know it's an uphill battle," Brewer said.
"I understand there was a precedent set," the governor said of the 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 exist at the time - to gain "operational control" of the border.
Bolton did not appear to buy that argument.
She said the 9th Circuit has ruled 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 set that only as a goal, leaving it up to Homeland Security Secretary Janet Napolitano to determine exactly how to achieve it.
"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 that 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.
That means Arizona cannot seek a court order demanding that Arizona get more miles of fence, Chilakamarri said. 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 springs from a federal law requiring the Justice Department to reimburse states for locking up people here illegally who have been convicted of violating state laws.
The law authorizes funding at $950 million a year. But the Obama administration has requested - and Congress has authorized - only a fraction of that amount. That amount is split among the states based on the number of inmates.
Bolton told Tryon that judges cannot tell the Justice Department how to divide up its money. Tryon, however, said the formula amounts to an "abuse of discretion" by the agency, something that is within the judge's power.