Arizona Daily Star
October 22, 2011
PHOENIX - Arizona has no legal right to sue the federal government for failing to secure the border, a federal judge ruled Friday.
Judge Susan Bolton acknowledged federal law directs the Department of Homeland Security to achieve "operational control" of the border. A separate law requires construction of at least 700 miles of fencing.
But the judge said those are only goals, and Congress set no deadline for when the fence needs to be completed. Bolton said that means Arizona cannot seek - and she cannot grant - an order for the federal government to do something.
Bolton also rejected the state's claim the federal government, in failing to secure the border, was somehow hijacking state funds. That is based on the state's contention it is forced to spend money to educate, provide medical care for and in some cases incarcerate illegal immigrants.
The judge said, though, nothing the federal government is or is not doing requires the state to take any action. "The complained-of expenditures arise entirely from Arizona's own policy choices and independent constitutional obligations and are not incurred as a result of any federal mandate," Bolton wrote.
And Bolton made quick work of some of the state's other claims, including one contending the government is violating the federal Constitution by failing to protect the country from "an invasion of undocumented aliens."
She pointed out a federal appellate court rejected precisely the same arguments more than a decade ago and spurned arguments by Attorney General Tom Horne that the border situation has gotten worse since then, allowing Arizona to renew its bid.
Horne said Bolton's ruling comes as no surprise, particularly with Bolton, as a trial judge, powerless to overturn the earlier appellate ruling.
Horne vowed to take the issue back to the 9th U.S. Circuit Court of Appeals to try to persuade the judges to reconsider their 1995 ruling and allow the state to force the government to do more to keep out those crossing the border illegally.
That will be the state's second appeal of a Bolton decision on the issue.
Arizona's legal bid is actually a counterclaim to the lawsuit filed last year by the Obama administration challenging the legality of SB 1070.
The counterclaim is based on Horne's contention that Congress gave the Department of Homeland Security a specific order to "achieve and maintain operational control for the Arizona-Mexico border."
Bolton, in Friday's ruling, said that is true. But she also said that does not give Arizona any right to sue.
"The act creates an objective and leaves the DHS and the (homeland security) secretary with a great deal of discretion in deciding how to achieve it," she wrote.
Nor was Bolton convinced that Arizona could demand she order fencing.
"No deadline mandates completion of the fencing and infrastructure development or any required discrete action by a specific time," the judge wrote of that federal law. And Bolton said the law gives Homeland Security "substantial discretion in determining where to build fencing, where to use alternative infrastructure improvements rather than fencing, and how best to develop a comprehensive program to prevent illegal immigration."
Bolton also rejected a separate claim that the Department of Justice owes hundreds of millions of dollars to Arizona to pay for the cost of incarcerating illegal immigrants who have violated state laws.
She said the State Criminal Alien Assistance Program does allow the federal government to reimburse the states for their costs. But she also pointed out that Congress has not appropriated enough to fully cover the cost of the program for years, leaving it up to the Department of Justice to decide how to divide the available cash. Bolton said that decision is "explicitly committed" to the discretion of Attorney General Eric Holder.
Gov. Jan Brewer issued a statement of her disappointment:
"It is but the latest chapter in a story that Arizonans know all too well: The federal government ignores its constitutional and statutory duty to secure the border. Federal courts avert their eyes. American citizens pay the price."