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Ariz. Governor, Citing ‘Self Defense,’|Sues Uncle Sam Over Immigration

PHOENIX (CN) - Gov. Jan Brewer has countersued the United States in Arizona's escalating legal war against Washington, claiming the Justice Department has "unclean hands" for failing to enforce immigration laws. Brewer sued in response to Justice Department's July 2010 lawsuit over Arizona's draconian immigration law, S.B. 1070, parts of which have been enjoined by a federal judge.

Though immigration policy and enforcement are a federal concern under the U.S. Constitution, Arizona's law requires local police to verify people's immigration status during a "lawful stop" if the state or local officer has "reasonable suspicion" that the person is in the United States without proper documents. It also would require immigrants to carry identification documents with them, and make it illegal for them to look for work in public.

In its lawsuit against Arizona, the Justice Department wrote that while "states may exercise their police power in a manner that has an incidental or indirect effect on aliens," they may not enforce their own immigration policy or laws that interfere with the U.S. Constitution's Supremacy Clause.

But Brewer claims: "The federal government has effectively conceded its inability to protect Arizona and its citizens from criminal activities associated with illegal aliens. For example, within the last year, the federal government placed warning signs 80 miles north of the Arizona-Mexico border "warning people to stay away from the area and to call 911 (i.e., Arizona's state and local law enforcement) if there were encounters with illegal aliens engaged in criminal activity in the area." (Parentheses in complaint.)

Brewer's claims that more than 40 percent of the people who enter the United States without proper documents enter through Arizona from Mexico.

She claims: "The federal government is not enforcing the immigration laws within the United States. The current policy of the Executive Branch of the United States government is to take no action regarding the vast majority of aliens who are unlawfully present in the country.

"Upon information and belief, the Executive Branch is currently working to pursue its own agenda, irrespective of Congress' intent, and attempting to achieve 'meaningful immigration reform absent legislative action.'

"The federal government's practice of non-enforcement of the immigration laws has caused the union representing 7,000 employees of the Immigration and Customs Enforcement ('ICE') to issue a unanimous vote of 'no confidence' in the leadership of ICE because ICE leadership has 'abandoned the Agency's core mission of enforcing United States Immigration Laws and providing for public safety.'

"The federal government refuses to reimburse Arizona for the staggering economic, social, and institutional costs and damages associated with illegal immigration in Arizona. To cite a single example, illegal aliens now occupy more than 14 percent of the state's prison population. These costs adversely affect the already extreme budget problems for Arizona, and the public health, safety, and welfare of Arizona and its citizens."

Brewer claims that Arizona is merely exercising its "right to self defense under the Constitution": "The United States' failure and refusal to protect Arizona leaves Arizona without meaningful defenses from illegal criminal aliens, terrorists, instruments and weapons of terrorism, environmental harm, drug and human smugglers, and crippling economic costs."

However, she adds, perhaps in a nod to foreign policy: "Arizona, by bringing this cause of action (or these counterclaims in general), expressly is not alleging that any foreign country, including the sovereign nation of Mexico, is invading the United States through or primarily through Arizona." (Parentheses in complaint.)

But, Brewer says, "the concept of "invasion" has changed since the drafting of the Constitution and in particular, the many national security threats that exist today are not the same threats that existed more than 200 years ago.

"The political nature of the individuals or organizations invading the country does not alter the import and significance of an actual or potential invasion from the perspective of a border state such as Arizona. ...

"(P)aramilitary bands, individuals with ties to criminal enterprises (including human smuggling enterprises and violent drug cartels), and individuals with ties to terrorist organizations are and may continue to invade the United States through the Arizona/Mexico border unless actions are taken to stop the illegal entries." (Parentheses in complaint.)

She adds: "Arizona has a right to self defense under the Constitution, particularly when the federal government fails to protect it."

Brewer claims that the Justice Department "should have brought this matter in the United States Supreme Court as it has original jurisdiction of lawsuits between the United States and an individual state under the Constitution."

She claims that Arizona "has taken all reasonable steps to obtain assistance from the federal government in addressing the harm that illegal immigration is causing to the health, safety, and welfare of Arizona's citizens."

On July 28, 2010, U.S. District Judge Susan Bolton enjoined enforcement of sections of SB 1070, including provisions that require state and local officers to check people's immigration status, that require immigrants to carry papers with them, and the prohibition of seeking work in public.

The 9th Circuit Court is considering whether to allow the provisions to take effect, after hearing of the state's appeal in November.

Brewer seeks declaratory judgments that clarify the constitutional and statutory obligations of the executive and legislative branches of the federal government "with respect to immigration and illegal aliens, and the rights of the various parties, including Arizona, with significant issues at stake."

She also seeks mandamus and injunctive relief to compel the federal government to take the necessary and appropriate actions to satisfy their constitutional and statutory obligations.

Defendants include the United States of America, DHS, the DOJ, U.S. Attorney General Eric H. Holder Jr. and Homeland Security Secretary Janet Napolitano, who preceded Brewer as governor of Arizona.

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