Arizona to Fed: “You sue me and I’ll sue you. Criss-cross”

Posted by: Phineas on February 11, 2011 at 1:01 pm

**Posted by Phineas

Last year, the federal government filed suit against the state of Arizona to block enforcement of Arizona’s controversial* SB 1070 bill, that required Arizona law enforcement to enforce federal immigration law, since Washington apparently refused to do so itself.

Now Arizona Governor Jan Brewer has fired back, suing Washington for failing to protect Arizona from invasion:

Arizona Governor Janice Brewer, in a filing today in federal court in Phoenix, accuses the U.S. government of failing to maintain operational control of the state’s border with Mexico, failing to protect it from invasion and violence and failing to enforce federal immigration laws.

“The federal government has effectively conceded its inability to protect Arizona and its citizens from criminal activities associated with illegal aliens,” Brewer said in the filing. “Within the last year, the federal government placed warning signs in the desert 80 miles north of the border and only 30 miles south of Phoenix warning people to stay away from the area.”

I believe Brewer is relying on Article 4, Section 4 of the US Constitution:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Emphasis added.

Arizona has at least an arguable case, since the warning signs can be colored as refusal to defend a state’s territory and perhaps even a renunciation of sovereignty in those places. (Hey, if the government is telling citizens it cannot protect them on American soil, is it still American soil?)

On the other hand, an originalist interpretation of the relevant clause would probably** find that the Founders meant invasion by an army wielded by another sovereign power, and hence did not apply in this case. While the border problem is serious, the cartels are not sovereign powers (yet).

On the other-other hand, the 18th-century authors had experience of war on their frontiers with the Indian tribes — though they were treated as sovereign nations for legal purposes, so, forget that. Maybe a better originalist argument in favor of Arizona’s suit would be piracy, which colonies-turned-states had plenty of experience with. Surely the governors back then would have demanded federal help if pirates were raiding their coasts.

So, it’s a dicey proposition. Emotionally, I’m sick of the Fed not doing the things it is supposed to do, while refusing to do the jobs it’s charged with — such as border control. But, my gut feeling is that a judge will rule against the state. We’ll see.

*To open-border advocates, the ethnic grievance industry, and those they sucker

**In other words, I’m making a wild-arsed guess.

(Crossposted at Public Secrets)

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  1. camojack says:

    The way I hear it, turnabout is fair play…