Razing Arizona: Gov. Jan Brewer Sues Federal Government

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With a budget deficit at $2 billion and draconian cuts at hand, Arizona officials this week decided to do something both drastic and ordinary to raise some cash: They sued deep pockets for goods, services, and money. That's right, on behalf of their beleaguered constituents, but ever true to their dubious views of constitutional authority, the increasingly litigious Governor Jan Brewer, and her attorney general Tom Horne, sued the United States of America for allegedly violating its duty to defend the Grand Canyon state from invasion. What, you didn't know that Arizona has been invaded? 

Arizona's new "official" talking points read like a ham-handed
extortion demand.

The claims, a counterattack in and to the Justice Department's lawsuit stopping Arizona's controversial new immigration laws, are prima facie proof that state officials now have fully untethered themselves from legal precedent in an effort to ease the state's financial pain and strengthen their own political positions. Styled as counterclaims in the existing litigation over S.B. 1070, the state's new "official" talking points read like a ham-handed extortion demand. Only if you give us more money, more border fencing, and more lawmen for our fight against unlawful immigration, Arizona now says to Washington, will you avoid abdicating your constitutional obligation to protect America.  

In this regard, Arizona's latest whopper is an extension into the federal courts of the state's plaintive strategy of hounding the White House and Department of Homeland Security over  immigration policy. Last year, remember, we were told by Gov. Brewer herself that she hoped that the passage of S.B. 1070 would jar federal officials, including Washington's lawmakers, into handling federal immigration the way Arizona evidently wants its handled. So far, all that's gotten the governor -- and Arizona -- is a federal court order blocking several key components in the state law with no relief in immediate sight from the appellate courts.

Washington shouldn't be proud of that. But nor should it dance to any state's tune. 

In any event, with its local legislative effort having failed to shock Washington into tangible action on immigration, Arizona now is back at the bar, asking the federal courts to even more grandly second-guess the executive branch's constitutional authority and functions. Now, with this countersuit, it's not just a matter of having an overreaching state statute examined for legal deficiencies at the request of the Justice Department. Now, its the federal government itself formally accused in federal court of violating federal law and the Constitution itself. Now, it's Brewer and Company begging for a judicial solution -- and from the federal courts to boot! -- to what is so clearly a political problem.

Never mind that for years Arizona has paid far less to Washington in taxes than the feds have delivered in return in benefits. Never mind that the Obama Administration in several measurable ways is outperforming its predecessor in sending unlawful immigrants back home and otherwise implementing federal immigration policies. Arizona now demands constitutional protection from invasion. Well, not technically "invasion" (as it says in the text of Article IV, Section 4 of the Constitution) because, in the words of Arizona's pleading, the "word 'invasion' does not necessarily mean invasion of one country by another, but can mean large numbers of illegal immigrants from various countries." Got that?

Such patently frivolous arguments -- Arizona even threw in a states'-rights bone to 10th Amendment fanatics -- aren't just a waste of time and money and energy in their own right. They also detract from the (relatively) less silly claims Arizona now has made against the feds under the Secure Fence Act of 2006 and the State Criminal Alien Assistance Program. Those claims, too, will almost certainly fail. But at least they fall within the zone of traditional conflict between federal and state authority. There are political shakedowns, after all, and then there are political shakedowns.

The Arizona Republic reported Friday that private donations so far have paid for the costs of the counterclaims. Instead of throwing good money after bad in futile litigation, those earnest benefactors might be better off simply writing a check to pay down the state's deficit. That  might not quickly solve the state's immigration problems -- nothing will -- but at least more Arizonans might be able to get the organ transplants they need.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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