Bloomberg News

Arizona Border-Control Argument for Immigration Law Is Rejected

October 22, 2011

Oct. 22 (Bloomberg) -- A judge ruled that Arizona can’t defend its immigration law by claiming the U.S. has lost “operational control” over the border, prompting Governor Janice Brewer to say the U.S. Supreme Court should take up the matter.

U.S. District Judge Susan R. Bolton in Phoenix yesterday rejected Arizona’s latest attempt to revive an immigration law parts of which both she and a federal appeals court ruled unconstitutional. In April, the U.S. Court of Appeals in San Francisco upheld Bolton’s July 2010 ruling that struck down central provisions of the law, including a requirement that police determine the immigration status of people stopped for questioning.

This time, Arizona tried to argue that the federal government has failed to maintain operational control of the Arizona-Mexico border.

“This decision makes it even more critical that the U.S. Supreme Court hear our defense” of the law, Brewer said in an e-mailed statement. “If the courts won’t hold the federal government accountable -- as yesterday’s decision makes clear -- then states like Arizona need clarity in terms of the authority they have to combat illegal immigration.”

Brewer didn’t say in the statement that she will file an appeal to the high court. Her spokesman, Matthew Benson, didn’t immediately return a call seeking comment.

Protests and Challenges

Brewer signed the law in April 2010, spurring protests and court challenges, including the U.S. Justice Department’s lawsuit. Opponents say the measure would invite police interrogation and surveillance targeting people by race. Brewer has said the law responds to the federal government’s failure to curb illegal immigration.

Yesterday’s ruling dealt with Arizona’s counterclaims to the government’s suit.

Arizona argued that the federal government, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and amendments in 2008, is required to maintain “operational control” of its border with Mexico in part by building 700 miles of fencing, along with physical barriers and other infrastructure, according to yesterday’s ruling.

The state’s counterclaims “do not indicate that the federal government has completely failed or refused to act,” Bolton said in her order. “Rather, Arizona appears to challenge the manner in which the government has acted to complete the infrastructure and fencing goals and achieve ‘operational control.’”

The U.S. has “substantial discretion” in how to deploy its resources, Bolton wrote, and Arizona can’t “challenge the sufficiency of the government’s ongoing, non-final actions by attempting to frame its claims as a challenge to agency action.”

The lower-court case is U.S. v. State of Arizona, 2:10-cv- 1413, U.S. District Court, District of Arizona (Phoenix). The appeals court case is U.S. v. State of Arizona, 10-16645, 9th U.S. Circuit Court of Appeals (San Francisco).

--Editors: Peter Blumberg, Glenn Holdcraft

To contact the reporter on this story: Joel Rosenblatt in San Francisco at

To contact the editor responsible for this story: Michael Hytha at

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