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Friday, February 11, 2011

READ: Arizona's Counterclaim Against U.S. In S.B. 1070 Lawsuit

As announced earlier on Thursday by Gov. Jan Brewer and Attorney General Tom Horne, Arizona has (finally) filed an Answer to the legal action filed last year by the United States in the matter of Arizona's S.B. 1070 anti-illegal immigrant law.  Arizona also took the opportunity to file a counterclaim against the Obama Administration.

The Governor and AG first released a 6-page summary of the counterclaim, and later released the entire, filed Answer and Counterclaim.  The former presents (relatively) simple to understand synopses of the five counts in the Counterclaim.  Some are unsurprising, such as "Failure to Achieve and Maintain Operational Control of the... Border" (Count One), "Failure to Enforce/Follow Immigration Laws" (Count Three), and seeking reimbursement (Count Four). 

However, there are also a couple of eye-opening claims: failing to protect Arizona as required under the Constitution - requiring a redefinition of the constitutional term "invasion" (Count Two) and that the U.S. is violating the 10th Amendment by letting illegal immigrants in and then saying that Arizona cannot do anything about them once they are here (Count Five).

As is often the case in complex cases, both of the eye-openers require some creative legal gymnastics.  For example, the full counterclaim acknowledges that the court needs to redefine "Invasion" to include non-sovereign, non-military entrances by persons acting individually. (pp. 44-45)  The clause is found in Article IV, Section 4 of the United States 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.")

The 10th Amendment claim requires the trier to acknowledge that the federal government does have the constitutional responsibility to control immigration - including detaining and deporting those who make it past the border.  But - the legal reasoning seems to state - once illegal immigrants are here, Arizona must be permitted to facilitate the detaining and deporting and it is then unconstitutional for the federal government to preempt Arizona's actions against illegal immigrants.  (pp. 51-54)

From a legal-wonky perspective, some of the affirmative defenses asserted by Arizona to the original complaint seem rather... unique.  The frequently-cited affirmative defense of "self defense" is usually thought of in the context of an individual taking otherwise-illegal action to protect him or herself;  yet, Arizona is claiming that S.B. 1070 is a self-defense right "under the Constitution".  An entire chapter could be written on that perspective.  (p. 14)

Another unique affirmative defense is that the original lawsuit should name executive branch departments (DOJ, DHS, State) as the real parties in interest; first, it is not a typical "affirmative defense" and second, it is part of an interesting motif in the Answer and Counterclaim trying to split the plaintiff (the U.S. Government) into the Obama Administration, the executive agencies and Congress.  This appears partly designed to make an argument that the necessary laws are in place but are not being executed - never mind that Congress also controls the purse strings and that there is always a matter of prosecutorial discretion - and partly, politically, to single out the White House as the true villain.  This is borne out in another interesting affirmative defense - often used in business disputes among individuals or businesses - that claims that the federal government has "unclean hands".

The bottom line seems to be that this pretty standard legal pleading and tactic - counterclaiming - probably got a lot more public attention than it normally would, but for the Governor and AG's well-publicized news conference.  While parts are creative, other parts are exactly the types of complaints that are practically required to be brought up as a counterclaim if you feel that you have your own gripes with the plaintiff.  And, we have repeatedly been told that the reason behind S.B. 1070 and other state measures is precisely because Arizona has gripes against the federal government.  An argument could be made that IF these had not been raised as a (compulsory) counterclaim, that Arizona would not be permitted to later file this as a separate action against the U.S. government.

(note, in case any reader has a way of getting the counterclaim amended, paragraph 180 inadvertently uses "Counterclaimants" instead of "Counterdefendants".  An easy-to-make-yet-hard-to-catch common mistake that nonetheless can jar the reader off the track that you were trying to take him or her on.





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