By Jerry Markon
Washington Post Staff Writer
Sunday, February 13, 2011; 6:01 PM
Even as the federal lawsuit challenging Arizona's strict immigration law remains tied up in an appellate court, the tensions over the case have ratcheted up, with the state firing a legal shot back at the Obama administration.
Gov. Jan Brewer (R) filed the unusual countersuit last week against the federal government, accusing it of failing to secure the southwest border against a tide of illegal immigrants. The lawsuit, or counterclaim, was filed as part of the same case in which the Justice Department is seeking to have the Arizona law declared unconstitutional.
The department sued Arizona in July over the immigration law, which empowers police to question people who they suspect are in the country illegally. The law has triggered a fierce national debate. The U.S. Court of Appeals for the 9th Circuit is considering whether to allow the measure's most contested provisions to take effect.
"We did not want this fight. We did not start this fight,'' Brewer said as she announced the state's countersuit Thursday at a news conference in Phoenix attended by a handful of protesters. "But, now that we are in it, Arizona will not rest until our border is secured and federal immigration laws are enforced."
The state's lawsuit names Attorney General Eric H. Holder Jr. and Homeland Security Secretary Janet Napolitano, who preceded Brewer as governor. A Justice Department spokesman declined to comment, but Matt Chandler, a spokesman for Napolitano, called the lawsuit "a meritless court claim" that "does nothing to secure the border.''
Obama administration officials say they have heightened security along the border through measures such as the Southwest Border Initiative launched in 2009.
Legal experts say Arizona has little chance of winning the lawsuit, which seeks a judgment declaring the government in violation of its obligation to secure the border and compensation for Arizona's costs for detaining illegal immigrants. The state says illegal immigrants account for more than 14 percent of its prison population.
Lawsuits against the federal government are barred in most circumstances under a doctrine known as "sovereign immunity,'' and Arizona lost a similar lawsuit it filed over federal immigration enforcement in the mid-1990s. The 9th Circuit upheld a lower court's dismissal of that case, partly on sovereign immunity grounds.
"They lost then, and I think they're going to lose now,' said Louis Moffa, a law professor at Rutgers University who is an expert on immigration and constitutional law. He said the suit "makes some forceful arguments, but it's a political lawsuit.''
Even Arizona Attorney General Tom Horne (R), who joined Brewer in the lawsuit, said in an interview, "There are prior cases that went against us. We're asking the 9th Circuit to take a second look.''
Whatever its legal merits, the lawsuit reignited the political passions about the Arizona law, which was signed in April amid praise from some conservatives and condemnation from civil rights groups. Other states had vowed to copy Arizona's crackdown on illegal immigration, but a number of similar bills nationwide have stalled in recent months or are being reworked.
A coalition of civil rights groups that also are suing Arizona over the new immigration law said in a statement that the state's countersuit "is a political stunt" and "a legal sideshow that will do nothing to increase border security.''
But Horne said the countersuit is needed because an influx of illegal immigrants who are narcotics traffickers and have committed other crimes is putting Arizona residents at risk. "I want the federal government to start doing its job of protecting the border because Arizona is suffering very severely in a way that might be hard for people in Washington to understand,'' he said.
In its lawsuit against Arizona, the Justice Department argues that the state statute is "preempted" by federal law because immigration enforcement is solely a federal prerogative. Attorneys for Arizona say the law is constitutional.
U.S. District Judge Susan R. Bolton in July put on hold the most contested parts of the Arizona law. Those provisions would require police to check immigration status if they stop someone while enforcing other laws, allow for warrantless arrests of suspected illegal immigrants and criminalize the failure of legal immigrants to carry their documentation.
Arizona appealed that ruling, and a three-judge panel of the 9th Circuit held a hearing in San Francisco in November. It is not known when the panel will issue a ruling. The case is expected to wind up back before Bolton in federal court in Phoenix, where it will proceed along with Arizona's countersuit.