SB 1070 Appeal

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Dennis Burke, U.S. Attorney for the District of Arizona, discusses the decision by Governor Jan Brewer to ask United States Supreme Court to consider lifting an injunction that put key parts of SB 1070 on hold.

Ted Simons: Arizona will go directly to the U.S. Supreme Court to appeal a federal injunction against major parts of S.B. 1070. Governor Brewer made the announcement this week, saying the state needs to move quickly to protect Arizona residents from the dangers of illegal immigration. Here to talk about that issue and others is U.S. attorney for Arizona, Dennis Burke. Thanks for joining us.

Dennis Burke: Thanks for having me.

Ted Simons: What are your thoughts about the state going directly to the Supreme Court and forgetting about the messing around with the ninth circuit.

Dennis Burke: The other option was the ninth circuit. There was a three-judge panel that found the law unconstitutional. Their option was to ask for what's called en banc, the full ninth circuit, not just three judges, the entire 9th circuit would hear their appeal. They bypassed that and going straight to the Supreme Court. Not surprised. We're prepared for it. We're ready to argue it in the Supreme Court as we did in the ninth circuit and as we did in federal district court here in Phoenix and confident we'll prevail again, and that the law is unconstitutional.

Ted Simons: The idea, I guess, behind the move is that it would take too much time to go en banc and we can't afford to take so much time. That Arizona residents are in danger, and need these parts of SB1070 to be in effect, how do you respond to that?

Dennis Burke: I think that's all based on false premises. The act is unconstitutional. It's also unworkable and unfunded. They never funded S.B. 1070 and to me, that shows they were never really fully committed to this. It's unworkable, it was obvious by the reaction of a lot of folks in law enforcement in general and how they would have to function under it. Because they're rightfully confused by it. It was not very well written. Poorly written.

Ted Simons: The idea of going directly to the Supreme Court is on the table and in the plans. Do you think the Supreme Court will take it?

Dennis Burke: I don't know, it's hard to guess on that. There are other cases before the Supreme Court right now dealing with the issue of immigration and the role of the state versus the federal government. That could be a reason in itself to take this case. But we also believe that the opinion by the ninth circuit is pretty solid and there's reason for the court not to take it, because and leave the ninth circuit alone.

Ted Simons: Would you be surprised if the court did not take it?

Dennis Burke: I don't think I would be surprised either way. I think we're confident we would prevail but there's arguments either way whether the court should take it in light of what the ninth has already ruled.

Ted Simons: What would happen if the Supreme Court does not take it. What then happens? The injunction stays but the process continues, correct?

Dennis Burke: Correct. Right. Process wise, it was an injunction. We filed to enjoin the state from enacting the law at all and putting it into operation and judge Bolton at the district court agreed with us, and the panel at the ninth circuit agreed with us. If the Supreme Court denies a review of this, then the ninth circuit ruling is upheld and continues to stay enjoined and there could be a underlining case before judge Bolton but it's pretty limited at this point.

Ted Simons: We had attorney general horn on the program and he said one of the flaws he saw in the 9th circuit panel's decision, was the panel relied on foreign government, the opinion of foreign governments and that actually swayed their decision. Again, how do you respond?

Dennis Burke: I don't know how anyone can guess how these three judges made up their minds. I think what he's referencing is there were numerous amicus briefs filed. Those are from non-parties who can file briefs in a case and some foreign governments did file amicus there. I think what he's saying is that, it was a 2-1 ruling and one the judges, judge Noonan appointed to the bench by Reagan, a very conservative justice, who agreed that this law was unconstitutional. He separately wrote a concurrence and said it's about the foreign fairs authority under the government under the U.S. constitution. The subset is immigration. I assume our attorney general Horne is trying to shoehorn that in saying they relied on foreign governments. That's an incredible stretch.

Ted Simons: Well I guess the idea is, anyone who files a brief in this case in some way could influence the decision.

Dennis Burke: But who knows how they were influenced? All we know is what they wrote. And what we know is Judge Noonan wrote it based on the constitution and the exclusive power of the federal government to control foreign affairs.

Ted Simons: At the core of the state's argument, aside from supremacy clauses and other aspects, seems to be if the federal government is not doing its job and a lot of folks seem to think that and the state is not allowed to do its job and a lot of folks seem to think that this injunction is keeping that from happening, no one is protecting the border and no one is protecting Arizona citizens. What are your thoughts on that?

Dennis Burke: I would disagree with that premise, I think we've made incredible progress on the border in the last couple of years. In my office alone, our drug prosecutions we bring in the federal court are 100% over what they were just two years ago. The numbers we produce of prosecutions of immigration and drug trafficking on the Southwest border are unprecedented. We have over-capacitizing on the cases weave we're bringing and I would challenge that premise and I would challenge that the idea that S.B. 1070 is a solution to all that, is false too. The proponents of S.B. 1070 have constantly changed what they think this law would do. They initially said, oh, it's going to protect the border, then they walked away from it and now the governor is saying it's symbolic. So they've moved constantly because they know at the heart of it, there's really nothing to this law other than the fact it's been incredibly divisive and confusing to law enforcement.

Ted Simons: Last question on this particular topic. Is it not also a deterrent? Because supporters of S.B. 1070 says it and if that's as far as it goes, that's good enough.

Dennis Burke: I would question that too. I would say S.B. 1070 has not been a deterrent to illegal immigration. I would say the resources we put on the border have been immense and unprecedented and that's what is having the impact. And this is a much broader issue than just even the Southwest border. It's the issue of the economy in the United States and what's going on in Mexico and in a lot of situation, if there aren't opportunities coming up here and getting jobs in a down economy, it's going to lead to lesser numbers. I don't think it has anything to do with a law that didn't even go into effect.

Ted Simons: Ok, before I let you go I want you to talk about this letter, a warning about medical marijuana that you grow, distribute or possess in any capacity, you're saying that state law is interesting, but federal law rules.

Dennis Burke: Yeah, correct. We had given guidance some time ago from the Justice Department about this, a memo came out by David Ogden who is the deputy attorney general about a year ago and said to U.S. attorneys, guidance to us look this is not a priority for the department. People who follow the state medical marijuana laws, because there's a proliferation around the oppressed countries and it's still against federal law and what my letter said is follow that guidance. We're telling the individuals involved in the system, telling the state of Arizona, at the end of the day, you can decriminalize what you want at the state level but you can't legal I'd it federally. You can't provide a safe haven by changing state law for what is in violation of federal law and it's still a violation of federal law.

Ted Simons: You wrote you would not go after the seriously ill if there were clear unambiguous compliance. What is clear unambiguous compliance?

Dennis Burke: Well we're not going to go after the sick anyways. We don't do that at the federal level anyway. We don't do cases of personal possession. We focus on drug trafficking and we have to prove in our cases that they're drug trafficking. And that said, though, these are all violations of federal law. They're not going to be a priority for us and we will look at it. We'll look to see if someone is just trying to follow the state law. That's another sign it's not a priority for us. But it cannot be a cover for someone to be involved in illicit drug trafficking. So what's the message? If I want to set up a distribution center, what's your message to me?

Dennis Burke: It's a risk you always take. It's a risk you're in violation of federal law. You're taking a risk. Just because the state of Arizona pass aid law that says at the state level this should be legal, that doesn't take away the federal law.

Ted Simons: Does that mean the medical marijuana law, the state law is essential useless?

Dennis Burke: It doesn't mean that it's useless, it means that the people who proceed on this, take it at the risk they're in violation of federal law and they're not going to get immunity by a federal official just because the state passed a law.

Ted Simons: Do you think the message is getting out?

Dennis Burke: I think it is.

Ted Simons: Good to see you.

Dennis Burke: Thanks for having me.

Dennis Burke:U.S. Attorney for the District of Arizona;

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