SB 1070 Lawsuit

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The U.S. Department of Justice filed a lawsuit challenging Arizona’s new immigration law. Dennis Burke, United States Attorney for the District of Arizona, talks about why the Obama administration decided to pursue federal action against the state.

Richard Ruelas: Thank you for joining us. I'm Richard Ruelas in for José Cárdenas. This week, the U.S. Justice Department filed a lawsuit challenging the constitutionality of Arizona's new immigration law. The lawsuit chambers a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. This federal lawsuit joins others looking to stop the law from going into effect on July 29th. Joining me now to talk about the government's position on S.B. 1070 is United States attorney for Arizona, Dennis Burke. Thanks for joining us on this eventful week.

Dennis Burke: Thank you Richard. Thank you for having me.

Richard Ruelas: We've known this was coming for a while. Why now. Is this something the government checks with you, the U.S. attorney for Arizona on before they file. What was the timing?

Dennis Burke: As the chief lawmaker officer for the district of Arizona, I'm involved in decisions like this that impact my district and so the lawsuit, and the decision is made by the attorney general himself, Eric holder, but in the consultations and efforts working toward that, they involved the United States attorney's office and so we've been involved in assisting in the drafting of the documentation. Getting declarations which are basic affidavits from individual who's back up our position and then guiding the department through the local, federal rules here for the district so that they file appropriately and follow the rules and get a lay of land. And so they have a lay of the land, as to the courts, the potential litigants and the parties who are involved in the lawsuit.

Richard Ruelas: Obviously, you wanted it filed before the law took effect in giving enough time for the judge to stop the law from going into effect?

Dennis Burke: That's correct.

Richard Ruelas: You got really close.

Dennis Burke: We did. The law is intended to go into effect on the 29th of this month. We filed yesterday. It did take a long time. A lot of effort went into this, as you can -- anyone can see by reading the complaint and we also filed a preliminary injunction which is a document that asks the court to consider preventing a law from going into effect on the 29th. Not only challenging the law, saying it's unconstitutional, but asking the court to enjoin it, prevent it -- prevent it from going into effect because we believe it causes irreparable harm to the federal government and our ability to conduct foreign affairs.

Richard Ruelas: How long after Governor Jan Brewer -- how quickly do you think the government decided this is something to get involved in and try to stop?

Dennis Burke: The decision to review this was made immediately. The decision to -- whether to actually file in federal court and file our own case as opposed to joining in some of the other cases and referenced earlier, there's other lawsuits to this. Five other lawsuits challenging S.B. 1070 that have been filed in the district of Arizona. Our decision took some time to study the statute, to study its true impact. To put our complaint together and our preliminary injunction, that took a lot of time and the final decision by the attorney general who made this decision was in the very recent time.

Richard Ruelas: Ok. So you had given him information. I know I've seen the complaint, but you brought with you, a giant binder full of document that is includes testimony from local federal officials and police Chief Jack Harris of Phoenix. It's that kind of evidence or information that the people in Washington had to look at to make this decision?

Dennis Burke: All of that, Richard. We have a actual complaint filed that challenges the lawsuit, the preliminary injunction attached to that, our 10 declarations, sworn statements by individual who's discuss the impact this law has on their functions. From the deputy secretary of state, James steinberg, the second highest ranking individual in the state department, talking about the impact this one state law has on the immigration system and how we conduct foreign affairs. You mentioned Jake Harris, chief Harris from the Phoenix police department. Chief Cooper from Flagstaff and sheriff Estrada from Santa Cruz county all provided statements.

Richard Ruelas: Not that this law might be constitutional, but it can't go into effect. Part of their testimony, if it goes into effect, it will cause harm to our jurisdiction?

Dennis Burke: Yes, you've got federal officials talking about how this impinging their duties and how our immigration system is presented and viewed in international forums and it has department of homeland security affidavits and how it impacts their jobs and roles and responsibilities as federal officers and then it has, as we mentioned, the local and state officials and the impact on them. The reality is this law was passed with zero dollars provided to anyone. It is unfunded. And it's evident from the affidavits that were provided to us by law enforcement, it's unworkable and the thrust of our lawsuit is it's unconstitutional and there's no getting around that. You have to challenge it when it's unconstitutional.

Richard Ruelas: When we think of the federal court decision, a lot of things seem to be based on theory or it is unconstitutional, as a matter of lawyers hashing it out in the courtroom. You mentioned practicality. Does the impact matter to a judge more so than the constitutionality of it?

Dennis Burke: We challenged the law before it actually went into effect and our overall argument is this is unconstitutional and causes damage to how the federal government functions with regards to the immigration system and foreign affairs under the constitution. Those are facial challenges and what we mean by that, you challenge it before you even have to watch this act, this law be in effect.

Richard Ruelas: Right, on paper, this -- in the government's opinion violates the constitution.

Dennis Burke: Exactly and that's why we're seeking an injunction to not allow it to go into effect on the 29th.

Richard Ruelas: But you're looking at law enforcement officials saying it's not practical to enforce and that's a federal concern?

Dennis Burke: Absolutely. With regards to our obligations, department of homeland security, how they interact with state and local law enforcement.

Richard Ruelas: Because the police --

Dennis Burke: Interacts with federal law enforcement on immigration matters.

Richard Ruelas: I guess that's -- if Phoenix police are busy chasing gardeners and dishwashers, it might be the federal government we can't use them effectively if we need them for our purposes.

Dennis Burke: The direct obligations it imposes on local law enforcement puts an additional burden on homeland security with regard to their priorities, which aliens to target and how to enforce our immigration laws. This one state of 50 states that's determined this is how immigration policy, was a overall federal responsibility, whether done well or not, is first, a federal responsibility, has now said we'll take it because the federal government has abdicated that responsibility. But not fund local law enforcement to do it.

Richard Ruelas: As far as the reasons the government has offered in its complaint at least, and I've seen -- I'll borrow your binder for bedside reading, but it starts with the get-go. The purpose of S.B. 1070 was supposed to say that Arizona's policy will be attrition by enforcement. And the federal government saying that that policy in and of itself. That stated policy is in violation of the supremacy clause, meaning the U.S. government has control over immigration, not the state.

Dennis Burke: Right.

Richard Ruelas: Do you see that intent as starting an immigration policy and not just a drive them out of our state policy?

Dennis Burke: It's evident in the language of S.B. 1070 and it's already been amended. So the proponents already realized they had mistakes with the law and went back a week later and realized they had to rewrite part of it and it's evident from the overall language of it. The language you just referenced, a determination of policy, how a separate independent immigration policy for the state of Arizona, one of 50 states will determine what immigration policy is regardless of whether it violates or conflicts or creates confusion with an overall federal immigration policy which is a constitutional responsibility of the federal government.

Richard Ruelas: And another reason, at least in the complaint, is the drain on federal resources, it seems if local law enforcement is busy going after low-grade illegal immigrants, for lack of a better term, rather than criminal illegal immigrants it takes up resources.

Dennis Burke: This will require subject to a penalty of lawsuits that are allowed in S.B. 1070 where you can sue a law enforcement agency for a belief they failed to enforce it law, these law enforcement as in the state of Arizona will have to do checks that have an impact on the federal government and what they consider their priorities. The priorities for the federal government are to go after the worst of the worst. This is basically said forget that. Go after anyone you want. We're not going to fund that and not care at all what impact that has on an overall immigration policy.

Richard Ruelas: And we've already seen the federal system in Arizona, at least, dealing with the immigration courts. Seems to have a back log of immigrants that get busted by, say, an employer sanctions bust. If they ask to see a judge, they're waiting two or three years, four years in the system. Do you see this adding to that?

Dennis Burke: It could add to that back log, but it takes something which is often a civil process. Which is still deportation and criminalized it through a state process. Regardless of what the federal government position is whether that should be a civil or criminal process, S.B. 1070 says that's all criminal and we'll enforce it at a local level. Because of our frustration, which is legitimate frustration, with a system that has not fully worked but the decision is we're going it pass one state law and say all of those elements, all of those offenses are now criminal which lead to arrest and imprisonment and another effort to determine what the priorities are for the federal government based on state-by-state.

Richard Ruelas: You mentioned frustration and people upset with the government and feds and the Obama administration for filing it lawsuit which they see as going against the will of a lot of Arizonans, how would you explain to those people who want the government to do something why the government seems to be attacking Arizona for passing this law?

Dennis Burke: I would say the frustration that Arizonans have with the current immigration system is very genuine. It's one I join in. It is frustrations that went on for many years. Federal policy has particularly impacted the state of Arizona and in the past, federal policy has actually funneled the trafficking through the state of Arizona. A huge impact on the quality of life. But the answer isn't to say the federal government failed so we'll come up with our own unfunded law and take over that responsibility and that's it. And then to say, you go to support 1070 -- you've got to support 1070. Without trying to figure out how does it work in the entire scheme. Drew a line in the sand saying you're with us or against us even though it's a bad law and a fraud on the people of Arizona.

Richard Ruelas: And the frustration, before you got this job, which you've only had for a few months now. Welcome.

Dennis Burke: Thank you.

Richard Ruelas: You worked for a while as an advisor to Governor Janet Napolitano.

Dennis Burke:Right.

Richard Ruelas: You saw this frustration fester and probably seen a bill similar to S.B. 1070 back when they were trying to make trespassing a state law. Get there, but not pass, how did we get to this part where S.B. 1070 passes, whereas, before it never would get out of committees?

Dennis Burke: Similar version either did not get out of committee or both bodies of the state legislature or got vetoed by Governor Napolitano. We've come a long way and made progress with what the federal government does this Arizona. There's a long way to go. There's a huge frustration that's legitimate. There's a lot more the federal government can do and we're trying to do but the solutions aren't to say we're going to pass a state law and that's going to fix it all. And puts a huge burden on state and local law enforcement without any sense of how it will impact them. Or if that, will be a solution and you can secure your border by adding an unfunded mandate on local law enforcement.

Richard Ruelas: As if this law does something to secure the border. I'm sure we'll have you back as it goes through the system. Later on this month and see what happens from there. I thank you for joining us and laying out a little more on the government's position on this S.B. 1070 law.

Dennis Burke: Thank you, Richard.

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

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