Arizona Has A Case (Short Of Secession) For Billions In Damages From Uncle Sam
By JOSEPH R. EVANNS AND EGON MITTELMANN
Posted 08/03/2010 06:23 PM ET
In federal lawsuits, defendants may answer litigation filed against them with a counterclaim against the plaintiff for damages or other relief.
The Constitution of the United States mandates at Article 4: "The United States shall guarantee to every state in this Union a republican form of government ... that the United States shall protect each of them (the states) against invasion and ... against domestic violence." (Emphasis added)
"Republican form of government" is defined as a republic that is a system of government in which the people hold sovereign power and elect representatives to exercise that power.
To "guarantee" means to warrant or undertake that something has happened or will happen. The term "invasion" is (regarding a country or territory ) a hostile incursion.
The term "shall" used in the third person singular denotes an imperative, without discretion or choice. Thus, the phrase "shall guarantee" leaves no wiggle room.
Remedies for breach of guarantee are damages (expenses incurred in repairing guaranteed product) or rescission (return of product for refund of purchase price — i.e., "money back" guarantee).
Recently, the federal government — the present regime in particular — has not only violated the guarantee of republican form of government and the pledge to protect Arizona from invasion and domestic violence, but has actively worked to achieve the exact opposite result.
By the federal government's determined resistance to enforcing existing federal law against illegal immigration and attempting to penalize Arizona for attempting to cope with illegal immigration on its own, the federal government has crassly flouted its obligation to guarantee a republican form of government for the state of Arizona.
One of the most effective means for destroying a republic is to bankrupt it and beggar its people.
This is what befell Rome, which went from a republic to what would now be called a dictatorship as a result of the financial drain on the country resulting from the empire.
In the case of Arizona, recent figures disclose that illegal immigration costs the state $2.5 billion annually. This amounts to approximately $400 for every man, woman and child in the state, which has a population of less than 7 million.
The federal government has not only filed litigation against Arizona, but informed an association of Arizona sheriffs that it intends to prosecute as an example at least one deputy for enforcing Arizona's anti-illegal immigration legislation (SB 1070).
There are reports the administration is seeking ways to cease doing business with Arizona and is encouraging other states to do the same, to exercise economic coercion on the state.
The administration has praised the efforts of states such as California for economically boycotting Arizona. The sanctions the administration has imposed on Arizona are hardly less draconian than those that the same administration has imposed on Iran to prevent Iran's acquisition of nuclear weapons. All this for Arizona's daring to exercise its republican form of government and passing widely popular legislation in a manner completely consistent with Arizona's Constitution.
The Obama administration has thus tried to take control of Arizona and abridge/suppress its republican government in substance and in process.
Also violated by the federal government is the pledge to protect Arizona from invasion. The enormous influx of illegal immigrants into Arizona—uninvited, demanding and belligerent—clearly constitutes a hostile incursion.
The surge in illegal immigration has brought with it crime and violence. Phoenix is now the kidnap capital of America as a result of the Mexican gangs that have invaded Arizona using kidnapping as a form of turf acquisition and protection.
Notably, on the Independence Day weekend this year a Mexican drug gang announced that the border with Mexico and Arizona was "moved" several miles into Arizona whereby Interstate Highway 8 would now be the border. There was no response to this by the Obama administration.
It is undeniable that the federal government has shamelessly and willfully violated its guarantee and pledges under Article 4, constituting suitable grounds for counterclaims by Arizona against the federal government.
The question is whether the remedy for such violation should be rescission or damages. If the latter, a figure of $2.5 billion annually could be employed per the latest studies projected backward as well as forward. As to the rescission alternative (the "money back" guarantee, whereby the contract is undone or rescinded), this would constitute rescission of the breached agreement whereby Arizona entered the union in 1912.
Gaspers in disbelief regarding rescission/secession should know that there is nothing sacrosanct about the federal government; only the Constitution is inviolable. When the federal government willfully refuses to comply with a constitutional mandate, the Constitution can be upheld only by implementing its provisions, in this case the "money back" guarantee.
An independent Arizona can contract with the federal government for defense, as do small cities with the counties in which they are located, for police/fire protection. The outsourcing of defense by an independent Arizona might be expensive, but with the money saved from illegal immigration, Arizona could afford it.
The federal government might even make money on the deal and, for the first time, turn a profit on something.
To those who would label this "draconian," the answer is this is a race to a precipice with a sheer drop greater than that of Arizona's crown jewel, the Grand Canyon.
Personally, we'd go for damages. What's 10 or 20 billion nowadays anyway? If the verdict came down in the early-ish morning, the Obama administration could have the money printed up by lunchtime.
• Evanns and Mittelmann are attorneys in Beverly Hills, Calif.
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