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Arizona lawmakers introduce border bill similar to a law Texas is getting sued for

A Republican state senator has introduced legislation dealing with illegal immigrants that could conflict with a 2012 U.S. Supreme Court ruling that said Arizona has no right to enforce federal immigration laws. 

And that could lead to the same multi-year litigation that eventually voided key provisions of a 2010 law.

The bill, sponsored by Sen. Janae Shamp (R-Surprise), copies parts of a Texas immigration law the U.S. Department of Justice says is unconstitutional. 

That Texas law has drawn comparisons to Arizona’s own SB 1070, the infamous immigration law challenged by not just various civil and immigrant rights groups but also the Justice Department.

Shamp’s SB 1231  would make it a crime for a person to enter Arizona from Mexico outside a port of entry, or to reenter the state if the person had already been deported. Those are already federal crimes, but Shamp says making them state crimes would empower state and local law enforcement to arrest individuals at the border. 

“So yes, we’re doing what Texas is doing because we’re trying to secure the border to protect our citizens, and so, what ultimately has happened is the DOJ has filed suit against Texas,” Shamp said.

State lawmakers tried a similar approach in 2010 with SB 1070. Proponents argued that Arizona had the right to take such matters into their own hands due to the failure of the federal government to secure the border. And they argued they weren't enforcing federal immigration laws but simply creating state crimes that happened to affect those not here legally.

The U.S. Supreme Court, however, didn't see it that way.

In its ruling, a majority of the justices voided three sections of the measure that would have specifically given state and local police the power to charge those here illegally with violating state laws for:

  • Seeking working in Arizona without being in this country legally;
  • Failing to carry federally issued registration cards;
  • Allowing warrantless arrests if there is "probable cause'' a person committed an offense that makes them removable from the country under federal law.

The majority said all three provisions illegally conflict with federal law.
Shamp did not specifically address that Supreme Court ruling, saying her goal was to "take the handcuffs off law enforcement.''

But in a statement to Capitol Media Services, the senator said she believes there would be a different outcome than SB 1070 if this one is challenged. She said the situation is different now.

"What was once an issue is now an invasion,'' Shamp said.

"We're not trying to enforce immigration policy,'' she continued. "We're trying to give our state and local law enforcement officers the tools they need to protect Arizona citizens.''

Shamp also suggested that a different Supreme Court, with different justices than those on the bench in 2012, may rule differently.

But Justin Cox, an attorney who was part of the litigation that resulted in the Supreme Court overturning most of the 2010 Arizona law, said he believes Shamp is mistaken if she thinks this will survive litigation. 

In fact, Cox said SB 1231 is even worse than the 2010 law.

"It's crystal clear the Constitution says only the federal government can decide what's a crime vis-a-vis our border,'' he said.

Cox said proponents of that 2010 law sought to get around that absolute prohibition by claiming they were not actually trying to create new state laws dealing with illegal immigration.

"It sort of had the pretense that state and local officials are just authorized now to help the feds enforce federal immigration,'' said Cox, who represented the national ACLU in the prior litigation.

Cox, now a consultant for various nonprofit organizations, said what Shamp has proposed doesn't even try to argue that her measure is simply the state helping the feds enforce their laws.

"I think it goes further,'' he said. In fact, SB 1231 is titled "State crime; illegal border crossings.''

Senate President Warren Petersen (R-Gilbert) said the state has the resources to fight back against the federal government if the law is approved and the DOJ again files a challenge in Arizona. 

And Republican senators have the support of the Arizona Sheriff’s Association. Yavapai County Sheriff David Rhodes said sheriffs are fed up with the failure of the federal government.  

“Our elected leaders and our administrative leaders in the executive branch, they need to get off the couch and do something now. The time has passed,” Rhodes said.

But first, the legislation would need the approval not just of lawmakers, but Democratic Gov. Katie Hobbs. 

Arizona Democrats were already fiercely critical of Texas’ SB 4, and are likely to be just as critical of Shamp’s legislation.

A spokesperson for the governor did not respond to requests for comment. The governor has been openly critical of the federal government’s border policy over the last several weeks.

“No one understands the misguided efforts of the past more than our neighbors, sheriffs, small business owners, and local law enforcement near the border who work every day to offer solutions where the federal government has failed,” Hobbs said in her State of the State address.

Senate Republicans also announced that Sen. David Gowan (R-Sierra Vista) will be introducing a bill that he ran in a similar form last year; to add tougher penalties to drivers to endanger others while trying to flee from law enforcement.

That bill failed in the Legislature last year, but Gowan said this year he’s already collected the support of House and Senate Republicans as well as some Democrats.

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    Camryn Sanchez is a field correspondent at KJZZ covering everything to do with state politics.