United States of America v. Arizona, State of, et al

Filing 149

ANSWER to 1 Complaint by Intervenor Defendant Arizona State Legislature.(ESL)

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

Geoffrey S. Kercsmar (#20528) Gregory B. Collins (#023158) KERCSMAR & FELTUS PLLC 6263 North Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 Tel: [phone] [e-mail] [e-mail] Paul J. Orfanedes (Motion for admission pro hac vice to be filed) James F. Peterson (Motion for admission pro hac vice to be filed) Michael Bekesha (Motion for admission pro hac vice to be filed) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 Tel: [phone] Attorneys for Proposed Intervenor/Defendant the Arizona State Legislature IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) Case No.: 2:10-cv-01413-SRB ) ) Plaintiff, ) ) LODGED: [PROPOSED] ANSWER IN ) INTERVENTION v. ) ) The State of Arizona; and Janice K.) Brewer, Governor of the State of Arizona,) ) in her Official Capacity, ) ) Defendants, ) ) and ) ) ) The Arizona State Legislature, ) ) Defendant-Intervenor. ) The United States of America,

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

Defendant-Intervenor the Arizona State Legislature, by counsel, answers the paragraphs of Plaintiff's complaint as follows: 1. INTRODUCTION Defendant-Intervenor admits that the United States of America has sought to enjoin

the enforcement of SB 1070. This remainder of the paragraph contains conclusions of law, not allegations of fact, and thus no response is required. 2. This paragraph contains conclusions of law, not allegations of fact, and thus no

response is required. 3. Defendant-Intervenor admits that it adopted, and the Governor signed, SB 1070.

The remainder of this paragraph contains conclusions of law, not allegations of fact, to which no response is required. To the extent that this paragraph seeks to characterize SB 1070, as amended by HB 2162, Defendant-Intervenor avers that the law speaks for itself. 4. Defendant-Intervenor denies the allegations in the first sentence of the paragraph.

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This paragraph contains conclusions of law, not allegations of fact, and thus no response is required. 5. Defendant-Intervenor is without sufficient information to form a belief as to the

truth of the averments in the first sentence regarding what the United States "understands" or what efforts it believes it has "undertaken" to secure our nation's borders. DefendantIntervenor denies the second sentence that the federal government welcomes cooperative efforts by states and localities to aid in the enforcement of the nation's immigration laws. The remainder of the paragraph contains conclusions of law, not allegations of fact, and thus no response is required.

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

JURISDICTION AND VENUE 6. The first sentence contains conclusions of law, not allegations of fact, and thus no

response is required. Defendant-Intervenor admits that this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1345 and that plaintiff seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202. 7. Admit. PARTIES 8. 9. 10. 11. 12. 13. Admit. Admit. Admit. Admit. Admit. Admit. STATEMENT OF THE CLAIM 14. Defendant-Intervenor admits that this paragraph contains a partial quotation from

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the United States Constitution (the "Constitution"). The Constitution is a document that speaks for itself and any characterizations of the Constitution are denied.

21 22 23 24 25 26 27 28 characterizations are denied. 16. Defendant-Intervenor admits that this paragraph contains a partial quotation from 3 15. Defendant-Intervenor admits that this paragraph contains partial quotations from The Constitution is a document that speaks for itself and any The remaining allegations are "broad" discretion and such

the Constitution.

characterizations of the Constitution are denied. characterizations of the federal government's

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

the Constitution.

The Constitution is a document that speaks for itself and any

characterizations of the Constitution are denied. To the extent that this paragraph seeks to characterize the President's duties, such characterizations are denied. 17. Defendant-Intervenor admits that Congress has exercised its authority to make laws

governing immigration and the status of aliens within the United States by enacting various provisions of the INA and other laws regulating immigration. To the extent that this paragraph seeks to summarize portions of the INA, the statute speaks for itself and any characterizations are denied. 18. Defendant-Intervenor admits the allegations contained in paragraph 18 that the

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INA at times vests discretion with respect to specific provisions of immigration laws. Upon information and belief, the federal government has from time to time set enforcement priorities for the arrest, detention, prosecution, and removal of aliens. Defendant-Intervenor is without sufficient information and knowledge to either admit or deny the specific enforcement priorities of the federal government. 19. Defendant-Intervenor admits the allegations contained in paragraph 19 that

Congress has taken into account competing interests and agrees that "effective enforcement of the provisions against illegal migration and unlawful presence is a highly

21 22 23 24 25 characterizations of such laws and cases are denied. 26 27 28 20. Defendant-Intervenor admits the allegations contained in paragraph 20 of the important interest" and it is not the singular goal of the federal immigration laws. To the extent that paragraph 19 attempts to summarize portions of the nation's immigration laws, the immigration laws and the cases interpreting the laws speak for themselves and any

Complaint that DHS, DOJ and the Department of State all have powers and obligations 4

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

with respect to aspects of the immigration laws. To the extent that paragraph 20 attempts to summarize portions of the nation's immigration laws, the immigration laws speak for themselves and any characterizations of such laws are denied. 21. Defendant-Intervenor admits the nation's immigration laws at times vest discretion Paragraph 21 attempts to

with respect to specific provisions of immigration laws.

summarize portions of the nation's immigration laws. The immigration laws speak for themselves and Defendant-Intervenor denies any characterizations of such laws. 22. Defendant-Intervenor admits the immigration laws at times vest discretion with

respect to specific provisions of immigration laws and that DOJ and DHS exercise discretion from time to time in enforcing the laws. Paragraph 22 attempts to summarize portions of the nation's immigration laws. The immigration laws speak for themselves and Defendant-Intervenor denies any characterizations of such laws. 23. Defendant-Intervenor admits that "unlawful entry into the United States is a Defendant-Intervenor further admits that

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criminal offense" under 8 U.S.C. § 1325.

Congress authorized, without a warrant, "federal immigration officers to patrol the United States border, as well as search vehicles and lands near the border, to prevent aliens from unlawfully entering the United States." The remaining allegations contained in paragraph 23 of the Complaint are incomplete summaries of portions of the nation's immigration laws. The immigration laws speak for themselves and Defendant-Intervenor denies that such summaries are complete, and further denies the characterizations of such laws. 24. Paragraph 24 of the Complaint attempts to summarize portions of the nation's

26 27 28 immigration laws related to an alien registration system. The immigration laws speak for themselves and the Defendant-Intervenor denies that such summaries are complete, and 5

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

further denies any characterizations of such laws. 25. Paragraph 25 of the Complaint attempts to summarize portions of the nation's

immigration laws related to an alien registration system. The immigration laws speak for themselves and the Defendant-Intervenor denies that such summaries are complete, and further denies any characterizations of such laws. 26. Paragraph 26 of the Complaint attempts to summarize portions of the nation's

immigration laws related to an alien registration system. The immigration laws speak for themselves and Defendant-Intervenor denies that such summaries are complete, and further denies any characterizations of such laws. 27. Defendant-Intervenor admits that paragraph 27 of the Complaint quotes certain

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portions of 8 U.S.C. § 1324. 8 U.S.C. § 1324 speaks for itself and any characterizations of the statute are denied. 28. Defendant-Intervenor admits that paragraph 28 of the Complaint quotes small

portions of 8 U.S.C. § 1324. 8 U.S.C. § 1324 speaks for itself and any characterizations of the statute are denied. 29. Defendant-Intervenor admits that paragraph 29 of the Complaint quotes small

portions of 8 U.S.C. § 1324. 8 U.S.C. § 1324 speaks for itself and any characterizations of 21 22 23 24 25 26 27 28 Customs and Border Protection ("CBP"), and U.S. Citizenship and Immigration Services ("USCIS"). Defendant-Intervenor affirmatively alleges that DHS and its components 6 the statute are denied. 30. Defendant-Intervenor admits that under specific portions of the INA and other

immigration laws, DHS is charged with administering and enforcing the laws and that DHS includes, among others, U.S. Immigration and Customs Enforcement ("ICE"), U.S.

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

have failed to enforce the nation's immigration laws. Defendant-Intervenor further admits that Congress has acknowledged numerous ways that the states may assist in the enforcement of the immigration laws. Paragraph 30 of the Complaint attempts to

summarize portions of the nation's immigration laws. The immigration laws speak for themselves and Defendant-Intervenor denies that such summaries are complete, and further denies any characterizations of such laws. 31. Defendant-Intervenor admits the allegations contained in paragraph 31 of the

Complaint that DHS has some programs where DHS works cooperatively with states and localities. Defendant-Intervenor admits that LEAR and LESC are two such programs. Defendant-Intervenor admits that state and local authorities frequently work with DHS for determinations regarding immigration status and other immigration matters. The

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remaining allegations in paragraph 31 attempt to summarize portions of DHS programs that involve state and local agencies and officers, but Defendant-Intervenor denies that such summaries are complete. 32. Plaintiff's statements in paragraph 32 of the Complaint are legal conclusions as to

which no response is required. Arizona's SB 1070 33. Defendant-Intervenor admits Governor Brewer signed SB 1070 into law on April

23, 2010. Defendant-Intervenor admits that paragraph 33 of the Complaint includes quotes of portions of SB 1070 and paragraph 33 attempts to summarize portions of SB 1070. SB 1070 speaks for itself. Defendant-Intervenor denies any characterizations of

26 27 28 SB 1070 contained in paragraph 33. 34. Defendant-Intervenor admits that Governor Brewer issued Arizona State Executive 7

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

Order 2010-09 (April 23, 2010) and that paragraph 34 of the Complaint includes quotes from a small portion of Executive Order 2010-09. Executive Order 2010-09 speaks for itself. 35. Defendant-Intervenor admits that HB 2162 amended SB 1070 and that Governor

Brewer made a statement after HB 2162 was signed. The remaining portions of paragraph 35 of the Complaint include a quote from a small portion of Governor Brewer's statement. HB 2162, SB 1070 (as amended), and Governor Brewer's statement speak for themselves. 36. Defendant-Intervenor denies the allegations contained in paragraph 36 of the

Complaint. To the extent the allegations are intended to challenge Section 1 of SB 1070, no response is necessary because the Court granted defendants' Motion to Dismiss with respect to Section 1. 37. Defendant-Intervenor denies the allegations contained in paragraph 37 of the

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Complaint. To the extent that paragraph 37 attempts to summarize SB 1070, SB 1070 speaks for itself. Defendant-Intervenor denies that the summaries contained in paragraph 37 are accurate and complete. Defendant-Intervenor further denies any characterizations of SB 1070. Defendant-Intervenor affirmatively states that no response is necessary to the extent the allegations are intended to challenge Section 1 of SB 1070 because the Court

21 22 23 24 25 influence on foreign relations, trade, national security, etc., SB 1070 speaks for itself as 26 27 28 does the article cited in paragraph 38. Defendant-Intervenor denies that the summaries contained in paragraph 38 are accurate and complete, and further denies any 8 granted defendants' Motion to Dismiss with respect to Section 1. 38. Defendant-Intervenor denies the allegations contained in paragraph 38 of the

Complaint. To the extent that paragraph 38 attempts to summarize SB 1070 and its

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

characterizations of SB 1070. Defendant-Intervenor affirmatively states that no response is necessary to the extent the allegations are intended to challenge Section 1 of SB 1070 because the Court granted defendants' Motion to Dismiss with respect to Section 1. 39. Defendant-Intervenor is without sufficient information and knowledge to admit or

deny whether other states are "contemplating" similar legislation. Defendant-Intervenor denies all remaining allegations contained in paragraph 39 of the Complaint. Section 2 of SB 1070 40. Defendant-Intervenor admits that paragraph 40 of the Complaint includes quotes of

small portions of Section 2 of SB 1070 and paragraph 40 attempts to summarize portions of Section 2 of SB 1070. SB 1070 speaks for itself and Defendant-Intervenor denies that the summaries contained in paragraph 40 are complete. Defendant-Intervenor further denies any characterizations of SB 1070. 41. Defendant-Intervenor admits that paragraph 41 of the Complaint includes quotes of

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small portions of Section 2 of SB 1070 and paragraph 41 attempts to summarize and characterize Section 2 of SB 1070. SB 1070 speaks for itself and Defendant-Intervenor denies that the summaries contained in paragraph 41 are complete. Defendant-Intervenor further denies any characterizations of SB 1070 and the truth of any such

21 22 23 24 25 43. 26 27 28 Complaint. To the extent that paragraph 43 attempts to characterize, summarize, and quote from small portions of SB 1070, SB 1070 speaks for itself. Defendant-Intervenor 9 Defendant-Intervenor denies the allegations contained in paragraph 43 of the characterizations. All remaining allegations contained in paragraph 41 are denied. 42. Defendant-Intervenor denies the allegations contained in paragraph 42 of the

Complaint.

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

denies that the summaries in paragraph 43 are accurate and complete. DefendantIntervenor further denies any characterizations of SB 1070. 44. Defendant-Intervenor denies the allegations contained in paragraph 44 of the Defendant-Intervenor affirmatively states that inquiries regarding

Complaint.

immigration status under section 2 of SB 1070 are specifically permitted by 8 U.S.C. § 1373(a) and 8 U.S.C. § 1644. 45. Defendant-Intervenor denies the allegations contained in paragraph 45 of the

Complaint. Section 3 of SB 1070 46. Defendant-Intervenor admits that paragraph 46 of the Complaint includes quotes of

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small portions of Section 3 of SB 1070 and that paragraph 46 attempts to summarize portions of Section 3 of SB 1070. SB 1070 speaks for itself. Defendant-Intervenor denies that the summaries in paragraph 46 are complete. Defendant-Intervenor further denies any characterizations of SB 1070 contained in paragraph 46. 47. Defendant-Intervenor denies the allegations contained in paragraph 47 of the

Complaint. 48. Defendant-Intervenor denies the allegations contained in paragraph 48 of the

21 22 23 24 25 any characterizations of SB 1070. 26 27 28 49. Defendant-Intervenor denies the allegations contained in paragraph 49 of the Complaint. To the extent that paragraph 48 attempts to characterize or summarize portions of SB 1070, SB 1070 speaks for itself. Defendant-Intervenor denies that the summaries contained in paragraph 48 are accurate and complete. Defendant-Intervenor further denies

Complaint to the extent that such paragraph attempts to characterize SB 1070. SB 1070 10

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

speaks for itself. Defendant-Intervenor denies the characterizations of SB 1070. Section 4 of SB 1070/A.R.S. § 13-2319 50. Defendant-Intervenor admits that paragraph 50 of the Complaint includes quotes of

small portions of A.R.S. § 13-2319. Paragraph 50 attempts to summarize portions of Section 3 of SB 1070. SB 1070 speaks for itself. Defendant-Intervenor denies that the summaries contained in paragraph 50 are complete, and further denies any characterizations of SB 1070. 51. Defendant-Intervenor denies the allegations contained in paragraph 51 of the

Complaint. To the extent that paragraph 51 attempts to summarize and characterize A.R.S. § 13-2319 and 8 U.S.C. § 1324 and immigration law, these statutes and laws speaks for themselves and Defendant-Intervenor denies the characterizations of these laws. Section 5 of SB 1070 52. Defendant-Intervenor admits the allegations contained in paragraph 52 of the

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Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent the allegations are intended to challenge Section 5 of SB 1070 that creates A.R.S. §§ 13-2928(A) and (B) because the Court granted defendants' Motion to Dismiss based on plaintiff's failure to state a claim with respect to portions of Section 5. 53. Defendant-Intervenor admits that paragraph 53 of the Complaint includes quotes of

small portions of A.R.S. § 13-2319. Paragraph 53 attempts to summarize portions of A.R.S. § 13-2319, but A.R.S. § 13-2319 speaks for itself. Defendant-Intervenor denies

26 27 28 that the summaries contained in paragraph 53 are complete. Defendant-Intervenor further denies any characterizations of A.R.S. § 13-2319. 11

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

54.

Defendant-Intervenor denies the allegations contained in paragraph 54 of the

Complaint. 55. Defendant-Intervenor denies the allegations contained in paragraph 55 of the

Complaint. To the extent that Paragraph 55 attempts to summarize and characterize A.R.S. § 13-2929 and 8 U.S.C. § 1324 and immigration law, these statutes and law speak for themselves. Defendant-Intervenor denies the characterizations of these laws.

Defendant-Intervenor affirmatively states that no response is necessary to the extent the allegations are intended to challenge Section 5 of SB 1070 based on preemption by federal immigration law for purposes of a facial challenge or based on the dormant Commerce Clause because the Court granted defendants' Motion to Dismiss on these grounds. 56. Defendant-Intervenor denies the allegations contained in paragraph 56 of the

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Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent the allegations are intended to challenge Section 5 of SB 1070 that creates A.R.S. §§ 13-2928(A) and (B) because the Court granted defendants' Motion to Dismiss based on plaintiff's failure to state a claim with respect to portions of Section 5. Section 6 of SB 1070 57. Defendant-Intervenor admits that paragraph 57 of the Complaint includes quotes of

21 22 23 24 25 characterizations of A.R.S. § 13-3883 and SB 1070. 26 27 28 58. Defendant-Intervenor denies the allegations contained in paragraph 58 of the small portions of A.R.S. § 13-3883. Paragraph 57 attempts to summarize portions of Section 6 of SB 1070, but A.R.S. § 13-3883 and SB 1070 speak for themselves. Defendant-Intervenor denies that such summaries are complete, and further denies any

Complaint. To the extent that paragraph 58 attempts to summarize and characterize 12

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

A.R.S. § 13-3883 and SB 1070, these statutes and laws speak for themselves. DefendantIntervenor denies the characterizations of these laws. 59. Defendant-Intervenor denies the allegations contained in paragraph 59 of the

Complaint. To the extent that paragraph 59 attempts to summarize and characterize A.R.S. § 13-3883 and SB 1070, these statutes and laws speak for themselves. DefendantIntervenor denies the characterizations of these laws and the truth of any such characterizations. 60. Defendant-Intervenor denies the allegations contained in paragraph 60 of the

Complaint. First Cause of Action ­ Violation of the Supremacy Clause 61. 62. Defendant-Intervenor incorporates the responses from paragraphs 1 through 60. Defendant-Intervenor denies the allegations contained in paragraph 62 of the

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Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent the allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I), (J), (K), and (L) of SB 1070 because the Court granted defendants' Motion to Dismiss finding the Complaint failed to state a claim and the absence of facts sufficient to find Section 2(H) is preempted on its face.

21 22 23 24 25 26 27 28 Motion to Dismiss finding the Complaint failed to state a claim and the absence of facts sufficient to find Section 2(H) is preempted on its face. 13 63. Defendant-Intervenor denies the allegations contained in paragraph 63 of the

Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent the allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I), (J), (K), and (L) of SB 1070 because the Court granted defendants'

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

Second Cause of Action ­ Preemption Under Federal Law 64. 65. Defendant-Intervenor incorporates the responses from paragraphs 1 through 63. Defendant-Intervenor denies the allegations contained in paragraph 65 of the

Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent the allegations are intended to challenge Section 1 and subsections 2(A), (C) through (G), (I), (J), (K), and (L) of SB 1070 because the Court granted defendants' Motion to Dismiss finding the Complaint failed to state a claim and the absence of facts sufficient to find Section 2(H) is preempted on its face. Third Cause of Action ­ Violation of the Commerce Clause 66. 67. Defendant-Intervenor incorporates the responses from paragraphs 1 through 65. Defendant-Intervenor denies the allegations contained in paragraph 67 of the

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Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent that the allegations are intended to challenge Section 5 of SB 1070 based on the restriction of interstate movement of aliens or the Commerce Clause because the Court granted defendants' Motion to Dismiss on those grounds. Defendant-Intervenor denies the allegations contained in paragraph 68 of the

Complaint. Defendant-Intervenor affirmatively alleges that no response is necessary to the extent that the allegations are intended to challenge Section 5 of SB 1070 based on the restriction of interstate movement of aliens or the Commerce Clause because the Court granted defendants' Motion to Dismiss on those grounds. GENERAL DENIAL Defendant-Intervenor denies all allegations not specifically admitted. 14

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

70.

Defendant-Intervenor denies all legal conclusions and any allegations based on

hearsay. AFFIRMATIVE DEFENSES 1. Plaintiff's Complaint fails to state a claim upon which relief can be granted. The

Court dismissed the following claims or those portions of the Complaint based on the following: Section 1, Subsections 2(A), (C) through (G), (H), (I), (J), (K), and (L), portions of Section 5 of SB 1070 that created A.R.S. § 13-2928(A) and (B), and portions of Section 5 of SB 1070 that created A.R.S. § 13-2929. 2. Defendant-Intervenor complied with all relevant federal, state and local laws,

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including the Arizona Constitution and the Constitution. 3. 4. Defendant-Intervenor has a right to protect its citizens. Arizona has a right to self-defense under the Constitution, particularly when the

federal government fails to protect it. 5. 6. Plaintiff lacks both Article III and prudential standing to bring this Action. Plaintiff has failed to name DHS, DOJ, and the State Department as the real

parties-in-interest. 7. Any alleged foreign policy implications were caused by individuals other than any

21 22 23 24 25 and an individual state under the Constitution. 26 27 28 9. Plaintiff has unclean hands to the extent it has failed to enforce the immigration defendant in this matter, including plaintiff and its agencies and officials. 8. Pursuant to the Constitution, plaintiff should have brought this matter in the United

States Supreme Court as it has original jurisdiction of lawsuits between the United States

laws and otherwise fulfill its duties as required by law and the Constitution and the 15

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executive branch of the federal government has failed to enforce the decisions Congress made when it enacted the immigration laws. 10. Defendant-Intervenor acted under the State's broad police power under the 10th

Amendment of the Constitution. 11. Defendant-Intervenor will be irreparably harmed if plaintiff obtains the relief

sought in this matter. 12. Plaintiff's facial challenge to the constitutionality of SB 1070 is barred to the

extent that it relies on hypothetical or speculative circumstances. 13. SB 1070 is not preempted by federal law or the Constitution. SB 1070 does not

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conflict with federal law, does not constitute an improper regulation of immigration, and Congress has not fully occupied the field. 14. SB 1070 does not violate the Commerce Clause of the Constitution or discriminate

or burden interstate commerce. 15. The allocation of power contained in the Commerce Clause does not authorize

Congress to regulate state governments' regulation of interstate commerce. 16. Defendant-Intervenor does not know if additional affirmative defenses may prove

to have some application and, therefore, incorporate by reference the additional defenses 21 22 23 24 25 thereby; 26 27 28 B. Award Defendant-Intervenor its costs and reasonable attorney fees, and contained within Rule 8(c) of the Fed. R. Civ. P. WHEREFORE, having fully answered, Defendant-Intervenor requests that the Court: A. Dismiss plaintiff's complaint with prejudice and that plaintiff take nothing

other expenses pursuant to any applicable statutes; 16

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

C.

Award any such other and further relief as the Court deems appropriate. Respectfully Submitted, KERCSMAR & FELTUS PLLC By: s/ Geoffrey S. Kercsmar Geoffrey S. Kercsmar (#20528) Gregory B. Collins (#023158) 6263 North Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 Tel: [phone] Paul J. Orfanedes (Motion for admission pro hac vice to be filed) James F. Peterson (Motion for admission pro hac vice to be filed) Michael Bekesha (Motion for admission pro hac vice to be filed) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 Tel: [phone] Attorneys for Proposed Intervenor/Defendant the Arizona State Legislature

Dated: February 11, 2011

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Kercsmar & Feltus PLLC 6263 N. Scottsdale Road, Suite 320 Scottsdale, Arizona 85250 [phone]

CERTIFICATE OF SERVICE I hereby certify that on February 11, 2011, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on records, including:

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Tony West Dennis K. Burke Arthur R. Goldberg Varu Chilakamarri Joshua Wilkenfeld U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530

s/ Kelli Dunlap

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