WASHINGTON -- Can states be expected to pick up the costs dumped on them by the federal government's immigration policies?
At least five states so far have said "no" and are suing the federal government for the more than $7 billion total they have spent to provide services to illegal aliens.
The complaints, all filed separately between April and August, claim that the federal government, by failing to carry out its immigration policies, has forced the states to "carry a significant and increasingly disproportionate financial burden," according to one of the complaints.
The states -- California, Florida, Arizona, New Jersey, and Texas -- have the highest illegal immigrant populations in the country, state sources said.
The lawsuits also allege that the federal government is compromising states' sovereignty by forcing them to use revenues collected for state priorities to carry out what the states contend is a failed federal immigration policy.
The states point to the large number of illegal immigrants in the country as proof that Immigration and Naturalization Services is not doing its job.
The U.S. Department of Justice has filed a motion to dismiss four of the six cases, and plans to file motions to dismiss for the remaining cases before the deadlines expire. California filed two suits.
Some state officials believe some of the cases will end up before the Supreme Court.
Even though the Supreme Court has set a precedent in favor of states' rights in the past 10 to 15 years, these suits have a slim chance of winning in the high court, said Kenneth L. Karst, law professor at the University of California at Los Angeles.
"There's nobody here who thinks the lawsuit will succeed on the merits," Karst said, speculating that the suits' use of the 10th Amendment, which stipulates that powers not retained by Congress automatically revert to the states, will not work.
"The 10th Amendment might serve as a kind of defense against federal laws that impose on the states. But the idea that the amendment itself generates a cause of action against the U.S., to put it kindly, is not well developed," he said.
The complaints simply don't use the 10th Amendment effectively, said Jonathan Varat, a UCLA law professor.
"They're trying to use the 10th amendment as a sword, not as a shield, and that would be pretty far-fetched. It's a pretty aggressive use of it, which is okay, but it doesn't even work that often as a shield," Varat said.
California field two suits, one for reimbursement of health care costs and the other for incarceration and subsequent parole supervision costs of illegal immigrants convicted of felonies.
The California suits ask for almost $2 billion in combined reimbursement.
All of the complaints cite laws passed by Congress in the mid-1980s as the basis for the suits. In 1986 Congress passed the Immigration and Reform Act, which called for Congress to appropriate money to the U.S. attorney general's office to reimburse the states for incarceration of illegal immigrants.
The federal government's motion to dismiss grants that Congress passed the law but says no money has been appropriated and that therefore there is no basis for a claim. The dismissal motion also argues that the states' complaints do not make the case that their increased costs for illegal immigrants "has affected the form or function" of the state government.
California, Florida, and Texas ask for reimbursement of health care costs as well as incarceration costs for illegal immigrants, but the federal government ignored those claims as well.
"These claims are baseless. The Medicaid program is completely voluntary, with the federal government reimbursing the states for a portion of the costs of specified medical services provided under a qualified plan to eligible persons," according to the federal government's motion to dismiss one California case.
The New Jersey complaint asks for a $50.5 million reimbursement based, as in the other suits, on the 1986 immigration law.
New Jersey's suit says the state hopes to force the federal government to take fiscal responsibility for its immigration policy.
New Jersey "has exhausted all other political and practical remedies, and given the defendants' continuous and steadfast failure to provide reimbursement," any efforts besides the lawsuit would be "futile," according to the complaint.
"New Jersey should no longer be forced to bear the costs of an ineffective federal immigration policy. The federal government should put its money where its policy is and take responsibility for the impact of its failure to stem the tide of illegal immigration," said Republican Gov. Christine Todd Whitman when the suit was filed in July.
Florida is asking for about $1.5 billion in reimbursement. The amount was determined through a state office of planning and budgeting study.
The study "clearly illustrates that the federal government must change either its immigration policies or its funding priorities and remove this unfair burden from the backs of Floridians," Democrat Gov. Lawton Chiles said in a letter to members of the state legislature.
But, the first line of the federal reply to the Florida complaint showed the regard in which the government holds the complaint.
"The flimsy nature of [Florida's] complaint in this case is best illustrated by the lengths to which they must go in their brief, both literally and logically, and the absence of any authority sanctioning the novel and unprecedented claims they advance," the Justice Department said in its motion.
"This is a political suit, not a lawsuit," UCLA's Varat said. As far as the prospects of the suits' advancing through the courts, Varat said, "I think there's a good chance" the lawsuits will be dismissed outright, although "I'm sure those governors hope it's after the election and not before. I don't think they really expect to win."
Four of the five governors involved in the suits are up for re-election in November. New Jersey will elect its next governor in 1997.
Texas filed suit Aug. 3 and asked for reimbursement for a six-year period totaling more than $5 billion. The suit alleges "that the federal government has violated its constitutional responsibility to control immigration and to bear the financial costs of its immigration policies," according to a press release from the state attorney general's office.
Unlike California, the other states filing complaints are asking for a combined reimbursement for corrections and incarceration, public education, health care, and social services.
Kevin Herglotz, a spokesman in California Republican Gov. Pete Wilson's office, said the state is considering a third lawsuit dealing with reimbursement for education costs.
"We're in a crisis situation here," Herglotz said referring to California's finances.
The Washington Legal Foundation, a nonprofit public interest law and policy center, filed a friend-of-the-court brief in the Florida case on behalf of about 41 members of the U.S. Congress.
The brief was filed because of the "inadequate enforcement of federal immigration laws, which has long imposed a servere financial burden upon the legal residents of the states," according to the brief.
The lawsuits are "definitely on the cutting edge," said David A. Price, president for litigation affairs at the Washington Legal Foundation.
"It's true that sometimes brandnew legal theories or constitutional theories take hold, but this would be quite a novelty, quite against the tide of modern decisions," UCLA's Karst said.
"It will be an uphill battle for the states," and they will have to lay out an "airtight legal case" before the federal courts will grant that kind of money, Price said.
But, he said, if you look at the facts, "it's hard to avoid the conclusion" that the federal government owes the states for a failed immigration policy."