Ducey sues feds over shipping containers, invokes ‘invasion’ theory

On Friday, Gov. Doug Ducey fired back at federal agencies demanding the removal of his shipping containers from the Arizona-Mexico border, filing a lawsuit that says land at the border shouldn’t be under federal jurisdiction and the state has a constitutional right to take action. 

The strip of land on the border, which has been the subject of recent disputes between Ducey and federal agencies, is known as the Roosevelt Reservation, established in a proclamation issued in 1907 by President Theodore Roosevelt as “necessary for the public welfare.”

Last week, the Bureau of Reclamation wrote to challenge the 130 double-stacked shipping containers that Ducey placed along the border near Yuma as a makeshift border barrier, saying their placement on federal and tribal lands is illegal. An attempt to use containers to close a 10-mile gap in Cochise County was stopped by the U.S. Forest Service, which threatened to make arrests, according to the lawsuit. 

Ducey’s lawsuit, filed against both agencies, argues Roosevelt had no right to declare that area part of federal land without congressional approval, and thus that land should not lie under federal jurisdiction, but rather be the state’s to decide what to do with. 

“The Roosevelt Reservation was outside of President Roosevelt’s authority to issue, and as such is unconstitutional as a matter of law and has no force or effect,” Ducey’s attorneys claim. 

The lawsuit further argues that Arizona has the right to protect itself against an invasion when the federal government has failed to act, citing Article 1, Section 10 of the U.S. Constitution — an argument put forth earlier this year by Attorney General Mark Brnovich which was initially ignored by Ducey. 

While Brnovich advocated for deploying military forces to the border, Ducey uses the argument to advance the legality of the shipping containers. The legal argument has never been tested in court, but constitutional scholars say it is grossly unconstitutional.

Brnovich’s radical and lawless border war opinion normalizes extremism and sets the stage for violence

“The crises place the State and its citizens in such imminent danger as will not allow delay, which is why Governor Ducey entered and seeks to enforce (his executive order) to protect the health and safety of Arizona citizens at the southern border and throughout the State,” reads the brief. “Governor Ducey’s actions authorizing DEMA to close gaps in the border wall also result from the federal government’s failure to protect the State pursuant to the U.S. Constitution.” 

The lawsuit requests that the court rule the Roosevelt Reservation unconstitutional and declare that Arizona has the right to take steps to protect itself, including using the shipping containers as a barrier. Alternatively, the lawsuit asks the court to give the state concurrent jurisdiction over the border area with the federal agencies — or at the very least rule the situation at the border a “public nuisance,” which the state would be able to deal with. 

In a statement, Ducey said the lawsuit was a response to federal efforts to interfere with the state’s actions, and criticized President Joe Biden’s administration for its lack of action. Earlier this week, U.S. Customs and Border Protection called on the state to remove the containers ahead of plans to install mesh fencing and vehicle gates near Yuma next year. 

“Arizona is taking action to protest on behalf of our citizens. With this lawsuit, we’re pushing back against efforts by federal bureaucrats to reverse the progress we’ve made,” Ducey said. “The safety and security of Arizona and its citizens must not be ignored. Arizona is going to do the job that Joe Biden refuses to do — secure the border in any way we can. We’re not backing down.”