The ‘Secure Border Act’ will cost Arizona millions. And that might be unconstitutional

Voters in 2004 enacted strict rules for ballot measures that require spending, and the GOP-backed immigration enforcement bill doesn’t address them.

By Gloria Rebecca Gomez, Arizona Mirror

Arizona Republicans want to give local police officers permission to arrest migrants, but there’s no plan to cover the costs that law enforcement officials and even the GOP backers of the proposal say it will incur—and failing to account for that price tag might make the entire proposal unconstitutional.

Packaged into a ballot referral to evade Gov. Katie Hobbs’ veto, the “Secure the Border Act” would ask voters in November to decide whether Arizona should be allowed to enforce immigration law, in blatant disregard of decades of court rulings which determined that power is constitutionally reserved for the federal government. The referral would make it a state crime for migrants to cross the border anywhere except a port of entry, and it would allow Arizona police officers to arrest them and Arizona judges to write orders of deportation.

But Republicans have refused to allocate any funding to make the proposal’s requirements a reality, despite repeated warnings from law enforcement and state officials about the inevitable costs.

And that could be a major problem: Arizona’s Constitution mandates that any ballot measure that increases state spending must not only provide money to pay for those costs, but that money can’t come out of the state’s general operating account.

GOP lawmakers, law enforcement agree it will cost money

While the proposal seeks to bolster the authority of the state’s law enforcement agencies and courts, it doesn’t address how to pay for their new roles. Initial estimates, however, are staggering. In Texas, where GOP lawmakers passed a law last year that the Arizona version is modeled after, more than $11 billion of taxpayer money has been set aside to fund the state’s restrictive border policies.

A report from a nonpartisan think tank projected that taxpayers in Arizona will be on the hook for at least $325 million a year if the referral is approved. Arizona’s state prisons chief estimates that the Department of Corrections, Rehabilitation and Reentry will be forced to shoulder $225 million over the next five years because the proposal requires the department to house migrants arrested under its provisions if the counties where the arrests occurred don’t have the capacity to do so.

And local law enforcement officials, including those who support the proposal, have sounded the alarm over the lack of dedicated funding. Yavapai County Sheriff David Rhodes and Cochise County Sheriff Mark Lamb, two Republicans who have frequently touted their support for the ballot referral, told lawmakers on May 8 that law enforcement agencies will need the state to cough up money so they can carry out the proposal’s directives.

“If the majority of voters in this state approve this bill, if they vote to pass this bill, anticipating that local law enforcement will become more involved in border security, border enforcement, then we’re going to be coming to all of our elected leaders and asking you to honor the will of the voters and provide the resources necessary to enforce the bill that they passed,” Rhodes told lawmakers during a joint hearing held by the Senate Military Affairs, Public Safety & Border Security and the House Judiciary Committees.

Lamb added that the financial burden on counties and law enforcement agencies is still unclear and must be addressed.

“We 100% appreciate the effort to try to help us and to try to help secure our communities, but we’re also asking the same questions: What does the cost look like?” he asked.

San Luis Police Chief Nigel Reynosa, whose department serves a community on the Arizona-Mexico border, spoke in opposition to the ballot referral at a May 22 news conference, just hours before GOP lawmakers in the state Senate unanimously approved it.

“We need funding for staffing and programs to make an impact in the community we serve,” Reynosa said. “As long as (federal) immigration policies remain the same, the border issues will continue, and the burden will fall on local agencies. I don’t want my officers with the responsibility to do federal enforcement, and without the proper funding that our department needs, I cannot support this version of the bill.”

GOP lawmakers, however, have consistently waved away concerns about the costs to taxpayers. Senate President Warren Petersen, who co-sponsored the ballot referral and has made it a key priority for the legislative session, said during a May 8 news conference that the benefits far outweigh the drawbacks.

“We will always fund public safety, obviously,” he said. “You know what the true costs are? The true costs are the law-breaking and the insane amount of people—we are going to save money by creating a deterrent.”

And on the day the Senate passed the measure, Sen. John Kavanagh recognized that it would require state money to implement—though he added that local law enforcement agencies would also have to eat some of the costs.

“I consider securing our border to be a joint responsibility between the sheriffs and the state. And I’m sure that they’ll be contributing what they can, and in terms of the (state) budget: whatever they need to secure our border,” the Fountain Hills Republican said. “It is the most important issue facing Arizona residents and the country. Polls show it is the number one issue, and I will not spare one penny to secure that border and take anybody who came over illegally and get them out.”

It’s unlikely that any funding allocations will be added to the proposal at this juncture. The state House of Representatives is set to consider the ballot referral on June 4, and House Speaker Ben Toma told Axios Phoenix that he doesn’t expect any changes will be made. Without any amendments, the measure will then go directly to the ballot.

Conflicts with the Arizona Constitution’s mandates on funding

In 2004, Arizona voters approved Proposition 101, which amended Arizona’s constitution by mandating that any ballot initiative or referendum “proposing state revenue expenditure, establishing a fund or allocating funding,” must identify a funding source to cover its costs. And that funding source cannot come from the state’s general fund.

Jim Barton, a Democratic attorney who regularly works with ballot initiative campaigns, spoke with the Arizona Mirror generally about Prop. 101’s requirements and said that defining which costs are caused by a ballot measure can get complicated.

Indirect costs that weren’t contemplated by a proposal aren’t a reason to void a ballot measure. In 2016, after Arizona voters passed Proposition 206, which increased the minimum wage for private sector workers, the Arizona Chamber of Commerce and Industry sued, alleging that raising wages forced the state to pay contractors more in order to remain competitive.

But that argument failed to convince the Arizona Supreme Court, which ruled that Prop. 206 was constitutional.

“The bill itself has to cause an expenditure,” Barton said.

Where it gets tricky is when a proposal doesn’t include an explicit requirement to spend resources but does lead to increased costs. Barton noted that a regulator tasked with enforcing a smoking distance limit doesn’t incur extra costs if that distance is changed, but adding responsibilities to a regulator’s job description might.

“They’d have to enforce a different number, but it wouldn’t require hiring new people, it wasn’t going to require publishing new books,” he said. “But if you require the regulator to do something they’ve never done before, or you require them to obtain new expertise or hire new employees, that’s probably a direct requirement.”

It’s clear that the Republicans backing the Secure the Border Act understand how the constitution’s provision works—and how to comply with it. Another potential ballot measure that is awaiting approval in the Senate would change a host of election laws, including some changes that would require county elections departments to spend more for things like more employees and new equipment.

But that proposal, which was authored by Republicans and is likely to win only GOP support at the Capitol, includes funding. And, importantly, the $11 million it would give to counties to cover those new costs wouldn’t come from the state’s general fund, but would be drawn out of the Clean Elections Fund.

Critics of the Secure the Border Act have pointed out that Arizona judges don’t have the legal expertise to enforce immigration law, and requiring them to oversee deportation proceedings would necessarily mean forcing them to undergo training. In a memo, the Arizona Department of Corrections, Rehabilitation and Reentry wrote that the proposal would require it to hire more staff to deal with the influx of arrested migrants, and a dearth of beds could lead the department to consider building a new prison.

The Arizona Association of Border Counties urged legislative leaders to vote down the proposal, warning that it would strain already understaffed and underfunded law enforcement agencies.

“Requiring local police or sheriff to get into the business of detaining and deporting undocumented migrants is above and beyond the call of duty, not to mention that local authorities do not have the necessary resources to fulfill these purported tasks,” reads the letter.

Any lawsuit against the ballot referral based on the requirements of Prop. 101, however, would have to be launched after voters approved it. Challenges on a ballot proposal’s substance aren’t considered ripe by the courts until after voters have had a chance to weigh in.

And if that happens, the ultimate determination of whether a ballot measure would directly lead to increased spending would lie in the hands of judges.

Don’t forget the constitution’s single-subject rule

Another constitutional mandate that critics say the proposal appears to violate is the single-subject rule. While GOP lawmakers have denied that the Secure the Border Act is an immigration measure, and instead tout it as focused on border policy, its wide-ranging effects appear to contradict that. Along with making crossing the state’s southern border a state crime, it also criminalizes undocumented Arizonans who submit false information to apply for jobs or public benefits. And it creates an entirely new class of felony offense, with harsh prison sentences, for people who knowingly sell fentanyl that later results in someone’s death.

A lengthy clause titled “findings and declaration of purpose” in the proposal’s introduction attempts to tie together all of its provisions as the consequences of an “unsecured border.” The punishments for falsified documentation is justified as a bid to reduce the “incentive” for illegal immigration and the strict penalties for fentanyl sales that result in death are explained as “increasing punishments for criminals who fuel the crisis at the southern border.”

The Arizona Constitution requires that “every act shall embrace but one subject and matters properly connected therewith.” Unlike challenges made under Prop. 101, violations of the single-subject rule can be considered by the courts before proposals make it onto the ballot.

But violations of the single-subject rule are even more subject to interpretation. And, Barton said, unless violations are egregious, Arizona courts have historically only loosely enforced the single-subject rule.

In 2022, lawmakers attempted to incorporate unrelated bills into the state budget to ensure their passage, including bills banning schools from requiring face masks or COVID-19 vaccinations and a prohibition on “critical race theory” lessons in schools. The Arizona Supreme Court ultimately struck down the unrelated bills from the state budget for violating the single-subject rule.

Valley attorney Tom Ryan said that the ballot referral’s disparate range of subjects clearly violates the constitutional requirement to focus on just one subject.

“The point of our single-subject requirement in our constitution is to prevent hiding skunks in the woodpile, so to speak,” he said. “And this one does that.”

Ryan was unconvinced by arguments from Republicans that the proposal’s provisions all fall under the umbrella of border security.

“Drug interdiction is not the same thing as migrant interdiction,” he said.

On top of violating the single-subject rule, sending such a sweeping proposal to voters is unfair, Ryan said. If the proposal makes it onto the November ballot, voters could be faced with a quandary: Some might not agree with all of the proposal’s provisions, but must decide to either support it in its entirety or throw it out completely.

Ryan added that it’s also likely that the ballot referral violates a long understood rule that state lawmakers must not bind the actions of future legislatures, a practice the Arizona Supreme Court has consistently ruled is unconstitutional. According to Ryan, greenlighting a proposal like this without addressing the funding issue and leaving it up to lawmakers in next year’s legislative session to figure out constitutes a violation of that ruling.

“When you pass something that’s an unfunded mandate and say, ‘We’ll do it in the future,’ I think you’re irrevocably binding a successor legislature to pay for the unfunded mandate,” he said.

Toma, who has been a driving force behind the ballot referral, is running to represent a West Valley district in Congress and won’t be back next year to contend with the consequences. And the legislature itself is likely to see a shakeup in November, as lawmakers seek reelection. Campaign Action