Arizona Court of Appeals, Division One rejected three constitutional challenges to the Secure the Border Act.

Arizona voters adopted the Secure the Border Act as Proposition 314 in November 2024. The Act contains three prominent provisions: (1) the SAVE Requirement directs state and local agencies to use a federal verification system to confirm the immigration status of public-benefit applicants; (2) the Illegal Entry System creates a state system to police and enforce “illegal entry”; and (3) the Trigger Provision bars enforcement of the Illegal Entry System until Texas’s S.B. 4, or a similar law in another state, has been in effect for 60 consecutive days (A.R.S. § 13-4295.04).

A civil rights organization and two individual plaintiffs sued the State for declaratory and injunctive relief, alleging that the Secure the Border Act violates the Arizona Constitution. The superior court dismissed the complaint with prejudice. The Plaintiffs appealed. The Arizona Court of Appeals reviewed the dismissal de novo and affirmed on independent grounds supported by the record.

First, Plaintiffs argued the SAVE Requirement and certain provisions of the Illegal Entry System violated the Revenue Source Rule, Ariz. Const. art. 9, § 23(A), by requiring spending without a funding source. The appellate court held that Plaintiffs failed to state a cognizable claim for relief because the rule applies only when an initiative affirmatively requires an expenditure of state revenues or expressly requires state action that necessarily demands an expenditure, which neither the SAVE Requirement nor the Illegal Entry System did. The Court reasoned that the federal government, not the Act, determines the verification cost associated with the SAVE Requirement, which was presently nothing. And, under the Illegal Entry System the State might perform certain functions, but county or local agencies might as well—so the Act did not mandate that the State would always bear costs.

Next, the plaintiffs asserted that the Illegal Entry System violated the Distribution of Powers Provision, Ariz. Const. art. III, by allowing the Legislature to define the probable cause required to arrest a noncitizen for “illegal entry.” The appellate court found that the organizational plaintiffs lacked standing to pursue this claim; their allegation that members who shared the race, ethnicity, or national origin of immigrants entering from the southern border were vulnerable to “misapplication” was speculative and they could not establish actual injury by alleging that they would divert resources to educate members about the Act. The Court also noted that the probable cause provision mirrored the existing Fourth Amendment standard.

Last, the plaintiffs argued that the Trigger Provision unlawfully delegated Arizona’s legislative power to Texas. The appellate court held that plaintiffs failed to state a claim because the Legislature may condition a statute’s operation on a future contingency without unconstitutionally delegating lawmaking authority.

Vice Chief Judge Weinzweig delivered the opinion of the Court, in which Presiding Judge Williams and Judge Foster joined.

Posted by: Payslie M. Bowman