PHOENIX — Gov. Janet Napolitano ordered additional National Guard troops to be stationed along the state's southern border Wednesday — but made it conditional on lawmakers funding it on her terms, putting the deployment in legal limbo.
In her order, Napolitano said U.S. Defense Secretary Donald Rumsfeld has yet to respond to her request for federal aid. Napolitano said the state "can no longer wait for such federal assistance and must begin doing what it can with existing state resources."
Lawmakers on Wednesday did give final approval to a $10 million appropriation that requires she spend it to put more troops along the border – exactly what Napolitano wants to do.
But Napolitano said she will veto the bill when it reaches her desk today, eliminating the funding, because she views the mandate as an unconstitutional usurping of her authority.
"I think anybody who is in the military or who is in the Guard knows that there is one commander in chief in this case. One, not 90," she said. She accused lawmakers of "playing a game" in approving the version her staff told them was unacceptable.
"All they want to do is score points, which I think are empty and hollow," she said.
But Rep. John Allen, R-Scottsdale, who wrote the legislation, said it is Napolitano who is playing games by declaring an emergency last year, insisting she wants Guard troops on the border – and then vetoing a bill that requires her to use Guard troops in case of emergency.
"This is a time for the governor to step up and do what she asked," he said. "If she wants to blame the problems of the border on me because I didn't send her some perfect bill, well, I'm sorry, that is not appropriate."
House Speaker Jim Weiers said staff attorneys have concluded the measure is constitutional, suggesting Napolitano is looking for an excuse not to deploy more troops.
"The governor, I believe, is using the cover of a constitutional issue as an escape route to not doing what's right by the people of this state," he said.
Weiers said Napolitano "got a lot of fanfare" when she declared the state of emergency for the border last year. He said this legislation gives Napolitano resources to deal with that emergency.
"But don't step back and hide behind the constitution," he said. "Don't use the headlines as a reason to protect your office and ignore the National Guard to protect the border."
Even if the two sides could agree on verbiage for the funding authority, another issue remains: exactly what the additional Guard troops would do.
There have been troops along the border since 1988 – long before Napolitano became governor – in what Maj. Paul Aguirre described as support roles like aerial surveillance, maintenance and helping law enforcement, though not in actually making arrests or conducting patrols. At present there are about 100 unarmed soldiers in Southern Arizona, paid for with federal funds.
Aguirre said it costs $32,000 a day to station 100 Guard troops in Southern Arizona.
Napolitano said she wants additional troops doing things like helping to staff border checkpoints and conducting cargo, vehicle and electronic identification checks, assisting local law enforcement and working with the Department of Public Safety in its campaign to keep stolen vehicles from entering Mexico.
But Weiers said Republicans want troops to actually stop people who have crossed the border illegally, saying the support role "has not worked" to stem the flow. And Sen. Dean Martin, R-Phoenix, noted there are military police units within the Arizona Guard.
Napolitano, however, rejected having troops there in a police role.
"They are not there to militarize the border," she said. "We are not at war with Mexico."