Arizona Attorney General Mark Brnovich has officially ruled that the chaos on the Mexican border constitutes an “invasion” under the U.S. Constitution, clearing the way for the state’s governor to defend the boundary with police or troops of his own.
Mr. Brnovich, a Republican, said America’s founding document specifically gives states the right to wage war in case of an invasion, particularly when the federal government has failed to protect the states.
The unprecedented legal ruling, issued late Monday, sets a new political marker for border-state voters and politicians, and marks the latest in a back-and-forth between states and the feds over how to handle the waves of illegal immigrants who’ve streamed across the boundary in recent years.
“The on-the-ground violence and lawlessness at Arizona’s border caused by cartels and gangs is extensive, well-documented, and persistent. It can satisfy the definition of ‘actually invaded’ and ‘invasion’ under the U.S. Constitution,” the Republican attorney general wrote in his opinion.
He said it’s up to the governor to invoke the power and decide what sort of defense to mount. But he said ideas like calling up more National Guard troops, more forcefully deploying them to go after drug smugglers, and even building or improving the border wall could qualify as valid defenses.
“The focus is on cartel and drug and gang activity, and that’s where the focus needs to be,” Mr. Brnovich told The Washington Times. “The state is not in the business of enforcing immigration laws, but it can be in the business of defending itself. The violence on the ground, the lawlessness, is being caused by the gangs.”
Arizona Gov. Doug Ducey, a Republican, signaled this week he’s not likely to take the initiative.
Ducey spokesperson C.J. Karamargin said the governor has already deployed National Guard troops and state personnel to patrol.
“For Attorney General Brnovich to imply the Guard is not on our border does them a serious disservice and shows that he fails to appreciate the commitment these men and women have to protecting Arizona,” the spokesman said.
Mr. Brnovich told the Times that the state had more Guard troops called up during coronavirus lockdowns than it has deployed to the border right now. But he said the ball is in Mr. Ducey’s court.
“At the end of the day it’s up to the governor and his advisers to determine the best course of action,” the attorney general said.
Ken Cuccinelli, a senior fellow at the Center for Renewing America, which has been studying the invasion question, said Mr. Ducey won’t have the last word.
Both Arizona and Texas have governor’s elections this year, and he said the issue of invasion and what governors can do about it will be at the forefront of the debate.
“Voters are going to get a say in 2022,” he said. “My prediction is, in Arizona, the next governor of Arizona will not get elected without committing to doing this.”
Mr. Ducey is term-limited in Arizona. In Texas, Gov. Greg Abbott is seeking a third term.
Mr. Cuccinelli said that while the idea of a state claiming independent powers to police its border may strike modern Americans as bizarre, it would have seemed normal just a century ago.
Indeed, he said, the Border Patrol isn’t even 100 years old. Before that, the Texas Rangers would interdict and turn people back.
“The federal government has no say in this,” said Mr. Cuccinelli, a former deputy secretary at Homeland Security, and before that the attorney general of Virginia.
In an October policy paper on the invasion option, Mr. Cuccinelli said governors should deputize citizens to work alongside law enforcement to make trespassing arrests of those who jump the border.
He also said governors should have local law enforcement or the National Guard on hand whenever the feds catch-and-release illegal immigrants at the border. The releasees should be caught, loaded on school buses and driven out of state — either to be expelled at the border with Mexico or sent to states “who are refusing to secure the border of the United States.”
Mr. Cuccinelli said defending the border isn’t about immigration law, but rather bigger constitutional matters.
“It’s state war powers. It’s self-defense authority,” he said.
Blue states and communities spent the four years of the Trump administration resisting get-tough policies, filing lawsuits to block new initiatives and declaring themselves sanctuaries to thwart ongoing interior enforcement.
Now that a Democrat is in the White House, it’s red states that are looking to force the federal government’s hand.
Mr. Brnovich is one of a number of Republican attorneys general who have filed lawsuits to try to revive border wall construction, restore tough border controls and block non-enforcement policies in the interior.
On the invasion ruling, Mr. Brnovich points to two sections of the Constitution: Article IV, Section 4, which requires the government to guarantee each state a republican form of government and to “protect each of them against invasion,” and Article I, Section 10, which bars states from raising armies or engaging in war “unless actually invaded.”
Mr. Brnovich’s opinion is the latest salvo in a war of rhetoric over how bad the border has gotten under President Biden.
Last year shattered records for most illegal immigrant apprehensions, and for seizures of drugs like fentanyl. Agents say that when they arrest more people and seize more drugs, it also means that more is getting through.
The same cartels that control the flow of drugs also control human smuggling across the border, with most illegal immigrants paying a fee to the cartel to cross through its territory.
Some law enforcement officials say smuggling people can be more lucrative than drugs for international criminal organizations.
A typical migrant from Mexico is paying $8,000 to $9,000, while those from Central America are typically shelling out $12,000 to $13,000, according to The Washington Times database of smuggling prosecutions.
On the drug front, Mr. Brnovich said there’s so much supply that the price of a fentanyl pill on the street in Arizona has dropped from $20 to $5.
Amid those sorts of numbers, Mr. Biden and his team have declined to label the border chaos a “crisis,” much less an invasion.
“It is a big gulf between how the federal government is talking about it and how people on the ground, living it, are talking about it,” Mr. Cuccinelli said. “Who would you believe?”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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