A constitutional scholar told The Star News Network this week that the large-scale, illegal entry happening now at the southern border constitutes an “invasion” under definitions provided in the United States Constitution.
“The kind of organized entry that we are seeing now where you got some of the gangs down in Mexico facilitating it and getting paid to put people across the border, that does qualify as an invasion even when no arms are involved,” Rob Natelson, the Independence Institute’s senior fellow in constitutional jurisprudence, said.
Natelson, who has conducted a study on what the term “invasion” meant in the Constitution, said he found that in the 18th century, when the Constitution was written, the term “invasion” had a broader meaning than just an armed invasion.
“[The definition of invasion] included people who came across sovereign borders without the permission of the sovereignty,” the former University of Montana law professor said.
Natelson added that the widespread belief that the federal government obtained the sole authority over foreign relations, borders, immigration, and foreign affairs when the Constitution was adopted, is inaccurate.
“The power of Congress to protect the borders is not exclusive,” he said. “The states also have that power. However, the state’s power is subsidiary to that of the federal government.”
Last week, Arizona Attorney General Mark Brnovich filed a legal opinion that said the state could act on its own on the border since there’s an invasion.
“The federal government is failing to fulfill its duty under Article IV, Section 4 of the Constitution to defend the states from invasion,” Mark Brnovich’s legal opinion said. “The State Self-Defense Clause exists precisely for situations such as the present, to ensure that states are not left helpless.”
Natelson, whose research has been relied upon by U.S. Supreme Court justices, said Arizona does have a residual authority to protect its borders, because organized movement across the border in an illegal way is an invasion.
If Arizona starts to deport illegal immigrants themselves, then the question before the U.S. Supreme Court will be whether this action contradicts federal law, the constitutional scholar said.
Robert Henneke, who is the executive director of Texas Public Policy Foundation, said the specifics of state power referred to in terms of the state’s power to engage in war under Article I, Section 10 of the Constitution is still unresolved.
“Yes, the Constitution states that states may engage in war without the consent of Congress in specific and limited circumstances, but what exactly that means or entails is not a settled question,” the think-tank director said.
Henneke, who is admitted to practice before the Supreme Court, said he agreed with the spirit of Brnovich’s legal opinion.
“I think the spirit of [Brnovich’s legal opinion] is the need for states to do as much as it takes, for as long as it takes to end this border crisis,” he said.
In Brnovich’s legal opinion, he referred to Clause 3 of Article I, Section 10 as “the State Self-Defense Clause.” However, Natelson said that term is usually called the “Compact Clause.”
During President Joe Biden’s first year in office, America saw an influx of illegal immigrants. Border Patrol agents arrested almost 2 million people trying to cross over the southern border illegally.
Despite all these people attempting to cross the border, deportations were down 70 percent in 2021.
The city of Yuma, Arizona, had to declare a state of emergency over the border crisis. Yuma Mayor Douglas Nicholls said he expects 250,000 illegal immigrants to cross the border in Yuma in 2022.
“The reason we are seeing this spike in the number of people trying to come illegally from all over the world now is because people know that if they can make it across the border that the Biden administration is going to let them stay indefinitely,” Jessica Vaughan, director of policy studies for the Center for Immigration Studies, said.
Vaughan said the illegal immigration crisis is the worst situation she has seen since she started on this issue in 1990.
“Immigration and border security is a federal responsibility and this is an unprecedented situation where the federal government is choosing to have a light hand in this and to not do everything it can to secure the border and prevent illegal migration,” she said.
The former State Department foreign service officer said border states are frustrated with the Biden administration’s policies that have led to this crisis at the border.
Texas, which shares 1,254 miles of common border with Mexico, has been greatly affected by the southern border crisis, according to Henneke.
“Texas is being swarmed with drug trafficking. You have unquantifiable human misery that is being caused by human trafficking and sex trafficking,” he said.
Henneke also mentioned how fentanyl was impacting communities across Texas.
“You got kids dying in our communities all over the state from fentanyl and other drugs that have been trafficked across the open border,” Henneke said.
The U.S. Customs and Border Protection announced in January that it saw an increase in fentanyl seizures by 1,066% from 2020 to 2021 in Southern Texas.
Fentanyl overdoses are now the leading cause of death for Americans between the ages of 18 and 45, the CDC said.
Furthermore, Henneke said the southern border problem has put a drain on law enforcement resources.
“Nearly half of the state troopers are deployed to the southern border, so you have taken away public safety resources from all other parts of the state,” he said.
In November 2021, Texas Governor Greg Abbott sent 10,000 National Guard and state trooper units to the southern border to participate in “Operation Lone Star,” which is a program Abbott started last March to deal with the border crisis.
Even though border security is a federal responsibility, Vaughan said states can do things to deter illegal immigrants from coming to their states. She said research has shown the most effective way for states to deter illegal settlement is to prevent illegal employment.
“If it is not easy to get a job, if it is not easy to get a driver’s license, if it’s not easy to live in a state illegally, then people will choose other states,” Vaughan said. “The best tool to do that is mandatory e-verify, where employers have to check the status of people they hire.”
For example, in Arizona, when the state passed mandatory e-verify for all employers in 2008, it saw illegal immigrant workers decrease by 17 percent in one year.
Also, Vaughan said it’s important for states to go after the infrastructure that supports illegal migration such as fraudulent document rings, human smuggling and stash houses.
“States bear the brunt of the fiscal and human cost of illegal immigration.They are not helpless in the face of federal inaction,” she said.
Henneke said all the states, just not border states, have a collective responsibility to assist each other to address the crisis along the southern border.
Kari Lake, a Republican candidate for Arizona, proposed a plan that would bring states together to fight the southern border crisis.
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