Arizona Attorney General Mark Brnovich issued a legal opinion in February declaring that Arizona has the constitutional authority to declare an invasion on its border with Mexico, but since Gov. Doug Ducey has not done so, Brnovich is now urging him to. In a letter sent to Ducey on July 6, Brnovich, who is running for U.S. Senate, laid out the reasons why.
“This horrible situation is a ticking time bomb,” Brnovich said. “It’s just a question of when, and not if, the unspeakable will occur.” He went on, “[W]e have every indication that the border crisis will continue to escalate. If there is more that we as a state can and should do, it can be pursued with your declaration of an ‘invasion’ at our southern border.”
Brnovich cited the arrest and then release of a suspected terrorist in Yuma, and said the cartels and gangs “have now assumed control of our southern border.”
After Brnovich’s legal opinion in February, Ducey’s spokesperson CJ Karamargin responded that the Arizona National Guard was enough to address the situation. “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,” he said in a statement provided to media at the time.
Ducey declared a state of the emergency at the border in April 2021, sending some troops from the National Guard there, who have been extended through August. But many do not believe it was enough. In May 2021, state legislators passed a resolution demanding more federal assistance to deal with the border crisis. Even Arizona’s Democratic Senators Mark Kelly and Kyrsten Sinema issued statements demanding more help.
The National Guard is not authorized by existing law to arrest and detain migrants. Instead, those service members can only perform backup work for the Border Patrol, such as monitoring surveillance cameras and performing data analysis, which then frees Border Patrol agents to increase their migrant apprehensions. If Ducey declared an invasion, it would provide the legal authority for the National Guard or other law enforcement and military members to expand into this area and turn away migrants at the border.
Other parts of the Southwest already believe there is an invasion. Several counties in Texas have declared one, urging Texas Gov. Gregg Abbott to follow suit. National Border Patrol Council Vice President Art Del Cueto said Texas should have declared an invasion a long time ago.
Previously, states had backed away from taking steps on their own, due to threats they were encroaching on federal power. However, that changed after Ken Cuccinelli, senior fellow at the Center for Renewing America and a former DHS official under the Trump administration, released a policy brief in October explaining how states could declare an invasion under the Constitution and take other steps to secure the border.
If Ducey declares an invasion, it is sure to face a legal challenge from the Biden administration. A White House official told The New York Post that “enforcing immigration laws is under the purview of the federal government, so state authorities doing it or taking part in immigration enforcement would be illegal.”
Many officials, including State Rep. Jake Hoffman (R-Queen Creek) who initially asked Brnovich for the legal opinion, have also urged Ducey to declare an invasion since February, but so far it has fallen on deaf ears. Leading Arizona gubernatorial candidate Kari Lake, who is endorsed by Donald Trump, said during a Newsmax appearance on July 6, “we are experiencing the largest invasion of our homeland [in history], and it’s happening now under Joe Biden.”
"After I take my hand off the Bible, we are going to issue a declaration of invasion. We are going to finish President Trump's wall, and we are going to send our armed National Guard to the border and stop people from coming across."@KariLake will Keep Arizona Safe. pic.twitter.com/RsDuKnlL06
— Kari Lake War Room (@KariLakeWarRoom) July 8, 2022
Lake presented her own plan to secure the border in February, which goes around the federal government by creating an interstate compact. Representatives from each state would set up a dedicated border security force with authority to “arrest, detain, and return illegal immigrants back across the border.” Lake offered the plan to Ducey to use now but he ignored it.
Lake criticized Ducey’s actions regarding the border during a radio interview, saying his “continued dismissal of the need for stronger border actions and leadership is hurting Arizonans right now. Arizonans simply cannot afford to wait until I am sworn into office, we need Governor Ducey to do the right thing and take action on implementing my plan immediately.”
The most recent numbers from the Border Patrol in May reveal that the number of migrants encountered nationwide increased 15 percent from the previous month, to 177,793. There is a +1,483 percent increase from a year ago.
Brnovich has championed border security while serving as Attorney General, suing the Biden administration multiple times for failure to protect the border. A federal judge agreed with his lawsuit against DHS over rescinding the Title 42 restrictions on the border, and temporarily blocked the move. However, the Supreme Court ruled last week that the Biden administration could unravel the Trump-era Migrant Protection Protocols (MPP).
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected]
Photo “Mark Brnovich” by Attorney General Mark Brnovich. Photo “Doug Ducey” by Governor Doug Ducey. Background Photo “U.S.-Mexico Border” by Amyyfory. CC BY-SA 4.0.