State Representative Jake Hoffman (R-Queen Creek) asked Arizona Attorney General Mark Brnovich for a legal opinion on whether there is an “invasion” under the U.S. Constitution on the U.S. border with Mexico, allowing Arizona to defend itself. Brnovich responded affirmatively on Monday, saying it’s up to Governor Doug Ducey to initiate action.
Hoffman told The Arizona Sun Times, “I’m glad to see that Attorney General Brnovich today agreed with my assessment that the crisis occurring on our southern border constitutes an invasion and a total failure by the Biden administration to fulfill its constitutional obligation to protect the people of Arizona.”
When asked what’s next at this stage, Hoffman responded, “There are currently multiple proposals making their way through the legislature and in budget negotiations to put hundreds of millions into the border security fund to ensure that Arizona has the resources to address the border invasion head-on.”
Rep. Tim Dunn (R-Yuma) told The Sun Times that he believes Ducey is going to act on it. He said the Arizona National Guard is already working extensively with the Border Patrol on the border, nabbing a couple of thousand people in drug interventions within the last few months.
In order not to get accused of stepping into areas of federal jurisdiction, he suggested the state could take action to protect the environment. “There are certain areas on the border that are more environmentally sensitive where we could step up enforcement,” he said.
Dunn said this was successfully done recently by the Border Patrol. When the Haitians recently swarmed the border coming over the Colorado River, the Border Patrol lined up and stopped them from coming over in order to protect the river. “They went to another area to cross instead, maybe California.”
Unfortunately, he said, “Under the Biden administration, the Border Patrol is acting like an Uber to ship them to other parts of the country.”
Dunn cautions people from acting on their own and patrolling the border. He said there were shots recently fired near the Morelos Dam. He said putting our own troops on the border will be “a monumental task to take over, not easy logistically,” and we “cannot take it lightly when you put someone on the front lines — it’s a police-state environment — they need to be ready to be shot at.”
In his opinion, Brnovich stated that “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 State Self-Defense Clause in Article I, Section 10 of the Constitution provides that a state may defend itself when it has been “actually invaded, or in such imminent Danger as will not admit of delay,” and the state does not need the consent of Congress to do so. At the same time, the Invasion Clause in Article IV, Section 4 provides that “[t]he United States … shall protect each [state in this union] against invasion.” So both the states and the federal government have the authority to protect against invasions.
Brnovich points to a state exercising this power in the past. “James Madison specifically cited Virginia using its militia to stop smugglers as an example of a valid exercise of the invasion power, and there is every basis to conclude this sovereign power was retained as reflected in the State Self-Defense Clause,” he said in the opinion.
In addition to having the power to thwart invasions, states also have sovereign authority to execute inspection laws, which Brnovich said applies here.
He had harsh words for the Biden administration, stating that justification for Arizona’s authority is “bolstered by the unprecedented actions of the current presidential administration to destroy operational control of the border, including the illegal rescission of the Migrant Protection Protocols (MPP), illegal issuance of ‘interim guidance’ (carried forward in ‘permanent guidance’) that prevents the U.S. Immigration and Customs Enforcement (ICE) and United States Customs and Border Protection (CBP) from executing federal laws, halting construction of the border wall, and closing highway inspection checkpoints.”
He said the situation is different than in the 1990s, when Arizona, along with several states and counties, sued the federal government over failing to do anything about the border. A couple of federal appeals courts threw out the lawsuits, which Brnovich said was because “these decisions did not address the current situation of escalating violence and smuggling by transnational cartels and gangs.“ Much of Brnovich’s 25-page opinion addressed the high rates of violence in Arizona related to the porous border.
Last month, Ken Cuccinelli (who was deputy secretary of Homeland Security under President Donald Trump and former attorney general of Virginia), Hoffman, and other state lawmakers called for Ducey to exercise this power and fix the border. They were following up after Ducey gave his final State of the State speech, where he said that he was going to do something about the border crisis.
Brnovich concluded his legal opinion, stating, “The state through its governor as commander in chief can exercise its own power of self-defense.” Gubernatorial candidate Kari Lake, who is surging in the race, recently called for the creation of an interstate compact for border security to go around the federal government. She said the situation is so urgent it should be implemented now under Ducey.
Brnovich has taken action against the Biden administration multiple times over the border crisis, including filing lawsuits and demanding the resignation of Homeland Security Secretary Alejandro Mayorkas. Last year, officials arrested a record 1.9 million people crossing the border. Since the Biden administration took office, migrant encounters in the Yuma sector increased 2,405%.
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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 Mark Brnovich.
