In what may prove to be a watershed moment in the debate over the Biden Administrations’ border policy, the Attorney General of the State of Arizona, Mark Brnovich, has issued a formal legal opinion on whether “the federal government has failed—intentionally or unintentionally—to uphold its obligations to protect our state from invasion under Article IV, Section 4 of the U.S. Constitution.” That provision states that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
The legal findings of the Opinion conclude that the vast numbers of aliens entering the nation illegally, and the violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an “invasion” under the U.S. Constitution.
The document quotes a former Acting ICE Director who said “[t]his isn’t just about illegal immigration. … this is about public safety, because the Border Patrol has arrested over 12,000 … convicted criminals. So how many of the … almost 500,000 ‘gotaways’ based on camera traffic, based on sensor traffic, based on drone traffic that the Border Patrol couldn’t respond to … were criminals or gang members? Also, Border Patrol has already arrested 16 people on the FBI screening database. How many of that 500,000 are known or suspected terrorists? We don’t know. I’m afraid someday we’re going to find out. So this isn’t just an illegal immigration problem. It’s a public health crisis because of COVID. It’s a public safety crisis. And there’s a national security crisis of huge proportions.”
The Opinion goes on to stress that “Arizona is facing an unprecedented crisis at its 370-mile border with Mexico. Acting as if they are above the law, Mexican and Central American cartels are engaging in brazen attacks on Arizona, trafficking in drugs and human beings. President Biden himself has affirmed that ‘drug cartels and human traffickers’ are ‘actual threats’ to our country.” While admitting this, however, Biden has failed to take appropriate action to defend the nation from this criminal invasion.
The legal document stresses that the “federal government’s failure to secure the border and protect Arizona from invasion is dangerous and unprecedented.” It also maintains that, in the absence of appropriate protection from the federal government, the state has the right to defend itself.
The Opinion states that “Thankfully, the Founders foresaw that States might need to protect themselves from invasion and made clear in the Constitution that States retain the sovereign power to defend themselves within their own territory. As discussed above, “actually invaded” and “invasion” in the State Self-Defense and Invasion Clauses is not limited to hostile foreign states but includes hostile nonstate actors. Arizona therefore has the power to defend itself from this invasion under the Governor’s authority as Commander-in-Chief. An actual invasion permits the State to engage in defensive actions within its own territory at or near its border.”
Brnovich is not alone. In September, Florida’s Attorney General Ashley Moody sued the Biden Administration. The complaint stated that “The Southwest border is in crisis, with record numbers of migrants illegally entering our country. While some arriving migrants have legitimate asylum claims, many do not. Some are gang members and drug traffickers exploiting the crisis at the border, as evidenced by the skyrocketing amount of Fentanyl seized at the border this year… While some arriving migrants have legitimate asylum claims, many do not. Some are gang members and drug traffickers exploiting the crisis at the border, as evidenced by the skyrocketing amount of Fentanyl seized at the border this year… The Biden Administration is ignoring … requirements. It has released at least 225,000 illegal border crossers since taking office including ‘[a]bout 50,000’ whom the government released without initiating immigration court proceedings as required by law. This practice was apparently authorized by ‘[g]uidance sent to border patrol . . . from agency leadership,’ which has not been made public, and which appears to claim broad “prosecutorial discretion” to ignore the requirements of the immigration laws. The government is not free to ignore the clear commands of Congress. It has claimed that it lacks the resources and detention capacity to process the surge of migrants arriving at the border. But the Biden Administration has actively sought to eliminate measures that increase its resources and detention capacity, such as the Migrant Protection Protocols (also known as the ‘wait in Mexico policy’,) and has even asked Congress to reduce the number of immigration detention beds available to it. Further, it is the Biden Administration’s misguided policies that have encouraged more migrants to make the dangerous journey to the United States. The government cannot, therefore, use a purported lack of resources as an excuse to ignore congressional mandates.”
Picture: Rio Grande (Pixabay)