Arizona AG Says States Can Exercise War Powers With The Invasion At Our Southern Border

FAIR Take | February 2022

On February 8, Arizona Attorney General (AG) Mark Brnovich (R) issued a legal opinion concluding that under the U.S. Constitution, states can exercise their “war powers” against an “invasion.” According to the opinion, the term invasion includes the current surges of illegal aliens at our border actively driven by cartels and gangs.  The state’s ability to respond to this invasion is legitimate because the Biden Administration has failed in its constitutional duty to secure the border against these assailing forces.

Article I, Section 10, Clause 3 of the U.S. Constitution (the “State Self-Defense Clause”) provides:

No State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. [emphasis added]

Article IV, Section 4 of the U.S. Constitution (the “Invasion Clause”) further provides:

The United States … shall protect each of [the states] against invasion. [emphasis added]

Based upon these constitutional provisions, Brnovich  reasons that a state may exercise its war powers not only against the militaries of foreign nations but also “non-state hostile actors, such as organized cartels and gangs.”

AG Brnovich relies heavily on the arguments of James Madison, the U.S. Constitution’s primary drafter, who made it clear that the definition of invasion included non-state hostile actors.  In addition, Madison made it clear that the states could use their war powers when they were invaded and that these powers did not conflict with the powers granted to the new federal government.  Madison explicitly cited “‘suppress[ing] smugglers’ as an example of a justified use of the state’s militia, and he cited with approval an actual prior case of Virginia calling out its militia to do just that.”  Further, while pushing for the ratification, Madison, in Federalist Number 43, added “that the State Self-Defense Clause means that States ‘are restrained from making war, unless invaded, or in imminent danger.  When in such danger, they are not restrained.’”

Brnovich notes that “principal activity of transnational cartels and gangs at the border is to smuggle people and drugs for profit.  Indeed, using the state militia to suppress smugglers was Madison’s paradigmatic example of a justified and Constitutional use of the state militia.”

The AG concludes there is an ongoing invasion of Arizona within the meaning of the U.S. Constitution, that is being conducted by the cartels, gangs and potential terrorists when they flood Arizona’s borders with illegal aliens, drugs and violence.  Therefore, the governor, as commander-in-chief of the state militia, would be constitutionally authorized to respond with its war powers, especially since the Biden administration has not.   This, he says, “is a sovereign power that the States retain under the text of the Constitution.  Moreover, this sovereign power can be exercised in a manner separate from immigration law by regaining operational control of the border and ensuring that persons and goods entering the United States go through authorized ports of entry.”

AG Brnovich is not the only one to suggest that border states use their war powers. Former Virginia Attorney General and Deputy Secretary of Homeland Security Ken Cuccinelli has suggested it on multiple occasions.  Cuccinelli has taken the state’s powers further and contended they could include expelling illegal aliens. He noted that “[t]echnically, it’s a war power, but we’re not talking about tanks and planes … We’re literally just talking about people meeting people crossing the border, probably thumb-printing them, taking their picture and turning them around back across the border from whence they came.”  In fact, Cuccinelli has already called for Arizona Governor Doug Ducey (R) to act on Brnovich’s opinion and start taking such actions.

AG Brnovich’s opinion is not limited to Arizona. At a minimum, the opinion applies to the other border states.  Additionally, the opinion, it could be argued, does not limit invasions to border states either.