A primary reason that our Constitution is a written document is to remind the federal government that its powers are enumerated, defined, and limited.
The government of the United States is . . . [one of limited powers]. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.[1]
Furthermore, the Tenth Amendment expressly reserves to the States any and all sovereign powers not expressly delegated to the federal government or prohibited to the States in the written Constitution.[2]
Over the past year there has been an unprecedented influx of people illegally entering the United States across Arizona’s southern border. Unlike legal “immigrants,” these people have not been invited or granted permission to enter our State or county and, in fact, they blatantly violate our Nation’s laws the moment they set foot on American soil. Additionally, many of them are violent criminals, sex offenders, human smugglers, cartel drug runners and, worst of all, known terrorists, on the “terrorist watch list,” or from “terrorist” countries who hate and seek to do America harm.
The federal government is NOT supposed to allow it to happen. Article IV, Section 4 (the “Invasion Clause”) of the Constitution expressly mandates that the federal government shall protect the States against invasion: “The United States . . . shall protect each of them [the States] against Invasion; . . .” (emphasis added).[3]
And, no reasonable person can deny that the tens of thousands of persons illegally crossing our southern border every month, from who knows where and committing heinous crimes and bringing disease, drugs, and mayhem into Arizona, is an actual “invasion.” Yet, the Biden Administration does nothing. Rather than perform its constitutional duty to enforce the laws of the land and protect the individual States, as required under the Invasion Clause, the Biden Administration has adopted an “open borders” policy and has all but “rolled out the welcome mat.”
Arizona, however, has the constitutional authority and sovereign power to protect and defend its own border and its citizens. Specifically, Article I, Section 10 of the Constitution (the “State Self-Defense Clause”) authorizes a State to defend its borders when it is “actually invaded” or faced with “imminent danger.”[4]
Under the current conditions at the southern border, Arizona is actually being “invaded” and, as a result, the State and its citizens, especially those living along or near the border, are in “imminent danger” every minute of every day. Yet, Arizona’s state representatives and officials have done little to defend and protect Arizona’s border or its citizens.
Not so in Texas. On June 8, 2021, Congressman Jodey Arrington (TX-19) introduced a House Joint Resolution (“H.J.Res.50”) calling for congressional recognition that
. . . Article I, Section 10 of the United States Constitution [State Self-Defense Clause] explicitly reserves to the States the sovereign power to repel an invasion and defend their citizenry from the overwhelming and “imminent danger” posed by paramilitary, narco-terrorist cartels who have seized control of our southern border.”[5]
H.J.Res.50 expressly lists the dire circumstances confronting border states like Arizona and Texas over the past year:
- Apprehensions of illegal aliens at the southern border since President Biden took office exceed the total apprehensions of the entire previous year;
- “[T]he 178,622 apprehensions [on the southern border] in April [2021] marked a 20-year high and represented a 944-percent increase compared to April 2020”;
- “[Individuals] apprehended have come from over 160 nations, including individuals on the terrorist watch list”;
- “[N]early 6,000 criminal offenses have already been committed by illegal immigrants in 2021, including assault, homicide, illegal drug and contraband possession, trafficking, and sexual offenses . . . a 140-percent increase in criminal offenses, . . .”;
- “. . . more than 3,000-percent increase in arrests of convicted sex offenders [in the Del Rio Sector of the Texas border] compared to the previous year”; and
- “. . . over 6,000 pounds of fentanyl—enough to kill every American four times over—[has been seized] in [the first half of] 2021, surpassing the 4,700 pounds seized in the entirety of 2020.”
Representative Arrington’s Joint Resolution essentially seeks a “resolution” by both the Senate and the House of Representatives expressly recognizing that an invasion is occurring at the southern border and that the States have sovereign power and constitutional authority to deal with it under the State Self-Defense Clause in Article I, Section 10 of the Constitution. H.J.Res.50 asks both the Senate and the House to expressly recognize two key points:
(1) the States at our southern border, including Texas, New Mexico, Arizona, and California are suffering an invasion by paramilitary, narco-terrorist cartels; and
(2) sovereign and unilateral authority [is] explicitly reserved to the States, respectively, under Article I, Section 10 of the United States Constitution to defend themselves against the invasion by cartels, which has been exacerbated by the Federal Government’s failure in meeting its constitutional obligation to “insure domestic tranquility”, “provide for the common defense”, “execute the laws”, and “protect each [State] against invasion.” [Emphasis added].
Arizona finally joined Texas “at the table” on February 7, 2022, when its Attorney General, Mark Brnovich, issued a formal Legal Opinion concluding, first, that the federal government has failed to fulfill its constitutional duty under the Invasion Clause to protect Arizona from the invasion occurring at its southern border. Second, he confirmed that Arizona has the sovereign power to protect itself from invasion and “to control on-the-ground conditions at [its] borders that are essential to public safety and security,” under the State Self-Defense Clause and the Tenth Amendment.
The federal government is failing to fulfill its duty under Article IV, Section 4 of the Constitution to defend the States from invasion. The State Self-Defense Clause exists precisely for situations such as the present, to ensure that States are not left helpless.
Moreover, Attorney General Brnovich concluded that Arizona’s sovereign power of self-defense is essential “to defend [its] integrity . . . from on-the-ground lawlessness at or near its border.” And, this is especially so given the Biden Administration’s “unprecedented actions” to destroy “operational control of the border.” It has exacerbated the scope and magnitude of the invasion at the southern border and, in doing so, has exponentially increased the imminent dangers and risks to Arizona and its citizens by (1) illegally rescinding Trump’s Migrant Protection Protocols (MPP), (2) preventing ICE and the Border Patrol from enforcing federal law, (3) stopping construction of the border wall, and (4) closing inspection checkpoints.
Attorney General Brnovich also concluded that the original meaning of the word “invasion,” at the time the Constitution was ratified, clearly covered the current circumstances occurring at Arizona’s southern border:
. . . the commonly understood meaning at the time of the word “invade” covers the activities of the transnational cartels and gangs at the border —they enter Arizona “in [a] hostile manner”; they “enter as an enemy, with a view to … plunder”; they “attack,” “assail,” and “assault”; and they “infringe,” “encroach on,” and “violate” Arizona.[6]
And, the federal government’s “dangerous and unprecedented” failure and refusal to defend Arizona from the invasion warrants Arizona’s use of its sovereign powers to “defend [itself] within [its] own territory.” Attorney General Brnovich, however, cautions that, as a legal matter, any action taken by Arizona to protect its southern border from the ongoing invasion, under its sovereign powers and the State Self-Defense Clause in Article I, Section 10, must be at the direction of Governor Doug Ducey, as Arizona’s Commander in Chief.
He concluded his legal opinion with a cogent summary of the legal basis for Arizona’s use of its sovereign power to defend against the invasion at its southern border:
[The terms] “actually invaded” and “invasion” in the State Self-Defense and Invasion Clauses is not limited to hostile foreign states but includes hostile nonstate actors. The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an “invasion” under the U.S. Constitution, and 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. Texas Congressman Arrington and Arizona’s Attorney General, Mark Brnovich, have “set the table” and it is now up to Governor Ducey and other Arizona representatives and officials to step up and start protecting Arizona and its citizens from the ongoing mayhem at our southern border.
[1] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
[2] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., Amend. X (emphasis added).
[3] Additionally, Article I, §8, cl.15 expressly grants Congress the power to “call forth the Militia to . . . suppress Insurrections and repel Invasions.”
[4] The State Self-Defense Clause states, in pertinent part, that “[n]o State shall, without the Consent of Congress, . . . keep Troops . . . in time of Peace, . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” U.S. Const., Art. I, §10, cl.3 (emphasis added).
[5] See https://www.congress.gov/bill/117th-congress/house-joint-resolution/50?q=%7B%22search%22%3A%5B%22congressId%3A117+AND+billStatus%3A%5C%22Introduced%5C%22%22%5D%7D&s=1&r=1.It is disappointing that, as of February 7, 2022, there were only 60 co-sponsors, including Arizona Representatives Lesko (AZ-8) and Gosar (AZ-4), who signed onto H.J.Res.50 on June 17th and 18th, respectively. Where are the rest of the Republicans?
[6] Legal Opinion at 23 (citing 1 Noah Webster, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 113 (1828)).
Cowboy Law 
Leave a comment