Arizona Legally Defines Border Crisis as ‘Invasion.’ This Means It Can Use Constitutional Powers to Defend Itself

In response to the Biden administration eviscerating the nation’s border security and immigration enforcement apparatus, Arizona Attorney General Mark Brnovich released a legal opinion yesterday that defined the Biden Border Crisis as an ‘invasion.’ 

This classification can allow states to use enumerated powers granted by the U.S. Constitution to defend itself from hostile actors. Transnational gangs and cartels facilitating illicit drugs like fentanyl and/or the movement of migrants across the U.S.-Mexico border would be considered hostile actors in this scenario.

Article 1 of the Constitution allows States to “engage in War,” when it has been “actually invaded, or in such imminent Danger as will not admit delay” without the approval of Congress. Article IV says the U.S. “shall protest each [state]against invasion”, according to the attorney general’s legal opinion and legal recommendations from the Center for Renewing America.

While the legal opinion is one of the most creative, and potentially effective proposals to address the border crisis to date, it ultimately requires Arizona Governor Doug Ducey to determine whether the state can use these powers and “establish exact parameters for the exercise of the defensive use of the force.”

If approved by the governor, Arizona law enforcement—including police officers and the National Guard—would be allowed to remove illegal aliens from the country rather than relying on the Biden administration to remove them. In Fiscal Year 2021, Immigration and Customs Enforcement (ICE) arrests and removals hit historic lows, validating Arizona’s efforts to act on its own. 

In Fiscal Year 2021, immigration authorities encountered nearly 2 million illegal aliens at the southern border—an all-time high. The Yuma Sector in Arizona served as “ground zero” for illegal entries toward the end of the fiscal year.

Arizona’s unique approach is in line with a number of states seeking to find solutions to better address the Biden Border Crisis.

Florida, for instance, allocated millions of dollars to move illegal aliens out of Florida to locations close to those in charge of the nation’s immigration policies—including President Biden’s home state of Delaware. In Texas, Governor Abbott launched Operation Lone Star— a disaster declaration that directs the Department of Public Safety to “use available resources to enforce all applicable federal and state laws to prevent the criminal activity along the border, including criminal trespassing, smuggling, and human trafficking, and to assist Texas counties in their efforts to address those criminal activities.”

The Biden administration shows no sign of changing course on its border and immigration policies. Thankfully, creative legal strategies, such as the one being offered by Attorney General Brnovich, offer states a way to fight back against administration policies that promote lawlessness and criminal behavior at the southern border.

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