Arizona Attorney General Mark Brnovich claims the state was authorized to ‘defend itself’ under Governor’s authority as Commander in-Chief.
Arizona Attorney general Mark Brnovich issued Monday a legal opinion determining that the current crisis at the southern frontier is an “invasion”, according to the Constitution. This gives him the authority to take additional defense measures.
Brnovich, in the opinion, states that “invasion” under the U.S. Constitution does not have to be limited to hostile foreign countries but can also include “hostile nonstate actors”.
Brnovich writes that “violence and lawlessness at Arizona’s border by transnational cartels or gangs satisfy the U.S. Constitution’s definition of an invasion.” “An actual invasion allows the State to take defensive actions on its territory, or at its border.”
This opinion was issued after former Trump officials and Republican state legislators, including Russ Vought, former OMB Director and Ken Cuccinelli (ex-acting deputy DHS Secretary), urged Gov. Doug Ducey should use war power to repel the hordes of migrants who have crossed Arizona’s border to Mexico over the past year. This would theoretically allow Arizona’s National Guard or police to take illegal immigrants to Mexico.
They cited Article I of the Constitution as an example, which allows states to “engage in War” if they are “actually invaded” or “in such imminent Danger that will not permit of delay” without Congress’ approval. They also point out Article IV, which states that the U.S. will “protest each [state] against invasion.”
In FY 2021 there were over 1.7 million migrant apprehensions. The numbers continued to rise into December with 178.840 border encounters. There are fears that the crisis could continue into 2022. The surge in migrants has made Arizona’s Yuma Sector particularly vulnerable.
“The violence and lawlessness on the ground at Arizona’s borders caused by cartels or gangs are extensive, well-documented and persistent. Brnovich believes that it can meet the U.S. Constitution’s definition of “actually invaded” or “invasion”.
The Biden administration focuses on the explanation of the crisis, which centers around “root causes”, such as violence in Central America. However, Republicans at the state and national levels blame the Biden administration for rolling back Trump-era border policy and leaving states to their own devices.
Brnovich writes that “No State should ever be placed in the same position as Arizona or other border states”
He continues to argue that invasion does not always require foreign states. It can include hostile foreign actors, such as transnational gangs or cartels that bring violence and drugs like Fentanyl to the frontier.
“Furthermore,” the common meaning of “invade” is the activity of transnational cartels or gangs at Arizona’s border. They enter Arizona “in a hostile manner”, they “enter with a view… plunder,” they “attack,” they “assail,” they “assault,” and they “infringe,” they “encroach upon” and they “violate” Arizona, he stated.
Brnovich points out that the governor will ultimately decide if the State can use its State Self-Defense Clause powers and that only the Governor has the power to set the parameters for the use of defensive force.
Fox News’ Cuccinelli said that Brnovich reached the same conclusion because it was “big deal”.
“Now, we call upon Gov. Doug Ducey should use his very clear constitutional and legal authority to defend the people of Arizona against the invasion through their southern border,” said he.
He said, “It’s not enough that states like Texas, New Mexico and Arizona complain about Joe Biden’s failure to do their job. They have the authority to protect ourselves.” “Only Governors Abbot or Ducey have ever spoken of doing that. Here is proof that they have the legal authority to solve the problem and not just complain about it.
Ducey has been critical of the Biden administration’s border policies. He stated that there is a connection between rising crime and the influx in migrants to the U.S. in a interview with Fox News Digital.
He said, “Well, ofcourse, there’s an association between criminals coming across the border and rising crimes – there’s no question about that.” “We have nearly two million people we’ve arrested at the moment. Border security is national security. This is where the federal government fails.”