Arizona is under invasion, Arizona AG affirms

Earlier this week Arizona Attorney General Mark Brnovich issued a legal opinion that the on-going illegal alien and human smuggling crisis is sufficient to invoke a State’s Constitutional right to raise forces to protect itself if threatened by invasion.

Brnovich issued the opinion in response to a request by State Representative Jake Hoffman. Brnovich notes that Article 4, Section 4 of the Constitution obligates the federal government to protect states from invasion. Article 1, Section 10 permits States to act in response to imminent or on-going invasion, without consent of Congress, allowing them to raise troops or conduct other actions needed to respond to imminent threats.

Brnovich cites James Madison in Federalist #43 to argue that the Constitutional definition of “invasion” extends beyond a narrowly defined act of war by a foreign state. Madison writes, “the latitude of the expression here used [in article 4, section 4] seems to secure not only against foreign hostility, but against ambitious or vindictive enterprises of it’s more powerful neighbors.”

Brnovich reasonably interprets foreign drug cartels and gangs within this broad definition, citing Madison again in describing the call out of the militia to suppress smugglers in Virginia.

Madison argues that the federal power to call out the militia mirrors, rather than negates, the state power, “This shews the necessity of giving the government power to call forth the militia when the laws are resisted. It is a power vested in every legislature in the union, and which is necessary to every government.”

Brnovich argues accordingly, “there is every basis to conclude this sovereign power was retained as reflected in the State Self-Defense Clause [Article 1, Section 10.]”

Calls for states to utilize the “State Self-Defense Clause” to protect the border have continued to grow in recent months, and are picking up steam. Border states such as Arizona and Texas should immediately pass legislation affirming their constitutional right to secure their states from the on-going invasion of human and drug smugglers. Additionally, other states might do likewise, declaring that they too recognize the border threat as an “imminent invasion” and confirming the reality that “every state is a border state.” A future Congress might also consider a resolution affirming that states are justified in invoking their rights to defense in the wake of the Biden Administration’s unconstitutional refusal to uphold the law.

While most everyone agrees that the ultimate solution to America’s border crisis is a federal government which upholds immigration and border laws responsibly, the politics of the moment suggests there is little that will cajole the federal government into doing their duty. This administration has already shown a willingness to impede states which seek to uphold laws they would prefer to ignore.

Fortunately, our federal system has prepared us for just such a moment, and Brnovich’s willingness to return to the Constitution and the wisdom of the founders in addressing moments is a breath of fresh air.

Mark Brnovich by Gage Skidmore is licensed under CC BY-SA 2.0