How Article I, Section 10 of the U.S. Constitution provides States the tools to combat the Border Crisis when the Federal Government refuses
The crisis at our southern border is one of the most visible and appalling examples of the gross incompetence and ideological possession that have characterized the Biden Administration’s first 18 months in office. According to U.S. Customs and Border Patrol (CBP), there have been a staggering two million encounters with illegal aliens during FY22 alone. This figure does not include getaways due to the lack of adequate security technology and personnel to repel a wave of illegal immigration of this scale. In addition to the strain that this massive influx of humanity places on local infrastructure and on the already-struggling American worker dealing with unprecedented shortages of essential goods and 9% inflation, these illegal crossings are undoubtedly associated with the Mexican drug cartels, who utilize the lawlessness at the border to finance their criminal operations using human smuggling, human trafficking, and drug trafficking.
High-profile scandals are making national headlines because CBP lacks the necessary resources and detention space to deal with the sheer number of aliens apprehended. Suspected terrorist Isnardo Garcia Amado was released into the interior of the United States instead of being put behind bars. In April, Reuters reported that two Yemeni terror suspects were apprehended trying to cross into the U.S. near a port of entry in California. It is a harrowing thought to speculate on how many violent criminals and suspected terrorists have not been apprehended on their journey across the border, paying off the cartels along the way.
In the face of this crisis, the Biden Administration has done nothing to increase efforts to secure the Texas Border. In fact, the administration has sought to release even more illegal aliens into the interior of the country by announcing their intention to repeal several key elements of the Trump administration’s border policy, most notably the “Remain in Mexico” Policy and Title 42 –which thankfully remains in place. Department of Homeland Security Secretary Alejandro Mayorkas, the architect of the Deferred Action on Childhood Arrivals (DACA) program, seems to align himself with the most radical Open Borders advocates and NGOs, and speaks a completely different language on “border security” than most Americans. To the average American, border security means the ability to repel and deport illegal immigrants and stop the cartel-backed, NGO-funded operations from funneling would-be immigrants across our border between ports of entry. Instead, Mayorkas’ actions have shown that his definition of border security is a question of paperwork and orderly processing rather than legitimacy of asylum claims and enforcement of the immigration laws on the Federal Register.
In response to the inaction or outright harm done by the federal government on the question of border security and repelling illegal immigration, a popular and innovative solution for the various border states to secure their own borders has emerged from various groups: citing Article I, Section 10, Clause 3 of the U.S. Constitution. This clause states that:
“No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
The Center for Renewing America has released a policy brief by Ken Cuccinelli (former acting Deputy Secretary of Homeland Security under President Trump) outlining the legal case for the states having the authority to secure the border. Cuccinelli asserts that because the federal government has neglected its duties under the Guarantee Clause of the U.S. Constitution (Article IV, Section 4) to “guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion,” states must assert emergency measures that go beyond the scope of what has been previously attempted to protect its citizens. Cuccinelli cites Article I, Section 10, Clause 3 as a remedy to this situation, and explains that individual states should formally declare an invasion at the southern border and begin using state war powers to secure the border and return illegal aliens back to Mexico “while simultaneously engaging in diplomatic outreach to the Mexican government.”
While at first glance this policy proposal may seem far-fetched due to the inaction of so many Republican state officials to actually secure the border, Arizona Attorney General Mark Brnovich issued a landmark opinion on February 7th classifying the crisis at the southern border as an actual “invasion” under the U.S. Constitution.
This policy proposal is gaining momentum among grassroots conservatives in Texas. In a poll commissioned by Defend Texas Liberty PAC, 85% of Texas GOP Primary voters said they want Governor Abbott to declare an invasion and use his authority under the U.S. Constitution to secure the Texas Border. Several organizations focused on border security and immigration policy, including Texans for Strong Borders PAC, have introduced petitions urging Governor Abbott and Texas Attorney General Ken Paxton to declare an invasion at the southern border, mobilize state resources to secure the border, and return illegal aliens to Mexico.
As the border crisis continues to deteriorate and Texas moves into its next legislative session in early 2023, there are sure to be developments on this policy as it gains momentum among concerned citizens frustrated by the inaction of the Biden Administration. The high visibility and urgency of this crisis will enable policymakers and grassroots activists to push for innovative solutions leveraging state power that have not been possible in prior political climates.