Arizona Attorney General Mark Brnovich determined that the crimes committed by transnational cartels at the southern border constitute an “invasion,” which Arizona can defend itself from, according to a legal opinion issued on Monday.
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.
Brnovich’s opinion argued the definition of “actually invaded” includes actions by “hostile non-state actors” and is not limited to hostile actions by foreign states.
Furthermore, 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.
His opinion relied on two constitutional clauses: Article I’s State Self-Defense Clause and Article IV’s Invasion Clause. The State-Self Defense Clause allows states to “engage in war” when “actually invaded, or in such imminent danger as will not admit of delay” without Congress’s approval. The Invasion Clause states the federal government “shall protect each [state] against invasion.”
Brnovich cited cartel involvement in drug smuggling, sex and human trafficking, and border violence as proof of the invasion at the southern border. “In 2021, the Cochise County Sheriff’s Office encountered 43,229 unauthorized aliens and 51 drug smugglers,” he wrote.
The Arizona Attorney General bolstered his argument with a quote from James Madison, who cited “Virginia using its militia to stop smugglers as an example of a valid exercise of the invasion power.”
“The principal activity of transnational cartels and gangs at the border is to smuggle people and drugs for profit,” he wrote. “Indeed, using the state militia to suppress smugglers was Madison’s paradigmatic example of a justified and Constitutional use of the state militia.”
Former Director Russ Vought of the White House Office of Management—a Cabinet-rank officer—and former Acting Deputy Secretary of the Department of Homeland Security (DHS) Ken Cuccinelli called on Arizona Governor Doug Ducey (R) to invoke the Invasion clause to secure Arizona’s border last October.
Republican Arizona state Rep. Jake Hoffman requested Brnovich’s legal opinion on whether cartel activity at the border constitutes an “invasion.”
Brnovich’s opinion made clear that the decision to act under these constitutional powers is left to Gov. Ducey.
Thus, while this Opinion has concluded that transnational cartel and gang activity in Arizona would meet the legal standard to justify exercise of the State’s power under the State Self-Defense Clause, only the Governor of the State of Arizona has the power to make a final determination that such exercise is justified.
After Brnovich issued his opinion, Cuccinelli again called on Ducey to invoke these powers. “Now we call on Gov. Doug Ducey to use this very clear legal and constitutional authority to protect the people of Arizona from the invasion they’re suffering through their southern border,” he told Fox News.
“It’s not enough for states like Texas, New Mexico, Arizona and California to complain about Joe Biden’s failure to do his job, they have the authority to protect themselves,” Cuccinelli added.
In response to Brnovich’s opinion, a Ducey spokesperson called out DHS Secretary Mayorkas and noted that the governor deployed the National Guard to the border.
DHS Secretary Mayorkas admitted himself the border is the worst it’s been in over 20 years. He needs to be held accountable. This administration needs to be held accountable. They have totally failed to address this very real public safety and humanitarian crisis,” said Ducey’s communications director CJ Karamargin. He continued:
Arizona has and will continue to protect our communities with our National Guard, our Border Strike Force and in partnership with local law enforcement. For Attorney General Brnovich to imply the Guard is not on our border does them a serious disservice and shows that he fails to appreciate the commitment these men and women have to protecting Arizona.
Immigration officials apprehended more than 1.7 million migrants in fiscal year 2021 and encountered 178,840 in December alone.
Other attorneys general from border states are yet to issue their own analysis on this issue.