Primer: Preventing a Delay in States Declaring a Border Invasion 

Ken Cuccinelli


The latest apprehension figures from U.S. Customs and Border Protection (CBP) underscore the gravity of the crisis playing out at the southern border. In June, border agents endured nearly 7,000 illegal immigrant apprehensions every day. A staggering total of 207,416 illegal immigrants were apprehended in June 2022, down slightly from the 240,000 apprehensions in May, but nevertheless a record number of apprehensions during the month of June.

The border crisis continues with no end in sight. The Biden administration has willfully refused to carry out its Article IV, Section 4 constitutional obligations to protect the states from invasion. The American people cannot wait two-and-a-half years for a new administration to attempt to repair the damage being wrought by intentional open border policies. It is therefore up to the states to invoke their inherent Article I ‘war powers’ to take back control of America’s borders and restore security and safety for their citizens.

As a purely operational matter, a border state using Article I authority to repel the current invasion looks nearly identical to current federal efforts under Title 42 public health authority: interdict and identify illegal border crossers, then immediately transport them back to the border without entering facilities, and finally deposit them on the Mexican side of the border with basic supplies to return home.

Brief Background: Invoking Article I Authority

As outlined in previous research, the current crisis at the southern border meets every conceivable constitutional requirement of an ‘invasion.’ Since President Biden was sworn into office, over 3,184,000 illegal immigrants have been apprehended by border protection agents. This is equivalent to the entire population of Iowa entering the United States in just 18 months.

For additional perspective, the April and May 2022 apprehension numbers alone were higher than the entire population of the state of Wyoming.

Furthermore, an untold number of illegal immigrants have entered the United States undetected, with reported estimates suggesting a number as high as 800,000 illegal immigrants escaping apprehension since the beginning of FY 2021. These numbers are directly attributable to the catastrophic policies of the Biden administration.

A brief but hardly exhaustive outline of the administration’s reckless border policies includes:

  • On his very first day in office, President Biden signed an executive order that ended the emergency declaration on the border and halted the construction of the border wall.
  • The administration reimplemented “catch-and-release” through Executive Order 14010, which requires CBP to release illegal immigrants into U.S. communities while they await their immigration court hearings.
  • The administration reduced illegal immigrant prosecutions by nearly 80 percent in FY2021, despite historic increases in illegal crossings.
  • The administration punished several CBP agents falsely accused of “whipping” illegal immigrants despite the agents being cleared of wrongdoing, exacerbating the already spiraling morale crisis among frontline officers charged with protecting the U.S. border.
  • The administration maintains support for ending Title 42 public health protocols to deport illegal immigrants due to the ongoing COVID-19 pandemic.
  • The administration froze the “safe third country” asylum rule which required potential asylum-seekers to first seek asylum in safe nations along their journey as a means of mitigating pressure on the border and deterring false asylum claims.

The scope of “invasion” in Article IV, Section 4 of the U.S. Constitution includes any unwanted, unlawful entry that harms or threatens the interests of America or a state. As such, there is no proscribed limitation, such as an invading army of a foreign nation, that constrains the definition of “invasion” in the context of state war powers. It’s clear the Founders conceived of any number of stateless, external entities and groups capable of posing a threat to the well-being and security of each state. Therefore, border state officials should invoke their inherent Article I defense authority with full confidence that the chaos transpiring on their borders more than meets any constitutional definition of “invasion.”

Furthermore, state leaders should rest easy when it comes to a potential federal response to an Article I declaration. As earlier analysis has demonstrated, concerns about federal officials attempting to utilize 18 U.S.C. § 242 to prosecute state law enforcement officials under “color of law” provisions are not grounded in legal, historical, policy, or political reality. 

Instead, state lawmakers and elected officials should focus on ensuring that their Article I declaration is not prematurely limited in its scope and capacity. Below are key guideposts for how state leaders should operationalize their Article I efforts to protect their citizens.

Policy Implications: Properly Enacting Article I Authority

As states invoke their Article I authority to defend themselves from the invasion occurring at the southern border, they should ensure that their declarations encapsulate the totality of the crisis. In order to maximize the chance for success, Article I powers should follow these critical guideposts:

  • State Clearly the Invocation of Article I, Section 10, Clause 3 Self-defense Authority: While Article I, Section 10, Clause 3 of the U.S. Constitution outlines state ‘war powers’ to repel invasions, it is important for the Governor to document that he or she is invoking those specific powers prior to ordering state law enforcement and National Guard personnel to engage in repelling the invasion. This will ensure that relevant authorities understand what legal authority is underpinning their actions.
  • Recognize Migrants as Both Cartel Weapons and Invaders Themselves: Transnational criminal cartels have weaponized the sheer number of people to overwhelm U.S. border agents, often directing migrant flow in one area to force CBP to shift resources so that drugs, violent criminals, and human trafficking victims can be smuggled across the border elsewhere. Women, children, and the elderly are being trafficked from the Mexican side of the border with explicit price tags that fill the financial coffers of these violent, murderous cartels. The disturbing reality is that the sheer number of illegal immigrants serves as a primary weapon of these cartels. Therefore, state leaders must ensure that their Article I invocation captures the totality of the invasion and not just cartel operatives, i.e., the non-cartel members may be less culpable and more sympathetic than the cartel members, but it should be made clear that they too are invaders.
  • Dismantle Cartel Infrastructure: At the same time, state officials should ensure that their Article I authority provides the ability for state law enforcement and state-based military personnel to target cartel operatives for possible federal prosecution for significant offenses (i.e., turn the serious criminals over to federal authorities in situations in which the Biden administration is likely to actually prosecute), preemptively destroy smuggling infrastructure such as tunnels and drones, and if necessary, engage in kinetic activity to defend the territorial integrity and security of their respective states from violent, murderous cartel operatives.
  • Protect American Communities: It is critical that an invocation of Article I authority focus on protecting American citizens and communities not merely along the border, but also within the interior of the state. Officials should ensure that any such declaration provides State Police and other authorized personnel to enforce the invasion protocols in communities and cities throughout their respective states.  Furthermore, such a declaration should enable the deputizing of out-of-state personnel provided by other states to help repel the invasion.
  • Meet Treaty Obligations: As part of a State’s invasion declaration, a finding should be made that the country of Mexico is a signatory to the Convention Against Torture and is in compliance with that treaty.  Additionally, those removed to Mexico should be advised that if they have legitimate asylum claims, they can make those at a legal port of entry.
  • Alleviate Humanitarian Crisis: As part of the Article I declaration of invasion, state leaders should ensure that they authorize a broader array of resources aimed at ultimately ending the humanitarian crisis. State officials should implement efforts that convey the unshakeable reality to migrants that the border is closed, that illegal border crossers will be immediately returned back into Mexico regardless of federal policies or inaction, and that the government of Mexico is now ultimately responsible for their well-being.

These measures will ensure that state lawmakers and officials maximize the full problem-solving capacity of an Article I invasion declaration and provide the best chance to protect their citizens and communities in light of the federal failure to do so. The long-term resolution to the security and humanitarian crisis playing out at the southern border requires states to lead the effort to restore order and sanity and do so in a way that strikes at the root of the crisis.


The security and humanitarian crisis at the southern border continues to threaten the safety and well-being of the American people and communities all across the nation. Momentum has built for states to finally assert their constitutional powers and do the job that Washington D.C. refuses to do: secure the border.

When this historic–and necessary–action occurs, it is incumbent for state leaders to invoke their Article I powers in a manner that addresses the totality of the crisis. All too often, policies are devised through a prism that seeks to mitigate potential political blowback that in turn undercuts the very purpose and efficacy of the proposed policy solutions.

The border crisis is too dire for state officials to abandon their responsibilities by simply declaring an invasion without completing the implementing steps. And the consequences–which include accelerating fentanyl deaths, rampant human trafficking rings, and skyrocketing crime rates–are simply too devastating for leaders to not take the actions necessary to bring this invasion and onslaught of human misery to an end.


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