Primer: Preventing a Delay in States Declaring a Border Invasion
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:
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:
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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