Harper proposes state-sanctioned militia to patrol border
Published: November 24, 2010 at 8:56 pm
An Arizona lawmaker’s idea to deploy a state-run civilian force on the U.S.-Mexico border could set the stage for a dramatic showdown with the federal government if the Legislature and the governor follow through on it.
Sen. Jack Harper, a Republican from Surprise, said he plans to introduce legislation next year that would create a government-sanctioned militia that would be allowed to patrol the border to observe illegal activity and report it to enforcement authorities.
Under Harper’s plan, the civilian force would be under the supervision of the Arizona National Guard. Its members would be allowed to carry weapons for self defense. Volunteers would need a fingerprint clearance card or undergo a background check to qualify.
“We can’t afford to have illegal aliens continue to sneak into our state and staying and bringing their children so we get stuck with their educational costs. We can’t afford to continue to provide for them in our hospitals and incarcerate them when they get caught,” Harper said. “We just need to stop them at the border.”
The proposal is yet another example of Arizona’s attempt to take matters into its own hands, which arose from a widely shared belief among the state’s residents and lawmakers that the federal government has failed in its job to secure the border. But the idea of deploying a state-sponsored militia on the U.S.-Mexico border raises red flags for some legal scholars.
Paul Bender, a professor of constitutional law at Arizona State University, said a civilian militia would not be allowed to stop illegal immigrants from crossing the border because that authority is reserved for the federal government. Any direct action by the state or a militia to stop illegal immigrants from crossing the border may violate the U.S. Constitution, he said.
“If Senator Harper really wants to do this, then he ought to propose asking the federal government for its cooperation and authorization in doing this and see what happens,” he said. “To just go off on your own and say we are going to guard the border — I don’t think states can do that.”
An armed civilian force opens Arizona to civil liability, said Rep. Kyrsten Sinema, a Democrat from Phoenix.
“What happens if they apprehend individuals on the border, for which they have no federal authority to apprehend? Then is the state subject to civil lawsuits because of that? I don’t know, but my guess is probably yes,” she said.
Supporters of the idea argued that the federal government has abdicated its duties by failing to protect Arizona from “foreign invasion.”
“Arizona paid taxes to the federal government for them to provide this security, and yet they won’t secure our state. We are being invaded, and they won’t do anything about it,” said Sen. Ron Gould, a Lake Havasu City Republican.
But Doris Meissner, a former commissioner of the U.S. Immigration and Naturalization Service and now a senior fellow with the Migration Policy Institute, said the federal government has been ramping up security along Arizona’s stretch of the border, which shows that the feds are indeed taking responsibility.
“The whole focus of the federal government’s effort on the Southwest border is in Arizona,” she said. “I think that there are more federal resources in Arizona at this point than at any other place along the Southwest border.”
Harper said he would leave it to the governor to decide under what conditions and where to deploy what he is calling a “homeland security force.” But he wants volunteers to begin training immediately, if and when the measure passes and becomes law.
Harper suggested that the deployment of the civilian security force should be triggered if the number of National Guard troops that the federal government has called up to work on the border begins to decrease. Right now there are more than 500 National Guard troops stationed along the Arizona border to assist federal agents.
The proposal to create a civilian security force is only one part of Harper’s border plan. He is also considering an expanded role for the Arizona National Guard along the border. Instead of providing support to U.S. Border Patrol agents, Harper wants the National Guard troops to enforce immigration law themselves by engaging potential violators.
In Harper’s grand plan, the National Guard would train the civilian militia, the Air National Guard would train the Civil Air Patrol, and the entire effort would be paid for by the state.
Harper said he would introduce those components if the federal government fails to meet its obligations along the border.
“If the National Guard did begin to draw down, then I would advocate state funding for the National Guard and Homeland Security Force to deploy to the border,” Harper said.
Erwin Chemerinsky, the founding dean of the University of California, Irvine, School of Law, said it would be risky for Arizona to take any enforcement action along the border that may be interpreted as an encroachment on federal territory.
“Such an attempt by Arizona to enforce the border would surely be deemed pre-empted by federal law,” Chemerinsky said. “That is, and always has been, the sole responsibility of the federal government. There would be significant foreign policy consequences, and states can’t make foreign policy.”
Harper’s proposal is not new. Three years ago, he authored a similar measure that was passed by the Legislature. But then-Gov. Janet Napolitano vetoed SB1132, saying it was unnecessary because the governor already has authority to call on a volunteer militia to supplement the National Guard in times of emergency.
The political situation today is drastically different than when Napolitano was governor.
Next year, Republicans will have supermajority control of the Legislature, and many of them were elected partly because of their support for a strict enforcement approach to confronting illegal immigration. And Gov. Jan Brewer, a Republican, is now on the Ninth Floor.
It’s doesn’t help that the public’s opinion of the federal government is very low in Arizona, which has challenged the feds multiple times during the past year over states’ rights issues. Arizona is a party to a legal challenge to the federal health care law. The federal government, meanwhile, has gone to court to stop Arizona’s SB1070, which requires law enforcers to inquire of people’s immigration status if there were suspicions they are here illegally. Key provisions of that law are under an injunction.
The timing could be better for Harper’s proposal as he still faces many hurdles. The biggest challenge is coming up with the money to cover the costs of equipping and maintaining such a militia.
Earlier this year, legislative budget staff estimated it would cost $10 million to deploy 85 National Guard troops for one year. A deployment of 3,000 guardsmen to the border would likely cost Arizona more than $350 million if the state paid for it.
Although those estimates were for National Guard troops, they may also serve as an indication of what it would cost the state to pay for additional armed troops along the border.
And even if Harper’s colleagues are agreeable to sending a state-paid civilian force to the border, they might balk at any action that entails additional spending at a time when the state is facing billions of dollars in budget deficit and core services are being cut.
Without responding specifically to Harper’s idea, gubernatorial spokeswoman Kim Sabow said the governor is leery about committing Arizona to cover the costs of additional border security.
“The governor has previously stated very strongly that the expense of deploying the National Guard is a federal responsibility, and that we must continue our efforts to hold the federal government accountable for protecting our citizens from border violence,” Sabow said.
Arizona Border Patrol by the numbers
National Guard deployment along the U.S.-Mexico border: 559 in Arizona; 284 in Texas; 260 in California; 82 in New Mexico
Estimated cost of National Guard deployment for a year: $135 million, which will be shared by U.S.
Department of Homeland Security and the U.S. Department of Defense Border Patrol troops along the Southwest border: 17,500
— Source: National Guard Bureau