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Border ‘invasion’ theory gains steam

An Arizona National Guardsman uses binoculars to scan the surrounding area for illegal border crossing and other illegal activity near the border at an Entry Identification Team site, Friday, Oct. 8, 2010 in Nogales, Ariz. (AP Photo/Amanda Lee Myers)

A group of former Trump administration officials are pushing a novel legal theory they say could give Arizona broad powers to conduct immigration enforcement. 

They recommend sending migrants back across the border to Mexico – without the help or authorization of the federal government. It’s an idea that has gained traction with a group of Republican lawmakers, as well as gubernatorial candidate Kari Lake, a darling of the Trump faction of the Arizona GOP and the frontrunner to win her party’s nomination for governor. 

The theory hasn’t impressed legal scholars and it has been criticized as inflammatory by Latino advocates, but in an election year where GOP campaigns are focusing heavily on the border, it’s playing a role in the message that some conservative politicians are pushing on border issues. 

At a press conference at the Capitol Rose Garden on January 12, more than a dozen GOP legislators including Rep. Jake Hoffman, R-Queen Creek, Sen. Wendy Rogers, R-Flagstaff, Rep. Leo Biasiucci, R-Lake Havasu City, Rep. Walt Blackman, R-Snowflake, and Rep. Lupe Diaz, R-Benson, said Gov. Doug Ducey should use a plan based on the theory to declare that the state is facing an “invasion”– of unauthorized migration, drug smuggling and criminal activity – and thus unlock powers they say are given to states in Article I and Article IV of the U.S. Constitution. 

The legislators’ plan was largely drawn from a policy brief published last year by Ken Cuccinelli, a one-time acting secretary of the Department of Homeland Security in Donald Trump’s administration. 

On Jan. 12, Cuccinelli and Russ Vought, a director of the Office of Management and Budget under Trump, joined the state legislators to explain the plan and Cuccinelli’s invasion theory. The two men now work at the Center for Renewing America, a right-wing think tank founded in 2021 with a mission to push back against “critical race theory” in schools. It has since expanded its scope to a host of conservative issues from border security to election integrity. 

Cuccinelli wrote in an October brief that, in relation to border security, “the Constitution provides a firm foundation for states to act decisively in the absence of the federal government.” The document points to Article I, Section 10 and Article IV, Section 4, and Cuccinelli argues the latter section provides a “self-help” remedy by which a state can declare that they’re facing invasion. If the federal government doesn’t take sufficient action, a state can take matters into its own hands and use “state war powers.” 

The principal goal, according to the brief, would be to use National Guard personnel or state troopers to conduct deportations outside the scope of the federal immigration system. 

“The way I would do it is I would thumbprint them, give them food and water and put them back across the border,” Cuccinelli said on January 12.

“The way I would do it is I would thumbprint them, give them food and water and put them back across the border.”

Ken Cuccinelli, former acting secretary, Department of Homeland Security 

Attorneys like Paul Bender, a professor of constitutional law at Arizona State University, have dismissed Cuccinelli’s invasion theory. Bender said the notion that the Constitution’s references to “invasion” mean anything other a foreign military action is “not a serious legal argument.” 

At the press conference, Cuccinelli said there’s no case law directly supporting his interpretation, but he asserted the U.S. Supreme Court’s decision in 1849 in Luther v. Borden implies that the court can’t decide – it’s simply up to the state to declare an invasion if it’s happening. The Luther decision relates to the constitutional guarantee of a Republican form of government, which is mentioned before invasion in Article IV, Section 4. Ilya Somin, a law professor at George Mason University, said the court’s ruling on one aspect of that clause can’t simply be extended to another part. “It doesn’t follow that the definition of ‘invasion’ is also nonjusticiable,” he wrote in an email.

Still, Kari Lake, a GOP candidate for governor, has been using language similar to Cuccinelli’s proposal for months. Her border plan, released earlier this month, borrows liberally from his ideas, saying she’ll draw on Article I and Article IV to create a border security force that will arrest and remove migrants from the country. 

“Arizona will invoke our inherent power to fend off the invasion at our southern border in the absence of federal protection,” the policy states. 

However, the plan isn’t getting much love from the officials who are currently in a position to act on it. 

Ducey has said that border security is one of his top priorities in 2022 – he’s planning to push more money to state troopers who help nab drug smugglers on highways and build some chain-link fencing on the border in Cochise County – but his plans don’t include Cuccinelli’s ideas, and he didn’t publicly reply to the lawmakers who gathered on January 12.  

“As governor, I’m doing everything possible,” the governor said this week when asked about the invasion plan.  

But does that mean he disagrees with the legislators who want him to declare a state of invasion? 

“It’s also a campaign cycle, so people are going to say things,” Ducey said. “And if they get the (governor’s) job, they can prove if they can make them happen.” 

On October 26, the same date listed for Cuccinelli’s policy brief on the Center for Renewing America website, Hoffman sent a letter to Attorney General Mark Brnovich asking the AG to weigh in on whether the invasion theory holds legal water. The AG still hasn’t issued an official reply. 

Karrin Taylor Robson, a GOP gubernatorial candidate who is viewed as a more moderate than Lake, also used the word “invasion” in her first TV ad to describe the situation at Arizona’s southern border. But a spokesman for her campaign didn’t respond to a question about whether she endorsed the invasion legal theory. 

Aside from the legal questions raised by the novel constitutional interpretation, advocates say that using terms like “invasion” to talk about immigration and border issues is a problem in itself. 

Joe Garcia, executive director of Chicanos Por La Causa Action Fund, said it’s impossible not to interpret politicians using the term “invasion” in the context of border issues as, “an attack on the Latino community, treating immigrants… (like) somehow we’re invaders.” 

While politicians might see tough talk on immigration as an opportunity to score rhetorical points, Garcia said the language hits home for the state’s Latinos in a serious way. “It affects people’s real lives,” he said.

One comment

  1. While it is admirable that elected officials and candidates are making reference to the Constitution, there is no need to label an influx across the border as an “invasion.” Article 1, Section 8 of the U.S. Constitution grants the federal government authority over “naturalization” (the process of becoming a citizen) but not “immigration.”

    The 10th Amendment makes it clear that any powers not expressly delegated to the federal government are retained by the states and by the people. Every state is already fully empowered to make their own immigration law.

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