Do border states have the power to repel illegal entry?

· June 26, 2018  
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The U.S. Constitution and flag
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During an era of ever-evolving and newly discovered rights, we forget that sovereignty, both federal and state, is an absolute right that is being ignored in the immigration debate. We have the right, both as residents of states, particularly at the border, and as citizens of this federal republic, to be governed by our consent and to admit people to this country only through the consent of our laws. We’ve already explained that it is a founding principle that a president has the power and the responsibility to repel a large-scale incursion into our country. A state has a similar responsibility when it is experiencing an invasion and the federal government refuses to act.

The entire purpose of a federal government

What if our own federal government is impotent in protecting our border states from violent drug cartels and the crime, social ills, and public cost drain of mass migration from across the border, while the federal courts are downright preventing the states from protecting themselves?

The Constitution is clear as to the responsibilities of the federal government and why we have one in the first place. The federal government exists not to impose more regulations on the people, but to protect their rights and security where states are inherently incapable of doing so effectively — namely, in repelling an invasion. Ironically, it is the one act of war a president can pursue without the consent of Congress, yet the invasion at our border is the only one we refuse to address.

Article IV, §4 of the Constitution tasks the federal government with guaranteeing states’ protection against invasion. That is because, in the words of Madison (Federalist #45), the “few and defined” powers of the federal government were to be applied “principally on external objects, as war, peace, negotiation, and foreign commerce.” State governments, on the other hand, deal with “the internal order, improvement, and prosperity of the State.”

This is war

But what if an outside force buttressed by the most dangerous paramilitary organizations in the world invades a border state and disrupts its internal order, improvement, and prosperity – and the federal government doesn’t stop it? Well, the Constitution is not a suicide pact.

Article I, § 10, cl. 3 (the Compact Clause) states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The Constitution is clear that, all things equal, states shouldn’t engage in warfare with other countries. But all things are not equal in this case, and the Constitution made an exception for those times when states are invaded and in imminent danger.

Well, is this really an invasion or imminent danger, you might ask?

Andy McCarthy wrote an incisive column yesterday reminding us that we are looking at the immigration issue through the wrong lens. We view it as a legal problem, when in essence it’s a national security problem. Just consider the crime statistics in Texas alone since 2011:

According to the DHS and the Texas Department of Public Safety, over 251,000 criminal aliens have been booked into local Texas jails between June 1, 2011, and April 30, 2018. They have been charged for a total of 663,000 offenses, including:

  • 1,351 homicides;
  • 7,156 sexual assaults;
  • 9,938 weapons charges;
  • 79,049 assaults;
  • 18,685 burglaries;
  • 79,900 drug charges;
  • 815 kidnappings;
  • 44,882 thefts;
  • 4,292 robberies.

And those numbers only include those illegals verified by federal authorities through fingerprints. Roughly 50 percent, and often the most dangerous ones, are never interdicted by federal authorities before they commit murder and mayhem in Texas.

Where is this coming from? It’s not a natural disaster. It’s coming from a concerted and organized massed migration completely orchestrated by the drug cartels, often with the help of the Mexican government. Click through to my tweetstorm quoting the Texas DPS explaining the results of the first Central American migration in 2014-2015:

As these quotes show, this is not some sort of legal problem with immigration loopholes, but our biggest current threat to our national security and homeland. These are often former Mexican military, in the case of the Zetas cartel, who now hold territory on Texas soil and use military tactics to divert the border patrol with bogus asylum seekers and bring in drugs, crime, and gangs.

If this is not an invasion or an imminent danger, I’m not sure what is. I don’t think our Founders could have imagined such a colossal human and monetary toll from massive migration.

Even without the military and drug cartel side of this, just the sheer wave of impoverished and often troubled migrants, of which over 90 percent turn out to be invalid asylum claims, should be enough to constitute an invasion. As Andy McCarthy rightfully observes, “If you look at federal asylum law, it addresses the individual migrant, not a systemic incursion. … It does not address what could happen if thousands of migrants simultaneously seek asylum.”

States retain their sovereignty over violent incursions

Amazingly, the political class questions even the president’s ability to repel the invasion without lawfare, but in reality, even a state, particularly Texas, should be able to do so. I’m not suggesting that the governor direct the Texas Air National Guard to drop bombs on the cartels, but the state would be well within its rights to start returning some of the migrants across the border.

Joseph Story in his commentary on the Compact Clause writes that while the prohibition on states making war is obviously necessary, it was “wisely guarded by exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union.”

Still, a state may be so situated, that it may become indispensable to possess military forces, to resist an expected invasion, or insurrection. The danger may be too imminent for delay; and under such circumstances, a state will have a right to raise troops for its own safety, even without the consent of Congress.

Haven’t the border states (the ones that still care) waited long enough with too much delay?

Some might suggest that this is not a declared war. But if you look at the original language of Article IV’s guarantee clause protecting states from invasion, Madison originally drafted its language to be read as protecting against “foreign violence.” It’s clear that this was not necessarily referring to formal warfare with a nation-state, but repelling violent incursions from Indian tribes.

When the drug cartels use families and children to distract from the core of the invasion, the cartels are no different from Hamas using human shields at the Gaza-Israel border. Israel rightfully treats this as a military issue, and our government should too. If it fails to do so, the drug cartels should be on the receiving end of what happens when you mess with Texas.

As Scalia asked: “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.