Invasion or Evasion? Crisis at the border is a political, not a constitutional problem

“We’re being invaded.” Those words from Kinney County, Texas, Judge Tully Shahan this week were echoed by officials in three Texas counties, urging Gov. Greg Abbott (R) to declare an “invasion” of the state by illegal immigrants. 

With 1.06 million encounters in just the first half of the 2022 fiscal year, it is hardly hyperbole. However, these officials are seeking a constitutional — not just a political — declaration. They are claiming an actual invasion in order to trigger the state’s right to self-defense in the face of inadequate federal enforcement.

Border arrests in May set a record for the country, with 239,416 illegal immigrants apprehended. Thousands of weapons and hundreds of millions of lethal doses of fentanyl have been seized, too, as border states begin to buckle under the rising crime and social-welfare costs.

While some federal border agents seem in open defiance, the Biden administration narrowly prevailed in the Supreme Court to stop the Trump-era “Stay in Mexico” policy, which could further increase these numbers.

From the states’ perspective, this was a deal-breaker. In debating the Constitution after its drafting in 1787, states were assured that ceding authority to a federal government would not only preserve their rights under a federalism system but would guarantee that they would be protected from invasion. That obligation was made plain in Article IV, Section 4, the so-called Guarantee Clause; it states in part that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

Article I, Section 10, Clause 3 of the Constitution bars states from conducting foreign policy or performing other federal duties, including the power to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

That language was not the manifestation of a new deal with the states. It was largely taken from the much-maligned Articles of Confederation. Despite wanting to strengthen the powers of a federal government, the Framers incorporated the original recognition that a state can always act in self-defense in the face of an invasion.

What constitutes an “invasion” in a colloquial sense is highly subjective. When Benedict Arnold took 1,600 men over the northern border into Canada in 1775, it was rightfully called an invasion. Yet when millions pour over the southern border, it is called lax enforcement.

The legal difference is obvious. One was an organized national force seeking to take over a country. The other is a collection of people from various nations seeking to join this country. Yet, for border states, the distinction easily can be lost in the costs and the crime associated with runaway illegal immigration.

It is clear that the Constitution’s references to “invasion” meant an organized foreign army. When the Constitution was ratified, the federal government had only a small regular army, and border states were legitimately concerned about an invasion by hostile foreign powers or their surrogates.

The failure at our border is a problem of competency rather than the Constitution. If “invasion” can be defined this broadly, any lack of border security could be defined as an invasion, from illegal drug imports to illegal gang activity. 

In some respects, states are in a worse situation than when they ratified the Constitution. At that time, state legislatures controlled the composition of the U.S. Senate, which made senators far more responsive to state interests. That changed in 1913 with the direct election of senators under the 17th Amendment. States also once controlled most of the country’s tax revenue, giving them considerable power over the federal government. That ended with 16th Amendment giving Congress the right to impose income taxes.

On immigration, however, it became more difficult just ten years ago with the Supreme Court’s decision in Arizona v. United States, reaffirming federal authority to control borders and dictate immigration enforcement. During the Obama administration, states sought to enforce immigration laws after they claimed a lack of federal enforcement. While the state won the right to confirm immigration status in some cases, the Obama administration prevailed overall in swatting back state efforts to increase enforcement along the border.

Now, Arizona is trying again with a commitment of $564 million to secure its southern border, including border fence construction and improved technology, and plans to build a “virtual border wall.” It is not clear if this renewed effort will succeed in light of the 2012 decision, particularly given the absence of key details on enforcement.

Other options are equally daunting for states. 

President Biden could reverse course and openly enlist states to expand enforcement; that seems unlikely given the increasingly hostile relationship between the administration and border states. 

Or states could pressure Congress to change immigration laws to allow for greater state enforcement — but there are constitutional barriers to forcing a president to enforce particular laws under our separation of powers. Indeed, in this month’s ruling in Biden v. Texas, the court voted 5-4 that the administration had discretion not to maintain the Stay in Mexico policy even if it meant a greater infusion of undocumented persons. Justice Alito wrote for the dissenting justices in declaring that the Biden administration is ignoring the current law and “this practice violates the clear terms of the law, but the court looks the other way.” These justices do not view the border crisis as an invasion as much as an evasion of federal law.

Rather than trying to force President Biden to enforce these laws, Congress could seek to allow states to do so. Much of the 2012 ruling against Arizona was based on the preemption of state laws by federal immigration laws; the court ruled that states cannot create “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Congress, however, could change those purposes and objectives by expressly allowing for state enforcement. Moreover, it can use the power of the purse to force a president to do so.

Otherwise, courts will view this as a political question to be addressed in the polling place, including the upcoming midterm elections. The public appears to transcend party lines in its opposition to the border crisis. A recent poll shows Biden’s approval on immigration at just 32 percent; even a majority of Latinos opposed the administration’s effort to dispense with Title 42 and the Stay in Mexico policy.

It is easy to understand the frustration of states which feel they are victims of a bait-and-switch from the 18th century. Yet if there is a case to be made for self-help, it is not to the courts but to the voters.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.