Policy Issues / Secure Borders

Policy Brief: How States Can Secure the Border

by Ken Cuccinelli

October 26, 2021

Given the federal government’s dereliction of duty, it’s incumbent on governors and states to fill the void and do what federal officials and lawmakers refuse to do: end the invasion at the U.S. southern border and restore both order and sovereignty.

Synopsis

The ongoing illegal immigration crisis has exploded into a full-blown national security and humanitarian disaster, with current activity representing unprecedented levels of illegal migration, human trafficking, and drug smuggling. The Biden administration’s recent reprimand against Customs and Border Protection (CBP) horse agents, falsely smearing them to appease the open-borders wing of their political base, has only escalated the crisis.

It is clear that the Biden administration has no interest in pursuing the federal policies necessary to secure the southern border. Therefore, given the federal government’s dereliction of duty, it is now incumbent on governors and states to fill the void and do what federal officials and lawmakers refuse to do: end the invasion at the U.S. southern border and restore both order and sovereignty.

The Constitutional Basis for State Action to Counter Washington’s Dereliction of Duty

The Constitution provides a firm foundation for states to act decisively in the absence of the federal government. First, the Biden Administration has neglected its duties under Article IV, Section 4 of the U.S. Constitution to protect the United States, her citizens and communities being ravaged by this invasion of crime, drugs and humanitarian crisis. Indeed, one can argue that the actions of the administration are effectively facilitating the abrogation of its own obligations.

Known as the guarantee clause, Article IV, Section 4 of the Constitution states, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”

Therefore, governors, attorneys general, and state legislatures must take emergency measures–beyond the scope of what has been attempted to this point–to follow through on the primary function of government: protecting its citizens.

The Constitution provides states an appropriate “self-help” remedy under Article I, Section 10, Clause 3, which stipulates that, “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 delay.”

There can be no disputing that the influx of well over 1.3 million illegal immigrants this calendar year alone and thousands of pounds of fentanyl and other deadly narcotics, facilitated by the widespread human trafficking efforts of violent international drug cartels, constitutes an invasion of the southern border of the United States.

These cartels effectively have operational control over vast swaths of the southern border. 

Data provided by CBP in March 2021 estimated that cartels and human trafficking organizations are earning nearly $14 million a day moving people illegally across the southern border. These violent international cartels are raking in billions of dollars every year off the pain, suffering, and abuse of migrants. 

Furthermore, most illegal drugs and narcotics enter the United States through the southern border, a finding outlined in a threat assessment dossier released by the Drug Enforcement Administration (DEA) in March of this year. The DEA report also outlines that fentanyl, a deadly narcotic that is smuggled into the U.S. by violent international drug cartels, is primarily responsible for fueling the ongoing opioid epidemic that killed nearly 37,000 Americans in 2019 and a horrific 57,550 people in 2020.

Governors and state legislators have a duty to their constituents, fellow citizens, neighbors, and families that undergirds the oath they take to uphold both the United States Constitution and their respective state constitutions. Yes, protection of our nation’s borders constitutionally and even statutorily largely falls under the purview of our federal government. But our federal government is not just sitting idle as states and communities suffer, it is willfully refusing to enact the very policies and execute the very laws that can bring the crisis to an end. 

The reality is that if the federal government refuses to faithfully execute its own laws, then the states have no recourse but to interpose themselves between the federal government and the people they have sworn to protect in order to achieve deterrence and the removal of illegal aliens.

A partial list of the federal policy failings and actions include:

• On his very first day in office, President Biden signed an executive order that ended the emergency declaration on the border and halted construction of the border wall.
• The administration’s reimplementation of “catch-and-release” through Executive Order 14010, which releases illegal immigrants into American communities while they await their immigration court hearing.
• The administration’s neglect in enforcing a court order to restore the MPP, better known as the Remain in Mexico policy, whereby illegal immigrants are returned to Mexico to await the adjudication of their status and asylum claims. 
• The administration’s refusal to fully utilize Title 42 public health protocols to deport illegal immigrants due to the ongoing COVID-19 pandemic.
• The administration’s freeze of the “safe third country” asylum rule which required potential asylum-seekers to first seek asylum in safe nations along their journey as a means of mitigating pressure on the border and deterring false asylum claims.

In light of these federal failings, the Texas legislature passed nearly $3 billion in emergency state funding in a special legislative session to restore order at the border. Governor Greg Abbott (R-TX) announced that the allocated funding will be used for additional personnel, logistical costs to surge resources to the border, and hundreds of millions of dollars for barrier creation in lieu of the administration’s refusal to complete the border wall.

These actions are necessary, but far from sufficient to end an invasion of well over 1.3 million illegal immigrants who have been apprehended in the first eight months of the Biden administration’s tenure.

Ending the Border Crisis: A Three-Pronged Strategy to Secure the Border

The states have no choice but to lead. This begins with a declaration of invasion by Texas and other border states, invoking what are in essence state war powers under Article I, Section 10, Clause 3 of the U.S. Constitution.

Aggressive policy action, without hesitation, must then follow. State leaders should hold the same regard for the approval and permission of federal officials that those same federal officials hold for the rule of law they have abandoned.

Below is a three-pronged state-based approach that will bring an end to the invasion at the southern border and force the federal government’s hand at executing the laws they have been tasked with enforcing.

Governors: The Leaders of the State Response

While the president serves as the commander-in-chief of the United States Armed Forces, it is sometimes overlooked that each individual governor serves as the commander-in-chief of their respective state’s National Guard. As Governor Abbott has done in Texas, every governor should activate his or her Guard units and send all available forces to the southern border.

Some governors, such as Governors Ron DeSantis (R-FL) and Pete Ricketts (R-NE), have already sent some additional personnel from their respective non-border states to bolster Texas’ efforts. More should join in this effort, and this activation should be the first action governors take.

The second action governors should take is to immediately form a taskforce for the creation of an interstate compact on securing the border that makes explicit that states have the full authority to secure the borders of the United States, determines that a secure border is in the shared interest of each participating state, calls their respective state legislatures to endorse such a compact, and submits the compact to Congress for its consent.

The states should not, however, wait for Congress to consent to the compact before acting. Indeed, congressional consent is not required for the actions that can and should follow. Nevertheless, the constitutional protocols should be followed for the purpose of proposing a long-term solution to our porous borders. 

Third, governors should issue an emergency call to their state legislatures to return to session followed by an executive order outlining the absolute failure and unwillingness of the federal government, under Article IV, Section 4 of the Constitution, to protect states from invasion. This should be followed by a clear justification statement under Article I, Section 10, Clause 3 of the Constitution that already grants states their inherent war powers to repel invasions in the absence of federal protection.

Indeed, while statute largely makes the border a federal responsibility, it is imperative for governors to emphasize as part of these measures that the United States Constitution supersedes federal statute. And the Constitution makes clear that state governments are not impotent should the federal government continue to willfully refuse to carry out its constitutional obligations to the individual states.

The justification statement should be used as rationale for the following actions:

• As commanders-in-chief of their National Guard, governors in border states should cite state war powers and activate and deploy all units to the southern border with specific orders to the commanding officers of the National Guard to detain and return illegal immigrants back across the border, turn back illegal immigrants to Mexico at the border, and defend (with kinetic action if necessary) against Cartel operatives, human traffickers, and drug mules moving deadly fentanyl and narcotics into American towns and communities.
• The Texas State Guard, which answers only to the governor of Texas and is separate from the Texas National Guard, should be deployed to the southern border with similar orders.
• Border state governors should instruct their Guard and Department of Public Safety (DPS) personnel to return illegal immigrants back across the border to Mexico while simultaneously engaging in diplomatic outreach to the Mexican government. This will force a constitutional question almost immediately between the states and the federal government, creating the attention and pressure required to ultimately resolve the crisis. 
• Border state governors should simultaneously call for non-border state governors to activate and deploy all available National Guard units to reinforce the border, including any and all available law enforcement personnel. Executive orders should be issued that permit these units and personnel to operate in border states in tandem with a border state’s DPS, National Guard, and law enforcement agencies.
• Governors in non-border states should follow suit and instruct their deployed National Guard units to operate in tandem with their counterparts with similar orders to detain, defend, and return while reporting directly to their home state governors.

Governors should anticipate aggressive pushback from the administration and from elected officials in Congress. As is codified in U.S. statute, the president of the United States may nationalize each state’s National Guard units and take them under his command whenever:

1. The United States is invaded or in danger of invasion from a foreign nation, 
2. There is a rebellion against the federal government, 
3. The laws of the United States cannot be executed with existing forces.

If the president attempts to federalize National Guard units under state command, governors should be prepared to respond with an immediate lawsuit, brought by their attorneys general. In such a scenario, the president would undoubtedly deny that he has failed to fulfill his obligations under Article IV, Section 4 of the Constitution (i.e., he would deny that there is an invasion), thus putting himself in a “catch 22,” i.e., if there is no invasion, there is no other factual basis upon which to federalize the National Guard under the law. 

However, if the administration agrees there is an invasion, thus justifying the president’s imposition as commander-in-chief over Guard units, then the administration could issue immediate directives to secure the border aligned with the missions provided to them by their respective governors. 

Two additional actions that should be commenced by governors (and appropriate local authorities) include:

• Commence deputization of citizens to work alongside state and local law enforcement along the border to make trespassing arrests. Citizens should be partnered with DPS personnel to ensure that the law is followed. 
• Use existing legal authority to impose prohibitions on the utilization of state assets and facilities to house unaccompanied alien children (UACs) and illegal alien minors unless and until background check legislation has been passed and potential sponsors have passed said checks.

The final measure to force the federal government to act and faithfully enforce the law is an executive action that tasks state DPS and National Guard units to utilize unused school district buses to load up illegal immigrants and caravan them out of state. The federal government has released some 600,000 illegal immigrants inside the United States in the past seven months, a clear abuse of parole authority and a reckless embrace of “catch-and-release,” fueling the rupturing of communities throughout the nation. Governors should prepare to immediately re-apprehend illegal aliens released by federal agents to be loaded up onto these buses for a return to Mexico or sent to states who are refusing to secure the border of the United States.

These are measures of last resort. However, our federalist system sometimes requires constitutional conflict to resolve issues–especially issues posing existential crises to our republic and the security of our communities. 

Attorneys General: The Defenders of the State Response

As governors move to protect their citizens and carry out the laws that the administration and federal government refuse to enforce, state attorneys general must act in tandem as the chief law officers of their respective states.

The fact is there is little, if any, case law regarding the exercise of the states’ self-help provision of Article I, Section 10, Clause 3 of the U.S. Constitution. The goal of the state attorneys general should be to facilitate the beginnings of case law when it comes to the federal government’s abrogation of its responsibilities to protect border states from invasion.

Specifically, attorneys general must lead in a manner similar to Texas Attorney General Ken Paxton, who successfully filed suit – along with Missouri Attorney General Eric Schmitt – to reinstate the Remain in Mexico policy. As governors carry out their unique commander-in-chief role as heads of their state National Guard units, attorneys general should:

• Prepare an immediate lawsuit to counter the administration should the president attempt to commandeer the National Guard. This suit should argue that his order attempting to federalize the National Guard is in direct contravention of the explicit bases provided for in 10 US Code § 12406. Despite the ongoing crisis and invasion at the southern border, the president did not utilize his commander-in-chief authority over National Guard units until governors utilized their commander-in-chief authority to faithfully stop an invasion. 
• Prepare an immediate lawsuit justifying state actions by noting the failure of the federal government to protect states from an invasion under Article IV, Section 4 of the United States Constitution, and citing Article I, Section 10, Clause 3 in support of border states’ authority to engage in self-protection.
• Prepare to immediately respond to any federal lawsuit attempting to stop states from returning illegal immigrants to Mexico. A first step in states’ response should include fighting the federal government on standing, with the attorneys general arguing that there is no injury to the federal government when states enact measures designed to stop an invasion of their own borders. 

Additionally, attorneys general should be prepared to rebut arguments that pretend states cannot return illegal immigrants–including asylum seekers awaiting adjudication–to Mexico due to credible fear of persecution. The Mexican government is not engaging in activities or enacting policies that persecute individuals due their race, religion, nationality, or political beliefs, and thus, such concerns do not arise.

Simply put, it is an invalid argument and returning illegal immigrants (invaders) to a country that is not persecuting them is not a violation of statutory commitments to asylum-seekers or of any treaty obligations. While the battle over securing the border and ending this crisis will not be fought and won in the courts alone, the legal battle is critical for securing the breathing space necessary for governors and state lawmakers to push forward measures that can protect their citizens and neighbors. It is also critical for creating the case law needed to restore American sovereignty in the long-term.

State Legislators: The Force Multipliers of the State Response

As governors and attorneys general act to defend their citizens, it is up to state lawmakers to go on offense to ensure that weaknesses are shored up and that policies are implemented to mitigate current and future gaps in border security. Concurrently, lawmakers should pass legislation that serves as a deterrent for illegal immigration in their respective states. It is critical that State lawmakers pass laws that protect their communities with a citizens-first agenda that sends a decisive message to illegal immigrants and federal officials alike. In a regular or special legislative session, state legislators should immediately move to enact any and all of the following policies:

• Pass legislation that requires strict screening requirements, consistent with existing foster care guidelines, for placing illegal alien minors with sponsors residing inside the United States. This includes background checks of sponsors, regular check-ins from state agencies, and recommendations for removal/deportation if sponsors fail check-ins and upon denial of status.
• Pass legislation that requires all refugee resettlement contractors to obtain separate state licenses in order to operate in the state, regardless of their federal participation and federal status. As part of this state licensing, contractors must obtain approval on an annual basis for a specific number of refugees who will be resettled and coordinate with state DPS and LEAs to provide quarterly reports on outcomes, percent of refugees utilizing taxpayer-funded welfare programs, and immediate notification of any criminal actions, alleged or proven, undertaken by refugees. Failure to do so results in a loss of license for the contractor.
• Pass legislation that requires the cost of uncompensated emergency care for illegal immigrants to be published annually by state departments of health and made publicly available.
• Pass legislation that requires the Department of Public Safety to publish the immigration status of individuals accused of crimes and maintain a publicly-available database outlining the criminal activity of non-citizens in a manner similar to what Texas currently does. Additionally, require state public health departments to publish strict numerical data on an annual basis on the number of injuries or deaths caused by non-citizens who are not legal permanent residents (LPRs).
• Pass legislation prohibiting state agencies and state contractors from using temporary work visas or hiring contractors/firms who utilize temporary work visas.
• Pass legislation that strips all sanctuary municipalities of any and all state funding should they refuse to abide by state or federal immigration measures.
• Pass legislation mandating E-Verify to protect U.S. workers and deter businesses from hiring illegal immigrants to access cheap labor.
• Pass legislation providing for lawsuits against companies that employ illegal immigrants by their competitors. Specifically, pass legislation that enacts treble damages within industries that knowingly employ illegal immigrant labor. Such legislation should include a liquidated damages provision of $10,000 per illegal alien employed, and a ‘loser pays’ provision for attorneys fees.
• Pass legislation requiring state and local agencies to check the immigration status for anyone receiving state benefits or services and then require these entities to report non-citizens who are not LPRs to ICE.
• Pass legislation that strips all counties and municipalities that defund law enforcement of any and all additional state funding and grants the governor the authority to redeploy law enforcement in “defund municipalities” to the southern border to operate in tandem with DPS under emergency orders to detain and return illegal immigrants (invaders) for trespassing.

The state legislatures possess the power to craft policy and enact into law measures that will ensure their communities, neighborhoods, and cities are protected with a citizens-first agenda to mitigate crime, drugs, and humanitarian crises.

Federalism is part of the fabric of our constitutional republic. It is past time for state lawmakers to remind Washington of this fact and force the constitutional battle necessary to bring an end to the emerging existential crisis of our porous southern border.

Concluding Assessment

The federal government has abrogated its primary responsibility to its citizens: protecting them. Existing conditions at the southern border threaten to relegate the United States to a borderless nation-state as public officials fail to ensure a key threshold of what constitutes a sovereign country: defined and controlled borders. Because of the reckless and destructive policies coming out of Washington D.C., combined with an administration disinterested in securing the nation it has been elected to govern, the states must use every tool available to step into the breach and defend the republic.

Fortunately, these proposed actions are rooted in a constitutional foundation that equips states to resolve this crisis in lieu of ongoing federal failures. However, if the Biden administration or federal officials attempt to thwart patriotic state leaders seeking to protect their citizens and restore our nation’s sovereignty, then the federal government will be signaling to every American its intent to operate in a post-constitutional environment that explicitly abandons both the rule and spirit of the law.

Those seeking to resolve this crisis within the existing paradigm of federalism should do everything in their power to avoid such a scenario for both the survival and restoration of our great republic. And those seeking to abandon our constitutional framework to attain their destructive political ends through open borders would do well to understand that there are far more aggressive policy solutions, many outlined in this paper, in the event of their continued lawlessness. They should step back from the abyss now and help restore order on our southern border before it’s too late.