Legal Report: Governors Should Defend the Border amid Biden’s Inaction

The constitution allows the 50 states to take over the nation’s border defenses when the federal government refuses the task, says a report from the Center for Renewing America.

“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,” said the report, released October 26. The report adds:

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.

“This is not immigration law — this is constitutional self-protection against invasion,” said Ken Cuccinelli, a senior fellow at the center.

Several states are already acting to stop the migration. Texas, for example, is spending $3 billion to build a border wall and to arrest and detain migrants, even as President Joe Biden’s deputies escorted or allowed roughly 1 million economic migrants into the United States from January to October.

“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,” says the report, adding:

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. … 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.

The report explains the legal authority that allows state governors, Attorneys General, and legislatures to step in where Biden’s government refuses to act:

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.

“In many ways, [administration officials] have taken steps to actively encourage illegal immigration to the country,” said Cuccinelli. “The near invitation by this federal administration for illegals to come here [is] reflected frankly by the illegals themselves: They show up with Joe Biden t-shirts on demanding that he keep his promises to them.”

Immigration damages ordinary Americans’ career opportunities, cuts their wages, and raises their housing costs. It also curbs their productivity, and widens regional wealth gaps, Immigration also shrinks their political clout, and wrecks their open-minded, equality-promoting civic culture.

The report emphasizes the government’s failure to block the inflow of drugs which helped kill 93,000 Americans in 2020:

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.

According to the Centers for Disease Control and Prevention:

Nearly 841,000 people have died since 1999 from a drug overdose … Overdose deaths involving opioids, including prescription opioids, heroin, and synthetic opioids (like fentanyl), have increased over six times since 1999 … [Just] opioids killed nearly 50,000 people in 2019, and nearly 73% of those deaths involved synthetic opioids.

Cuccinelli said:

If you ask your police contacts in Denver, Chicago, [and other cities] about the street price for fentanyl and other drugs that come across the southern border, what you will hear year over year is that that price has dropped substantially and that is a simple measure of supply and demand. The cartels can now with virtually without resistance bring drugs into the country.

For many years, a wide variety of pollsters have shown deep and broad opposition to labor migration and the inflow of temporary contract workers into jobs sought by young U.S. graduates.

This opposition is multiracial, cross-sex, non-racist, class-based, bipartisan, rational, persistent, and recognizes the solidarity Americans owe to each other.