OPINION: The Constitution’s Grant of Independent Power to States Against Alien Invasion.

Sub­mit­ted by George McClellan

We won­der why Biden’s gov­ern­ment is so adamant against Texas and Ari­zon­a’s efforts to defend their bor­der with Mex­i­co. Because it’s their border(s) with Mex­i­co too, a duel con­cept of sov­er­eign­ty, one aban­doned by Biden’s gov­ern­ment. Author­i­ty lies in: Art. 1, Sec. 10 of the Con­sti­tu­tion, a litany of “No State shall…without the con­sent of Con­gress,” keep troops, lay any duty (tax) on ton­nage, or “engage in War Unless, actu­al­ly invad­ed, or in such immi­nent dan­ger as will not admit of delay.”  The immi­nent dan­ger part is due to Biden pur­pose­ful­ly open­ing the bor­der to all intruders.

Are States real­ly defense­less against the inva­sion of ille­gals flood­ing across their bor­ders? Are they legal­ly bound to do noth­ing except that which the Biden Admin­is­tra­tion allows?  No! The Con­sti­tu­tion express­ly reserves to the states sov­er­eign pow­er to defend against inva­sions and immi­nent dan­gers. Although ordi­nar­i­ly when Con­gress acts on a sub­ject in fur­ther­ance of its con­sti­tu­tion­al pow­ers, the states are pre-empt­ed from occu­py­ing the field or act­ing in a con­trary man­ner but, if stands as an expressed excep­tion for the states to engage in self-defense, it autho­rizes States to employ extra­or­di­nary pow­ers in their own self-defense, among them the pow­er to keep troops and even to engage in war if “actu­al­ly invad­ed, or in such immi­nent Dan­ger as will not admit of delay.” That pow­er nec­es­sar­i­ly includes the pow­er for bor­der states to build a bor­der wall, to raise a mili­tia to inter­dict ille­gal bor­der crossers and to arrest, detain, and eject all ille­gal entrants so appre­hend­ed to their coun­tries of origin.

In a pri­or col­umn, I explained that there is in Arti­cle IV, Sec­tion 4 of the Con­sti­tu­tion guar­an­tees that the fed­er­al gov­ern­ment shall “pro­tect each [state] against Inva­sion, and against domes­tic Vio­lence.”  In light of Pres­i­dent Biden and Home­land Secu­ri­ty Sec­re­tary May­orkas’ abdi­ca­tion of their oaths to ensure that the immi­gra­tion laws are faith­ful­ly exe­cut­ed and their acts to destroy the nation’s bor­der defens­es result­ing in vir­tu­al­ly unlim­it­ed immi­gra­tion through the south­ern bor­der, what oth­er legal action can the states take to defend them­selves? None! The states them­selves have direct con­sti­tu­tion­al author­i­ty to take action, to arrest, detain, and expel ille­gal entrants; indeed, they even have author­i­ty to declare war against an inva­sion by any­body. As war pow­ers are all-encom­pass­ing, includ­ing the pow­er to arrest, detain, and eject ille­gals, there is no con­sti­tu­tion­al pro­vi­sion grant­i­ng the fed­er­al gov­ern­ment an exclu­sive pow­er to pre­vent a state from defend­ing its ter­ri­to­r­i­al integri­ty against non-cit­i­zen entry.

The “State Self-Defense Clause” enables states to act inde­pen­dent of the fed­er­al gov­ern­ment to repel the inva­sion as are now tak­ing place across their bor­ders. By its plain and intend­ed mean­ing, this Sec­tion per­mits each state invad­ed by alien crim­i­nal tres­passers, drug traf­fick­ers, sex traf­fick­ers, spies, and ter­ror­ists who now tres­pass, loot, rape, mur­der, engage in cor­po­rate and gov­ern­ment spy­ing and plot against the Unit­ed States gov­ern­ment, to keep troops, to keep ships of war, to enter into agree­ments with oth­er states, even with for­eign pow­ers, and to engage in war to repel the invasion.

The breadth of that con­sti­tu­tion­al author­i­ty cer­tain­ly includes the pow­er to col­lude with oth­er states on a method to trans­fer ille­gal entrants through bor­der­ing states across ulti­mate nation­al bor­ders into Mex­i­co for expul­sion.  It cer­tain­ly includes the pow­er of indi­vid­ual states to agree with for­eign nations to accept receipt of their nation­als ille­gal­ly present in a U.S. state. In short, expul­sion of ille­gal entrants invad­ing a state is a con­sti­tu­tion­al­ly reserved state pow­er inde­pen­dent of fed­er­al power.

To pro­tect Arti­cle I, Sec­tion 10, the House, now in Repub­li­can hands, should pass leg­is­la­tion to redi­rect to bor­der states the $785 mil­lion allo­cat­ed for migrant ser­vices includ­ing pay­ing their hotel bills, from Biden’s mon­strous infla­tion­ary $1.7 tril­lion omnibus spend­ing bill, and spec­i­fy­ing those funds instead be spent to aid the bor­der states in repelling the inva­sion of ille­gals through con­struc­tion of bor­der walls, arrest, deten­tion and expul­sion of ille­gals back into Mex­i­co or to their coun­tries of ori­gin, and to take such oth­er mea­sures as are nec­es­sary to pro­tect the lives, lib­er­ties, and prop­er­ties of law­ful cit­i­zens of the states against the inva­sion of ille­gals. In short, because Biden and May­orkas have shirked their duties to pro­tect the nation by will­ful­ly enabling crim­i­nal, indeed ter­ror­ist car­tels to con­trol Amer­i­can immi­gra­tion poli­cies, Con­gress should cir­cum­vent the admin­is­tra­tion and sup­ply bor­der states with direct fund­ing and pow­er to put an end to the bor­der criminality.

With­out doubt, if such a bill were to pass both hous­es, Biden would veto it, but it is essen­tial to pass the leg­is­la­tion and allow Biden to chuck it prov­ing once again he oper­ates as an ene­my of the peo­ple. More­over, a two-thirds vote to over­ride his veto while a long shot, is not impos­si­ble and would enable us to see clear­ly who is and who is not the domes­tic ter­ror­ists with­in the Con­gress try­ing to destroy the Amer­i­can Repub­lic. While Biden’s actions and those of Home­land Secu­ri­ty Direc­tor May­orkas in fail­ing to ful­fill their oaths of office are impeach­able offens­es, Con­gress should pro­ceed forth­with to the impeach­ment of both in any event. For the Sen­ate still in Demo­c­rat hands, to vote the removal May­orkas should be a no brain­er, but the Sen­ate delay­ing a vote on remov­ing Biden until his last week in office, makes sense if only to forego the hor­ror of the inept Vice Pres­i­dent Har­ris serv­ing for any length of time as Biden’s replacement.

Remem­ber, free­dom is the goal, the Con­sti­tu­tion is the way. Now, go get ‘em! (10Feb23)