Attorney General says Arizona can deal with the invasion of migrants by sending troops to the border

Arizona’s Attorney General, Mark Brnovich, issued a legal opinion claiming that the state is authorized to “defend itself” from the “invasion” of undocumented migrants crossing the border with armed troops. 

“The federal government’s failure to secure the border and protect Arizona from invasion is dangerous and unprecedented,” Brnovich wrote. “Thankfully, the Founders foresaw that States might need to protect themselves from invasion and made clear in the Constitution that States retain the sovereign power to defend themselves within their own territory.”

The opinion came after two former Trump administration officials, former DHS Secretary Ken Cuccinelli and Office of Management and Budget Director Russ Vought, asked Governor Doug Ducey to use war powers to deal with the border crisis. 

“Gov. Ducey … was extremely aggressive in committing himself to protecting Arizona and Arizonans and at the border. Well, the attorney general of Arizona has given him the method to do that, to actually solve the problem, instead of just complain about the problem,” Cuccinelli added. “And we call on Gov. Ducey to in fact go ahead and do that and start turning people around at the border in between the ports of entry.”

This approach would allow Arizona to mobilize police or National Guard members to remove undocumented immigrants from the U.S. 

“Technically, it’s a war power, but we’re not talking about tanks and planes,” added Cuccinelli. “We’re literally just talking about people meeting people crossing the border, probably thumb-printing them, taking their picture and turning them around back across the border from whence they came. And that’s it.” 

Cuccinelli and Vought argued that Arizona could use such powers under Article I of the Constitution, which allows states to “engage in war” without the approval of Congress when the land has been invaded.

“The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an ‘invasion’ under the U.S. Constitution, and Arizona therefore has the power to defend itself from this invasion under the Governor’s authority as Commander-in-Chief,” Brnovich wrote. “An actual invasion permits the State to engage in defensive actions within its own territory at or near its border.”

However, Ducey’s spokesman responded to the legal opinion by saying that National Guard troops have already been stationed at the border for almost a year. 

“Arizona has and will continue to protect our communities with our National Guard, our Border Strike Force and in partnership with local law enforcement,” Ducey spokesman CJ Karamargin said. “For Attorney General Brnovich to imply the Guard is not on our border does them a serious disservice and shows that he fails to appreciate the commitment these men and women have to protecting Arizona.”