Texas Governor Greg Abbott argues that “[t]he failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense.” Governor Abbott is referring to the federal government’s duty to “protect [the states] against Invasion,” and Texas’s claimed “right of self-defense” is premised on the notion that Texas is being “actually invaded” by migrants crossing into Texas without authorization. The governor argues that the federal government’s abdication combines with the state’s right to defend itself against invasion to allow the state even to disregard federal law. Governor Abbott’s claims have generated a lot of discussion and debate from a variety of perspectives.
On January 30, 2024, Mark Brnovich, former Arizona Attorney General and member of the Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee, testified before the U.S. House of Representatives’ Judiciary Subcommittee on the Constitution and Limited Government in a hearing titled “The Southern Border Crisis: The Constitution and the States.” The subcommittee’s goal was to examine “states’ authority to secure the southern border when the federal executive fails to do so.”
Brnovich was joined by Christopher Hajec, Director of Litigation at the Immigration Reform Law Institute; Brent Webster, First Assistant Attorney General of Texas; and Omar Jadwar, Director of the Immigrants’ Rights Project at the ACLU.
Brnovich explained in his testimony that, “as . . . a former federal and state prosecutor . . . and as a husband and parent, [he worries] that our nation is under assault from cartels and gangs that have seized control” of the southern border. The unprecedented amount of lawlessness, human smuggling, sex trafficking, and illegal drugs flooding into the United States, he argued, qualifies as an “invasion” pursuant to Article I, § 10, Clause 3 of the Constitution.
Brnovich then walked through different clauses in the Constitution to support his argument that states have the right to ensure on-the-ground safety for their citizens. He explained how the State Self-Defense Clause in Article I, § 10 allows a state—when it has been “actually invaded”—to defend itself without the consent of Congress. And he referenced the Invasion Clause in Article IV, § 4, which provides that the United States “shall protect each [state in this union] against invasion.” Both clauses, he argued, give the states grounds for defending “against hostile, non-state actors like cartels and gangs operating at the southern border.”
Brnovich expressed a strong belief that states have an obligation to protect their citizens when the federal government refuses or neglects to do so—as he believes to be the case right now at the southern border.
A recording of the hearing is available here.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at firstname.lastname@example.org.