As we watch Texas defend itself against the invasion of it’s southern border, and now defend itself against the threat of lawsuit from the Biden administration, we have to ask – does the federal government have the authority to prevent a state from defending itself from invasion, as outlined in the US Constitution Article I, Section 10 (“State Self-Defense Clause”) if the Federal government fails to defend the state as required by Article IV, Section 4 (“Invasion Clause”) of the U.S. Constitution?
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In Federalist No. 43, James Madison explained with respect to the Invasion Clause that “[a] protection against invasion is due from every society to the parts composing it. The latitude of the expression used here seems to secure each state, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors.” There is no indication in this two-part definition of an intent by the framers to limit the protection to only state, as opposed to non-state, actors. As discussed above, the Invasion Clause by its plain language applies to “Invasion” and “domestic Violence.” Those two categories must be understood to cover the full subject of areas where a State might need external protection, and since actions by foreign non-state actors are not “domestic Violence,” they must qualify as “Invasion.”
Federalist 43 makes clear that the federal assistance to the state is in addition to the state’s own ability to defend itself, and “[i]f the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution.” In Federalist No. 44, Madison quoted the State Self-Defense Clause, and stated, “[t]he remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.” From Kris Mayes, AZ Attorney General.
I was encouraged to see numerous states stand up in support of Texas with most Republican Governors, including Utah Governor Spencer Cox, signing a letter in support of Texas – and 13 additional states going a step further and sending reinforcements from their own National Guards.
Meanwhile, the Biden Administration’s response to states waking up and asserting their sovereignty is that we should instead be encouraging our members of Congress to support a sham border deal that would give more power to the U.S. President to “shut down the border” and more funding for our overfunded national government to do a job that this administration refuses to do.
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Every state in the nation has the same right and the same duty to defend against illegal immigration, (it is called “illegal” for a reason). States are free to assess the level of threat and, in the absence of action by the Federal government under the protection clause, to determine their official response under the self-defense clause.
As a candidate to be the next Governor of the State of Utah, I have asserted from day one of my campaign that Governors are supposed to stand up for their states, not cheerfully negotiate the terms of our surrender.
I can assure you that as Governor of Utah, I would not be sending “thank-you letters” to other governors who are acting as bold leaders of sovereign states. Governor Abbott’s bold leadership is a wake-up call and a breath of fresh air. But, if Article I, Section 10, Clause 3 has been triggered by this illegal invasion of our country, then there is a lot more room for leadership on this issue.
Article I, Section 10, Clause 3 doesn’t just allow states to utilize military resources to stop an invasion. The Constitution also allows the states to enact new import duties/taxes and to enter into interstate compacts with other states without the need for consent from Congress. The Constitution says nothing about needing the consent of a negligent President.
The Constitution also contemplates that Congress can expressly grant these authorities to the states in the absence of an actual invasion. This isn’t necessary in the current scenario where an actual invasion is occurring, but it does raise serious questions about the current border security deal being negotiated. Instead of negotiating a deal to give President Biden more power and more money to the federal government, Congress should instead be working on a border security deal that defers this power to the states. No new funding would be necessary, since states are already showing a willingness to use their own resources that are already funded to secure our border.
Whether from the Republicans or the Democrats, we are utterly un-surprised by the dysfunction in Washington DC. And, as the Biden administration is demonstrating, the greatest threat we, as states, face is the Federal government. President Biden now says he will act to secure our southern border, but only if Congress approves to send billions of dollars in additional funding to Ukraine. Absurd! That this is even part of the negotiation is more evidence that Congress and the President should admit failure, throw in the towel, and get out of the way of the states who can actually solve these problems using the authorities available to them in the Constitution.
Utah, like every other sovereign state in the Nation, should fill the measure of their statehood. Strong states make for a Strong United States!