Brnovich: Ducey Could Send Troops To The Border To Defend The State From An ‘Invasion’ Of Cartels, Smugglers

By Jim Small, Arizona Mirror

February 7, 2022

Arizona Attorney General Mark Brnovich says Gov. Doug Ducey would be on solid constitutional ground if he invoked war powers and sent the Arizona National Guard to the U.S-Mexico border to stop what he says is an “invasion” of drug cartels and criminal gangs.

In a legal opinion published Monday, Brnovich wrote that the state is being “actually invaded” by drug cartels, gangs and human-smuggling operations. And even though they aren’t an invading foreign power, he said they satisfy the constitutional definition of an invasion and clear the way for Ducey to authorize military action at the border.

“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.”

The opinion stemmed from questions posed by Rep. Jake Hoffman, R-Queen Creek, who asked whether the U.S. Constitution’s authorization of military action for “invasion” refers only to foreign powers, or if hostile non-state actors — armed cartels and gangs — would satisfy the requirement. He also wanted Brnovich to weigh in on whether the federal government’s “severely degraded… operational control of the border” that is leading to increased drug- and human-smuggling would qualify as an invasion.

Brnovich, a Republican who is running for U.S. Senate, teed off on the Biden administration, accusing it of “unprecedented actions… to destroy operational control of the border.”

“The on-the-ground violence and lawlessness at Arizona’s border caused by cartels and gangs is extensive, well-documented, and persistent,” he wrote. “No State should be put in the position that Arizona and other border states have been put in through the federal government’s recent actions…

“The State Self-Defense Clause exists precisely for situations such as the present, to ensure that States are not left helpless.”

Ducey’s office did not immediately respond to a request for comment on Brnovich’s legal opinion or questions about whether he intends to send the National Guard to perform “defensive actions” along the border.

Last month, nativist GOP lawmakers and immigration activists called on Ducey to militarize the border and deploy the National Guard, citing the same constitutional provisions that Brnovich did in his legal opinion.

Ducey has deployed about 150 members of the Arizona National Guard on a “border security mission,” but they are not there to actively defend the state in a military capacity. Rather, their mission is to support local and state law enforcement with camera maintenance and monitoring, and medical operations in detention centers, among other things.

The “invasion” terminology has long been used by the nativist movement in Arizona and elsewhere. It has also been used by white supremacist terrorists like the El Paso shooter, who targeted Mexicans at a Walmart, and the Christchurch, gunman who killed Muslims at two mosques in New Zealand.

Arizona Mirror is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com. Follow Arizona Mirror on Facebook and Twitter.