(CN) — Arizona Attorney General Mark Brnovich issued a legal opinion Monday that categorizes cartel activity along the state's southern border as an invasion and notes that Governor Doug Ducey has the right to use defensive force to protect the state under such circumstances.
"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 comes in response to an inquiry letter from state Representative Jake Hoffman, R-Queen Creek, asking the attorney general to render a statement on the Biden administration’s failure to uphold its obligations to “protect the state from invasion under Article IV, Section 4 of the United States Constitution.”
In his letter to the attorney general, Hoffman cites a U.S. Customs and Border Protection report showing a 95% increase in fentanyl seizures, a 1,666% increase in homicides and manslaughter, and a 187% increase in sexual assaults as critical points.
Brnovich references the precedent of James Madison using the Virginia militia or National Guard to engage smugglers before becoming the president as an example of the type of self-defense power held by the governor.
“There is every basis to conclude this sovereign power was retained as reflected in the State Self-Defense Clause,” Brnovich wrote.
His opinion hinges on the state being classified as invaded. Critical in this definition is classifying the cartels as hostile non-state actors, giving the Arizona National Guard the legal authority to engage.
“The U.S. Constitution established a dual protection against invasion through both the Invasion Clause and the State Self-Defense Clause,” Brnovich said in the statement. “There are no grounds to conclude that this protection applies only to hostilities by foreign states and not to those by non-state actors such as cartels and gangs.”
Governor Ducey, who has called upon the Biden administration to ramp up efforts in securing the southern border, did not immediately respond to the legal opinion, but has been very vocal in his criticism of the Biden administration.
“We sent [Biden] a 10-point plan from the Republican Governors Association that he could address immediately to secure our border,” said Ducey in a video press release. “So, what we want is action, attention, and purpose from this administration. These fentanyl overdoses that we're reading about in towns and cities well outside of Arizona are coming over our southern border and it needs to be addressed from a public safety perspective. If Kamala Harris is looking for root causes, all she has to do is look inside the Oval Office.”
Brnovich, who is running for U.S. Senate, claims the construction halt of the border wall, rollback of Trump-era protocols, and shutdown of highway inspection points as crucial points of failure in the crisis. The opinion comes at the height of military tensions between the U.S. and Russia over a possible Ukrainian proxy war.
If deployed abroad, Arizona stands to lose a substantial military force that could help combat the perceived invasion.
“The President's willing to risk our sons and daughters to secure the Ukrainian border,” said Brnovich to Fox News Monday. “And meanwhile, millions of drugs or pounds of drugs are flooding through our southern border. That's just the tip of the iceberg.”
According to Hoffman, the Republican majority in the legislature is slated to support any border aide, as the state has a sizeable budget surplus.
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