States Have the Right to Protect Their Borders

By Ken Cuccinelli II
Volume 25, Number 1 (Fall 2014)
Issue theme: "Illegal Alien Crimes in North Carolina"

While rarely discussed, Article I, Section 10, Clause 3 of the Constitution states as follows: “No State shall, without the Consent of Congress, lay and Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, OR ENGAGE IN WAR, UNLESS ACTUALLY INVADED, or in such imminent Danger as will not admit of delay.

The border states that are being directly invaded by illegal immigrants — Texas, Arizona, and New Mexico — may constitutionally deal with the invasion themselves, at least as it relates to attempting to stop the flow across their own borders. And there is nothing President Obama or those in Washington can do to stop any of these states, if they are determined to act.

Governor Perry appears to be prepared to call out the National Guard to protect the borders of Texas from the worsening invasion. He has the full constitutional authority to take that action. Then-Democrat Governor of New Mexico, Bill Richardson, did the same thing during his term as Governor.

However, in theory at least, President Obama could “federalize” the Texas National Guard, i.e., call it up into federal service, at which point it effectively becomes an active duty element of our national military answerable to the President, not the Governor of Texas. But, as I said earlier, if Texas is determined enough, they can use their own police, sheriffs, Texas Rangers, and whatever else they’ve got aside from the National Guard, and there is truly nothing the federal government could do to stop them.

The Founders gave the states tools to counter-balance a failing federal government. It sounds like Texas may finally step up, where those in Washington have failed.

Time will tell.

[First published on Ken Cuccinelli’s FACEBOOK page, July 21, 2014

On July 21, 2014, Governor Rick Perry (R-Texas) announced he was deploying 1,000 Texas National Guard to the U.S. border with Mexico, saying he could not sit by while “our citizens are under siege.”

About the author

Mr. Cuccinelli, from Nokesville, Virginia, is a former attorney general of the Commonwealth of Virginia.