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The Constitution’s Grant of Independent Power to States Against Alien Invasion

The opinions expressed by columnists are their own and do not necessarily represent the views of
Townhall Media/Julio Rosas

Are the states defenseless against the invasion of illegals coming across their borders?  Are they legally bound to do nothing except that which the Biden Administration allows?  No. The Constitution expressly reserves to the states sovereign power to defend against invasions and imminent dangers.  Although ordinarily when Congress acts on a subject in furtherance of its constitutional powers, the states are pre-empted from occupying the field or acting in a contrary manner, Article I, Section 10 includes an express exception for the states to engage in self-defense.  It authorizes the states to employ extraordinary powers in self-defense, among them the power to keep troops and even to engage in war if “actually invaded, or in such imminent Danger as will not admit of delay.”  That power necessarily includes the power for border states to build a border wall, to raise an army to interdict unlawful state border crossings, and to arrest, detain, and eject to their countries of origin all illegal entrants.


In a prior column, I explained that there is a guarantee in Article IV, Section 4 of the Constitution that the federal government “protect each [state] against Invasion . . . and against domestic Violence.”  In light of President Biden and Homeland Security Secretary Mayorkas’s abdication of their oaths to ensure that the immigration laws are faithfully executed and their acts to destroy the nation’s border defenses, resulting in virtually unlimited immigration through the southern border, what can the states now do to defend themselves?  

The states themselves have direct constitutional authority to take action, to arrest, detain, and expel illegal entrants; indeed, they even have authority to declare war against an invasion by illegal aliens.  War powers are all-encompassing, certainly including the power to arrest, detain, and eject illegals.  Conversely, there is no constitutional provision granting the federal government an exclusive power to prevent a state from defending its territorial integrity against non-citizen entry. 

The “State Self-Defense Clause” enables states to act independent of the federal government to repel the invasion now taking place across their borders.  Article I, Section 10 reads:

No State shall, without the Consent of the Congress, lay any 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.


By its plain and intended meaning, this Section permits each state invaded by alien criminal trespassers, drug traffickers, sex traffickers, spies, and terrorists who now trespass, loot, rape, murder, engage in corporate and government spying, and plot against the United States government, to keep troops, to keep ships of war, to enter into agreements with other states and even with foreign powers, and to engage in war to repel the invasion.  The breadth of that constitutional authority certainly includes the power to agree with other states on a system to transfer illegal entrants through bordering states across ultimate national borders with Mexico for expulsion.  It certainly includes the power of individual states to agree with foreign nations to accept receipt of their nationals illegally present in a U.S. state.  In short, expulsion of illegal entrants invading a state is a constitutionally reserved state power independent of federal power.

In furtherance of Article I, Section 10, the Republican House should pass legislation to redirect to border states the $785 million allocated for migrant services (processing of illegals into the interior of the U.S.) in the monstrous inflationary $1.7 trillion omnibus bill, specifying that those funds instead be spent to aid the border states in repelling the invasion of illegals through construction of border walls, arrest of illegals, detention, and expulsion of them to Mexico or to countries of origin, and to take such other and further measures as are necessary to protect the lives, liberties, and properties of lawful citizens of the states against the effects of the illegal invasion.  In short, because Biden and Mayorkas have shirked their duties to protect the nation and are willfully enabling criminal, indeed terrorist, cartels to control American immigration policies, Congress should circumvent the administration and supply border states with direct funding and power to stop the illegal invasion.


Undoubtedly, if such a bill were to pass both houses, the President would veto it, but it is critical to pass the legislation and allow Biden to prove himself once again an enemy of the people and the republic.  Moreover, a two-thirds vote to override while a long shot is not impossible and will enable us to see clearly who is and who is not in favor of defending our country.  Indeed, while Biden’s actions and those of Mayorkas in refusing to fulfill their oaths of office (to take care that the laws are faithfully executed and to defend the United States) are impeachable, Congress may proceed with impeachment of both now with the Senate voting on removal forthwith for Mayorkas and with the Senate delaying a vote on removing Biden until his last day in office (to forego the horror of the inept Vice President Harris serving for any length of time if Biden is removed).

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