Arizona's Constitutional War Powers

July 09, 2010

Arizona's Constitutional War Powers

By James Carender
55 Comments

Given the levels of illegal migration and narco-trafficking across its southern border, the State of Arizona deserves America's commendation for the remarkable restraint it has exhibited in dealing with what has become a most serious international and domestic problem.

Arizona Senate Bill 1070, signed into law by Governor Janice K. Brewer on April 23, 2010, is a tiptoe exercise through an immigration minefield. In its essence, however, the law demands roughly no more of an individual than is required to open an account at the local video store. Indeed, the law presumes that one is not an alien who is unlawfully present in the United States if a valid Arizona driver license, non-operating identification license, tribal enrollment or identification card, or U.S. federal- or state- or local government-issued identification is presented, and if that issuing entity requires proof of legal presence in the United States before issuance of the identification card (Arizona Senate Bill 1070, Section 2). The bill appears intended to work hand in glove with federal immigration statutes and to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States" (Section 1).

The route taken by the State of Arizona, enactment of Senate Bill 1070, is far less severe than it could have been if the route taken had been war, as granted to the states by the U.S. Constitution.

Article 1, Section 10, Cl. 3 of the Constitution of the United States of America provides that "[n]o state shall, without the consent of Congress ... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

This section of the U.S. Constitution gives to the State of Arizona (or any other State) the right to engage in war if "actually invaded" or if there is "such imminent Danger as will not admit of delay." This right is reserved to the states to be exercised without the necessity of obtaining the consent of Congress in the described exigent circumstances. Without question, the debate, should Arizona have chosen this road not heretofore taken, would have centered on the meaning of the terms "invaded" and "imminent danger." Those are, in fact, arguable issues. But if drug lords are posting sentries with AK-47s on hilltops inside the State of Arizona to protect drug transport routes, and if "coyotes" are ravaging the fragile Arizona desert with their never-ending human chains, then the debate is settled.

Enactment of Arizona Senate Bill 1070 should not have been necessary, nor should the State of Arizona ever be put into the position of having to choose war because of a "guarantee" in, again, the U.S. Constitution. Article IV, Section 4, of the Constitution of the United States of America provides that

[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and, on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This section of the U.S. Constitution clearly mandates that the United States government shall protect Arizona against invasion and, on application of the Arizona legislature (or the governor when the legislature cannot be convened), against domestic violence! President Obama, Senate Majority Leader Reid, and Speaker Pelosi are not fulfilling their constitutional duty to protect Arizona from the long-enduring invasion of drug smugglers and illegal migrants.

In a well-documented article, http://www.hsgng.org/pages/pancho.htm Joe Griffith describes how progressive Democrat President Woodrow Wilson was faced with a violent border situation, in 1915, when Pancho Villa and his men conducted raids along the U.S.-Mexico border. Villa and his men launched a horrific raid against the people of Columbus, New Mexico, killing many of the residents and burning much of the town. President Wilson dispatched Brigadier General John J. Pershing and his troops to protect the border.

Our Constitution is not purely a charter of negative liberties. It places affirmative burdens of utmost importance squarely on the shoulders of the members of Congress and the president. The Constitution demands of our national leaders (and guarantees) that the United States shall protect every state in this union against invasion. There has been (and continues to be) a critical failure on the part of the president (the Commander in Chief) and the U.S. Congress when it comes to border enforcement and stopping the invasion. Pancho Villa's "invasion" and destruction were not the actions of a government, yet President Wilson exercised his authority under the Constitution to send federal troops to protect the border. The current "invasion" has not been shown to be an invasion by the government of Mexico, and the question arises why President Obama cannot do as president Wilson did and secure our southern border. The president did take an oath to "preserve, protect and defend the Constitution of the United States," and that includes the Constitutional mandate that he shall protect Arizona and every other state from invasion.

The author is retired and a former felony prosecutor/assistant District Attorney in a Texas border town.