My friend Ray Hartwell, writing in the Washington Times, argues that Arizona could lawfully take much stronger action than it has thus far to bring order to the border. Ray points to Article I, Section 10, Clause 3 of the U.S. Constitution which provides that “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (emphasis added)
The proviso reflects the Founder’s concern that the federal government might fail in its duty, under Article IV, Section 4, to “protect each [state] against Invasion; and [on request of the state government] against domestic Violence,” perhaps for reasons of political “partiality.” In that event, the states would have a robust right to defend themselves.
It is not clear what counts as an “invasion” or “an imminent Danger [that] will admit of delay.” The latter phenomenon might be limited to situations where the feds don’t have time to act, not ones in which it doesn’t believe military action is required.
Still, things could get to the point along the border that Arizona’s right to “engage in war” might be be triggered (Ray suggests, I think, that they already have). And even discussing a scenario in which Arizona might need to go to war to defend its border highlights the irresponsibility of the Obama administration and its decision to sue Arizona for taking moderate measures to protect its residents.
The federal lawsuit is based solely on a theory of preemption — it does not allege that Arizona’s law violates anyone’s civil rights. It’s essentially a power grab by the Obama administration to further its political interests, which do not include robustly defending the people of Arizona. Ray’s article suggests to me that the White House, through its lax enforcement and its suit against Arizona, is playing a dangerous game.
UPDATE: The federal government has just announced that 1,200 additional National Guard troops will be deployed on the southwest border on August 1. About half of them will be sent to Arizona. However, Arizona Senators McCain and Kyl say that the new deployment is grossly inadequate. McCain believes that at least 6,000 troops are needed in Arizona.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
“Proclaim Liberty throughout All the land unto All the Inhabitants Thereof.” Inscription on the Liberty Bell