HARTWELL: Obama lawsuit invites fortified state militia

Constitution leaves room for Arizona to secure border

Arizona has enacted a law that enables state and local police to support fed- eral immigration en- forcement, in a care- fully circumscribed manner. This moderate statute is under vicious attack by the Obama administration and assorted amnesty advocates. Yet Arizona and her sister states in the Southwest could take dramatically stronger actions to bring order to the border. And they would have both history and the Constitution on their side.

History first. In 1916, criminal gangs rivaled the authority of the Mexican government. Led by Pancho Villa, they launched attacks against Americans on both sides of the border. Following a bloody raid that killed American soldiers and civilians in New Mexico, President Woodrow Wilson dispatched 15,000 state militia to the border and sent Gen. John J. “Black Jack” Pershing and thousands more soldiers into Mexico after Villa and his bandits. Once Pershing’s force clashed with the Mexican army, Wilson ordered another 75,000 National Guardsmen to the border region. Supported by an enraged American citizenry, Wilson reacted swiftly and with substantial force to secure our southern border and drive out what was, in effect, a marauding army of Mexican invaders.

Today, armed drug cartels openly challenge the Mexican government. Deadly battles occur frequently in Mexico, where more than 6,500 people were killed by cartel forces last year and more than 5,000 have been killed so far this year. Paramilitary bands have entered the United States illegally and set up sentry and command posts. Federal authorities have actually ceded control of public land in Arizona to these invaders. Cartels claim openly that Mexico’s border with the United States has been moved northward to Interstate 8. Federal officials have even advised the public to avoid the Sonoran Desert National Monument, which is not on the border; it’s 35 miles southwest of Phoenix.

Pinal County Sheriff Paul Babeu reports that attacks on police and American citizens have increased in the past several months, saying, “It is literally out of control.” Mitch Ellis, federal manager of the Buenos Aires National Wildlife Refuge in southern Arizona, warns that the area is “increasingly violent” because of “smugglers and border bandits.” The police chief of Nogales, Ariz., has received threats that cartels may use snipers positioned just across the border to target law enforcement personnel in the U.S.

Of course, this is not just about trafficking in drugs and illegals. According to reports, “hundreds of Somalis” with ties to “terror cells” have infiltrated the United States from Mexico. Al Qaeda, Hezbollah and kindred groups are all reported to be actively moving their members across the border. Trust me, these folks are not entering the United States illegally in order to get work in your neighbor’s backyard.

With Wilson’s reaction to Pancho Villa’s pistoleros as precedent, President Obama has declined to be Wilsonian. He has refused to step up border enforcement. He and Attorney General Eric H. Holder Jr. have attacked the Arizona law, dishonestly claiming that it promotes racial profiling and is “anti-immigrant.” They have filed one lawsuit to block enforcement of the law and have warned that if the initial litigation fails, they will likely bring another case on a different legal theory. The administration asserts, disingenuously, that reports of crime by illegals are exaggerated. Funding for a fence has been cut. The president has ordered 1,200 National Guard troops to the region, but only to perform “support functions.”

Thus, Arizona’s modest enforcement measures are under attack by the very federal government whose failure to secure the border precipitated their adoption. Is Arizona at the mercy of the Obama administration, or does it have some options here?

For one thing, Arizona can form and expand its own state militia. Such forces were common when our nation was founded, and the Second Amendment recognizes that a “well-regulated Militia” is “necessary to the security of a free State.” In short, Arizona and other states can raise and arm their own military forces. But, for what purpose can such forces legally act?

The Constitution is informative here. In Article IV, Section 4, the federal government is required to “protect each [state] against Invasion; and [on request of the state government] against domestic Violence.” As St. George Tucker noted, this provision guards against “the possibility of an undue partiality in the federal government,” for example a “sectional” president who might, for political reasons, decline to protect states in a certain region. Today the federal government, at the direction of the president, has declined to carry out its duty under Article IV. Leaving aside its other possible consequences, this intentional failure to protect Arizona raises the question of what action the state is now entitled to take under the Constitution.

This brings us to Article I, Section 10, Clause 3, 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.”

So, the militias organized and armed by a state may go to war when the state has been invaded or is in imminent danger. This is clear under Article I, and plainly justified when the federal government has deliberately failed to protect against invasion as required by Article IV. As Joseph Story explains in his treatise on the Constitution, the prohibition against states engaging in war is “wisely” limited by “exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union.”

At the time of our nation’s founding, the states surrendered certain limited powers to the federal government. Logically, foremost among the enumerated powers delegated to the new central authority were those relating to foreign affairs, including the war powers. But the states were prudent; they had a logical concern that if the federal government should fail in its duty to protect them from “invasion” or “imminent danger,” perhaps for reasons of political “partiality,” then the states should have a robust right to defend themselves, including by armed force. And so they do.

Ray Hartwell is a Navy veteran and a Washington lawyer.

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