White Nationalist Nativist Republicans Embrace ‘Border Invasion’ Anti-Immigrant Hysteria/Fear Mongering

Ever since the “sainted” Ronaldus Magnus (Ronald Reagan) signed the Immigration Reform and Control Act of 1986, and granted “amnesty” (legal status) to 2.7 million individuals residing in the United States without legal permission who met certain conditions, and had entered the country before January 1, 1982, Republicans in Arizona have literally run every election since, every 2 years, on demonizing and dehumanizing immigrants, in particular our neighbors from Mexico. White nationalism and anti-immigrant hysteria/fear mongering is the foundation of every Arizona Republican political campaign.

The intentional cruelty behind this demonizing and dehumanizing of immigrants has only grown worse since Donald Trump rode down the escalator at Trump Tower and ran an explicitly racist white nationalist, nativist campaign in 2016 – some 30 years after Ronald Reagan welcomed immigrants as new American citizens.

Earlier this year, a pair of former Trump administration officials were pushing a novel legal theory they say could give Arizona broad powers to conduct immigration enforcement (exclusively the province of the federal government). Border ‘invasion’ theory gains steam:

They recommend sending migrants back across the border to Mexico – without the help or authorization of the federal government. It’s an idea that has gained traction with a group of Arizona Republican lawmakers, as well as gubernatorial candidate Kari Lake, a darling of the Trump faction of the Arizona GOP and the frontrunner to win her party’s nomination for governor.

The theory hasn’t impressed legal scholars and it has been criticized as inflammatory by Latino advocates, but in an election year where GOP campaigns are focusing heavily on the border, it’s playing a role in the message that some conservative politicians are pushing on border issues.

* * *

Ken Cuccinelli wrote in an October brief that, in relation to border security, “the Constitution provides a firm foundation for states to act decisively in the absence of the federal government.” The document points to Article I, Section 10 and Article IV, Section 4, and Cuccinelli argues the latter section provides a “self-help” remedy by which a state can declare that they’re facing invasion. If the federal government doesn’t take sufficient action, a state can take matters into its own hands and use “state war powers.”

The principal goal, according to the brief, would be to use National Guard personnel or state troopers to conduct deportations outside the scope of the federal immigration system.

Cuccinelli concedes there is no case law directly supporting his interpretation, but he asserted the U.S. Supreme Court’s decision in 1849 in Luther v. Borden implies that the court can’t decide – it’s simply up to the state to declare an invasion if it’s happening. The Luther decision relates to the constitutional guarantee of a Republican form of government, which is mentioned before invasion in Article IV, Section 4. Ilya Somin, a law professor at George Mason University, said the court’s ruling on one aspect of that clause can’t simply be extended to another part. “It doesn’t follow that the definition of ‘invasion’ is also nonjusticiable,” he wrote in an email.

In other words, this is some horseshit lawyering from a nativist political hack.

Attorneys like Paul Bender, a professor of constitutional law at Arizona State University, have dismissed Cuccinelli’s invasion theory. Bender said the notion that the Constitution’s references to “invasion” mean anything other a foreign military action is “not a serious legal argument.”

Ah, but this has never deterred white nationalist nativist Republicans who have built their political careers on demonizing and dehumanizing immigrants.

“Krazy” Kari Lake, a GOP candidate for governor, has been using language similar to Cuccinelli’s proposal for months. Her border plan, released earlier this month, borrows liberally from his ideas, saying she’ll draw on Article I and Article IV to create a border security force that will arrest and remove migrants from the country.

“Arizona will invoke our inherent power to fend off the invasion at our southern border in the absence of federal protection,” the policy states.

Karrin Taylor Robson, a GOP gubernatorial candidate who is viewed as a more moderate than Lake [by whom? She is just as crazy as Lake, and scarier because she has the resources to self-fund her campaign], also used the word “invasion” in her first TV ad to describe the situation at Arizona’s southern border. But a spokesman for her campaign didn’t respond to a question about whether she endorsed the invasion legal theory.

Back in January, Nativist Republicans call on Ducey to militarize the border to stop an ‘invasion’:

Cuccinelli spoke at the Arizona Capitol, flanked by several Republican state legislators [many of the usual suspects.]

At a press conference in the Capitol Rose Garden on January 12, more than a dozen GOP legislators including Rep. Jake Hoffman, R-Queen Creek, Sen. Wendy Rogers, R-Flagstaff, Sen. Kelly Townsend, R-Mesa, Rep. Leo Biasiucci, R-Lake Havasu City, Rep. Walt Blackman, R-Snowflake, Rep. John Kavanagh, R-Fountain Hills, and Rep. Lupe Diaz, R-Benson joined Ken Cucinelli, a one-time acting secretary of the Department of Homeland Security in Donald Trump’s administration, and Russ Vought, a director of the Office of Management and Budget in Donald Trump’s administration.

Ken Cuccinelli, a top United States Citizenship and Immigration Services official in Donald Trump’s administration, said Ducey has the constitutional ability to direct national guardsmen to remove those crossing the southern border. Cuccinelli, who is now a senior fellow on immigration issues at the conservative nativist Center for Renewing America, pointed to the “self defense clause” of the Constitution that prohibits states from engaging in war unless they’re facing immediate danger or active invasion. He said the recent influx of immigrants qualifies as such.

“Thumbprint them, give them food and water and send them back,” he said.

Under Cuccinelli’s approach, immigrants would be blocked from entry and returned immediately, without the due process outlined in U.S. immigration law or regard for federal and international asylum laws.

For nearly two years, federal border agents have been doing just that. The Trump and Biden administration have used the public health Title 42 authority, which effectively closed U.S. borders and allows border agents to immediately expel anyone they encounter at and between official ports of entry, even if they are seeking asylum under U.S. law [based upon the Coronavirus pandemic.]

The Remain in Mexico policy, which came back into effect last month, also allows federal immigration agents to send back asylum seekers to Mexico to wait and reside there while their immigration cases in the U.S. are processed.

Since [last] April, Gov. Ducey has deployed about 150 members of the Arizona National Guard on a “border security mission” to support local and state law enforcement with camera maintenance and monitoring, and medical operations in detention centers, among other things, according to the Governor’s Office.

Immigration fearmongering twists data and history

Sen. Sonny Borrelli, R-Lake Havasu City, said precedent for involving the National Guard in immigration affairs had already been set by President Woodrow Wilson’s National Defense Act of 1916, which was enacted in response to raids by armed Mexican revolutionaries and U.S. troops being held by the Mexican president. There’s no precedent for a governor commanding national guardsmen to expel migrants.

Rep. John Kavanagh, a Fountain Hills Republican, lamented that the Supreme Court found it was unconstitutional for Arizona to enforce immigration law. Laws like Senate Bill 1070 [he was a cosponsor], he said, allow police officers to detain those suspected of illegal entry, but there’s a disconnect when they’re turned over to federal immigration agents.

Many provisions of SB 1070 were voided in a historic 2012 ruling by the U.S. Supreme Court.

UPDATE: Senator resurrects part of Arizona’s SB 1070 that judge ordered state not to enforce:

Legislation approved Thursday by a Senate panel could result in the federal government once again suing Arizona over its laws dealing with illegal immigration.

[Senate Bill 1379] by Sen. Wendy Rogers, R-Flagstaff, takes an existing law — a part of the state’s highly controversial SB 1070 — and increases the penalty.

But attorneys for the state signed a deal in 2014 with the U.S. Department of Justice agreeing not to enforce that law.

In exchange, federal attorneys said they would drop their legal challenge to the “papers, please” part of SB 1070, the 2010 law that sought to create new state laws to deter illegal immigration.

That deal was reduced to an order signed by U.S. District Judge Susan Bolton permanently enjoining enforcement of the law.

Sen. Martin Quezada, D-Glendale, who voted against SB 1379, told Capitol Media Services after Thursday’s hearing that the state is risking being dragged back into federal court over an issue that was settled years ago.

“This was an agreement that the state of Arizona made knowing that it would have been struck down anyway,” he said of the underlying law.

“The real problem is when we legally apprehend them, the current administration rolls out the welcome wagon and relocates them,” Kavanagh said. [He is still bitter about “his precious” SB 1070 being gutted by the federal Courts.]

Rep. Jake Hoffman, R-Queen Creek, misrepresented crime data to claim rising immigration has contributed to a spike in crime. In fact, the Customs and Border Protection report that he cited describes the previous convictions of non-citizens the agency arrested, not only crimes they had committed after coming to America. Hoffman didn’t provide sources to show that immigrant criminal activity significantly contributed to overall crime rates. [But of course not.]

Hoffman instead touted the legislature’s surplus and an estimated $1.8 billion in one-time money available for the upcoming fiscal year.

“There’s not a price too high for your safety,” he said.

Lake Havasu City GOP Rep. Leo Biasiucci echoed Hoffman, blaming Arizona’s rising drug and human and sex trafficking problems on the “open border.”

Nativist rhetoric has driven white supremacist terrorism

[The] “invasion” terminology has long been used by the nativist movement in Arizona and elsewhere. It has also been used by white supremacist terrorists like the El Paso shooter, who targeted Mexicans at a Walmart, and the Christchurch, gunman who killed Muslims at two mosques in New Zealand.

The claim that the rise in border crossings is not an issue of illegal immigration was a common thread during the conference. Cuccinelli in particular said it isn’t a matter of crafting immigration law, but rather in defending against an “invasive” force.

When asked about asylum seekers, Cuccinelli said that Arizona follows all treaties, including the convention against torture.

One of the treaties signed by the U.S. is the 1967 Protocol, which states that countries must not send refugees back to their country of persecution, or to countries that would do so. The Refugee Act of 1980 also declared the U.S. policy of aiding refugees, including resettlement or repatriation where necessary.

In a 2021 report titled Delivered to Danger, Human Rights First found there were “at least 1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum seekers and migrants forced to return to Mexico.”

According to reports from the U.S. Customs and Border Patrol, average daily encounters between CBP officers and migrants ranged from 5,500 and 6,900 from March to September. From October onwards, encounters fell to a daily average of  less than 2,500.

For pastor Rep. Lupe Diaz, R-Benson, unlawful border crossings have a biblical angle.

“God is the one that designated borders,” Diaz said. [WRONG! Nation states fix national borders.]

Diaz noted that, in the Bible, entry into Israel required circumcision. In the United States, he said, the requirements are only legal entry and the oath of allegiance. In reality, the process of naturalization can take decades to complete and isn’t always open to all who enter the U.S. legally.

Cuccinelli urged Ducey to take action, not merely promise to. The resources and legislative backing is there, the rest is up to Ducey, he said.

“Arizona has the power to decide if it is being invaded, and has the power to defend itself,” Cuccinelli said. “Do not pass go, do not ask Joe Biden.”

Rep. Jake Hoffman sent a letter to our partisan hack Attorney General Mark Brnovick aka “Nunchucks” (or is it Numbnuts?) asking the AG to weigh in on whether the invasion theory holds legal water. Since he is running for U.S. Senate, guess what Nunchucks opined?

Howard Fischer reports, AG Brnovich: Arizona can ‘engage in war’ on border:

The actions of drug cartels and smugglers on the border constitute an “invasion” that allows Gov. Doug Ducey to use the National Guard to “engage in war,” according to Attorney General Mark Brnovich.

In a new legal opinion Monday, Brnovich says the U.S. Constitution says a state may defend itself when it has been “actually invaded, or in such imminent danger as will not admit of delay.” More to the point, he said this “invasion” need not be in the traditional sense of a military force [yes, it does] but can also be applied to “invasion by hostile non-state actors such as cartels and gangs.”

And, potentially most significant, Brnovich said Arizona need not get permission from the federal government to act.

In issuing the 25-page opinion, Brnovich, who is a candidate for U.S. Senate, took multiple slaps at what he said is the failure of the Biden administration to do its duty to protect Arizona from invasion.

* * *

At the heart of the opinion are two provisions of the U.S. Constitution.

One obligates the federal government to protect states from invasion. The other allows states to act on their own when invaded.

Brnovich acknowledged that courts have blocked states from using this second section to act on their own to protect themselves solely from an invasion by people crossing the border illegally. But the attorney general said what’s at issue here is different.

“Mexican and Central American cartels are engaging in brazen attacks on Arizona, trafficking in drugs and human beings,” he wrote. And Brnovich noted that the president said in a 2021 proclamation that drug cartels and human traffickers are “actual threats” to the country.

“Unfortunately, the federal government has failed to protect Arizona from this threat,” he said. “However, the state, through its governor as commander-in-chief can exercise its own power of self defense.”

* * *

Brnovich said the drafters of the U.S. Constitution understood that it was designed to allow the use of a state militia — in Arizona’s case, the National Guard — to protect against not just foreign hostility but also “ambitious or vindictive enterprises of a state’s more powerful neighbors.”

“This phrase includes for-profit activities that involve violence,” Brnovich said. “The cartel; and gang activities described above involve inflicting brutal violence in the pursue of profit and would thus qualify.”

Brnovich, however, was careful to say that his conclusion that Arizona was being invaded is not a license for anyone to take action.

“Nothing in this opinion should be read as authorizing any use of force by anyone other than in the chain of command under the governor,” he wrote.

“Only the governor of the state of Arizona has the power to make a final determination that such exercise is justified,” Brnovich said. “Similarly, only the governor has the authority to establish the exact parameters for the exercise of the defensive use of force.”

There are other concerns, including federal law and treaties, though Brnovich did not say which might come into play.

And there’s are other potential limits about where the governor could deploy soldiers on his own.

“Particular attention must be paid to the state’s relationship with Native American tribes with reservations at the Arizona-Mexico border,” Brnovich said, cautioning that the governor must remain cognizant of tribal sovereignty.

We're watching @GeneralBrnovich move the Overton window in real time with his radical and lawless opinion.

Now, GOP gubernatorial candidates are jumping through it.https://t.co/D424Vw5axL

— Jim Small (@JimSmall) February 14, 2022

It is a rare occasion when I agree with anything by resident GQP apologist at The Arizona Republic, Robert Robb, but this just goes to show how incredibly wrong AG Nunchucks is when we can both agree on this. Arizona AG Mark Brnovich’s border ‘invasion’ opinion is sloppy and misleading:

Attorney General Mark Brnovich’s opinion that Arizona is being invaded at the southern border and has a constitutional right to self-defense is stunningly sloppy.

The document is as much a political statement as a legal analysis. It places a harsh spotlight on the unseemly fusion that has occurred between Brnovich’s Attorney General’s Office and his U.S. Senate campaign.

At issue are two provisions of the federal Constitution. Article IV, section 4 says that: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”

Even if what is occurring at the border is regarded as an invasion, and even if the conclusion is reached that the federal government has failed in its obligation to protect Arizona against the invasion, there is nothing in this provision that authorizes the state to take action in its stead.

That supposedly comes from Article 1, section 10. That says, in relevant part: “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.”

War means war, not better law enforcement

Brnovich spends a lot of time in the opinion pondering whether the invasion has to be by foreign powers or can be by non-state actors, such as human smugglers and drug cartels. He concludes that the phrase “actually invaded” can include by non-state actors and that Arizona has been so invaded.

However, he spends not a nanosecond on the true heart of the legal issue: What does it mean to “engage in war”?

Section 10 is a long list of things states are prohibited from doing, such as creating their own currency. That includes engaging in war, unless actually invaded or in imminent danger of such.

In other words, states have a right to defend themselves independent of the federal government if faced by the kind of invasion that warrants the use of the means of war, not just better law enforcement.

What war powers really are

In war, enemy combatants can be shot and killed without any regard for due process. The laws of war require combatants to minimize the killing of non-combatants, but assumes that there will be some. The laws of war permit enemy combatants to be held as prisoners for the duration of the conflict, with standards of care but minimal due process rights.

Section 10 authorizes the states to “engage in war” without waiting for the federal government in certain dire circumstances where the means of war are justified. It does not say that if the federal government fails to secure a border a state can conduct otherwise prohibited border law enforcement activities.

Brnovich’s opinion does not say that Arizona can use the means of war at the southern border, which is only thing Section 10 covers. Indeed, the opinion says that anything that Gov. Doug Ducey might choose to do in exercising the state’s purported constitutional right to self-defense at the border must “be consistent with applicable federal law.”

Which federal laws or policies can Arizona ignore?

This is another example of intellectual sloth. If the state has a constitutional right to take border enforcement action, it can’t be restricted or constrained by federal statutory law or policies.

Ducey is already doing everything federal law permits a state to do regarding border enforcement. If Brnovich is asserting that Ducey has a constitutional ability to do more, which federal laws and policies must he follow in so doing and which can he ignore?

Brnovich doesn’t deign to say.

That this was as much a political statement as a legal analysis is revealed by the attacks on the Biden administration’s border enforcement performance that pervade the document. To cite just one example, Brnovich refers to “the unprecedented actions of the current presidential administration to destroy operational control of the border.”

Brnovich is wrong to combine campaign and office

The unseemly fusion was revealed on Twitter. Brnovich the AG tweeted out a statement about the opinion. Virtually simultaneously his campaign retweeted it, with Brnovich the candidate’s claim that “I’m declaring war on the southern border invasion.”

Candidate Brnovich meant “war” figuratively. Section 10 means it literally.

President Joe Biden’s immigration and border enforcement policies are fair political game. But Brnovich’s sloppy legal/political opinion feeds unhealthy fantasies that there is meaningfully more that the state could do to compensate for the federal failure.

That’s reckless and irresponsible.

Brnovich doesn’t really have much of a U.S. Senate campaign operation. He’s not raising much money or attracting significant grassroots support. His activities as AG, and the attention he can attract through them, are his senatorial campaign. [This is an abuse of power and misuse of government resources.]

Brnovich is cheating, and misserving, the people of Arizona in his day job.

Robert Robb stops short of calling for AG Nunchucks to resign, as his colleague Laurie Roberts has already done. Why pull your punches, Robb?

Tim Steller of the Arizona Daily Star pulls no punches (see next post).