Arizona’s Republican attorney general, locked in a tough U.S. Senate primary where border security is a top GOP issue, on Monday said the governor can use National Guard troops and state law enforcement to forcibly send migrants back across the border to Mexico without regard to federal immigration laws.
The formal legal opinion from Attorney General Mark Brnovich does not hold the force of law. And a constitutional expert has said the constitutional provision he is citing is meant to restrain the states, not empower them.
“I think the invasions the Framers had in mind were organized invasions by the governments of other countries, not by disorganized undocumented aliens,” Paul Bender, a constitutional law professor at Arizona State University, wrote in an email.
The opinion from Attorney General Mark Brnovich came in response to a request from a GOP state lawmaker. He highlighted his request at a news conference last month where he was joined by two former Trump administration officials who urged Republican Gov. Doug Ducey to use war powers to repel a surge of illegal immigration.
Brnovich embraced that theory in Monday’s opinion, noting the U.S. Constitution’s state self-defense and invasion clauses are not limited to an invasion by a hostile state.
Ducey’s spokesman responded by saying the governor has already had National Guard troops at Arizona’s border for nearly a year.
Ducey has aggressively challenged President Joe Biden’s border policies, including in last month’s state of the state address, when he said “the White House and Congress have decided to turn a blind eye” to what he called “a national crisis.”
Brnovich is among five Republicans competing in August’s primary election for the right to take on Democratic Sen. Mark Kelly in November.