Arizona's top prosecutor: Gov. Ducey can use war powers to fight border 'invasion'

PHOENIX — 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 a legal opinion from Attorney General Mark Brnovich.

Brnovich says in the opinion issued Monday that 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.” This “invasion” need not be in the traditional sense of a military force, but can also be applied to “invasion by hostile non-state actors such as cartels and gangs,” the option says.

And, 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 the U.S. Senate, took multiple slaps at what he said is the failure of the Biden administration to do its duty to protect Arizona.

He also puts pressure on Ducey, who has not been a political ally — and could enter the Senate race against him — to do more than what he has done to date: deploy about 200 Guard soldiers to the border in support roles like monitoring surveillance cameras, analyzing data and providing administrative support to local law enforcement.

Ducey agrees with some of what Brnovich says of the situation, the governor’s press aide C.J. Karamargin told Capitol Media Services.

“The number of people and drugs we have seen come across our border this year is unprecedented,” he said, saying even Homeland Security Secretary Alejandro Mayorkas admitted the situation is the worst it has been in more than two decades.

“This administration needs to be held accountable,” Karamargin said. But he took a swat at Brnovich for not acknowledging what the governor already is doing.

“For Attorney General Brnovich to imply the Guard is not on our border does them a serious disservice and shows that he fails to appreciate the commitment these men and women have to protecting Arizona,” Karamargin said.

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.”

In his opinion, Brnovich provided a litany of issues along the border. That includes cartel involvement in human smuggling and sex trafficking, violence along the border and criminals apprehended at the border.

“These facts satisfy the definition of ‘invasion’ empowering the governor to exercise his authority,” he said. And 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 pursuit 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 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.

The opinion was issued in response to a request by Rep. Jake Hoffman, R-Queen Creek, who called on Ducey last month to use war powers to repel what they believe is an invasion.

“An invasion would normally be reference in terms of a nation-state invasion,” he said at a news conference with about 20 other Republican lawmakers. “But when you look at these numbers, I think it’s safe to say that this is an invasion.”