Cuccinelli Endorses Constitutionality of Gov. Rick Perry's Defense of Texas Border

Texas Governor Rick Perry said earlier today that he is beginning deployment of up to 1,000 Texas National Guard troops to the border with Mexico to address the growing surge of illegal border crossings. Texas leaders say the current wave of unaccompanied minors making the crossing is tying up existing federal resources, allowing drug cartels and other criminal elements to exploit wider gaps in Border Patrol coverage.

As we’ve written previously, Gov. Perry has been a vocal critic of the Obama administration’s handling of this crisis, going back at least to May 2010, when he warned the president of the dangers of encouraging additional unlawful entry by unaccompanied minors. Rather than act on the crisis, the president poured more fuel on to the fire just a month later by announcing the DACA program—essentially de facto amnesty for immigrant children. The President has continued to ignore Perry’s calls for reinforcements, while only giving what Perry calls “lip service” to enforcement priorities. Hence, Perry has decided to act, using his powers as commander of the Texas National Guard.

Naturally, lefties are in a tizzy about this cowboy governor “militarizing” the border.

But, they can’t accuse him of stepping on federal business. Ken Cuccinelli reminds us in a Facebook post of the inherent Constitutional basis for Perry’s actions. We all are used to the idea that the Governor can call up the National Guard in a natural disaster. But what about in response to an actual invasion?

While rarely discussed, Article I, Section 10, Clause 3 of the Constitution states as follows: ‘No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, OR ENGAGE IN WAR, UNLESS ACTUALLY INVADED, or in such imminent Danger as will not admit of delay.’ [Emphasis Cuccinelli’s]

The border states that are being directly invaded by illegal immigrants – Texas, Arizona, and New Mexico – may constitutionally deal with the invasion themselves, at least as it relates to attempting to stop the flow across their own borders. And there is nothing President Obama or those in Washington can do to stop any of these states, if they are determined to act.

In the article below, Governor Perry appears to be prepared to call out the National Guard to protect the borders of Texas from the worsening invasion. He has full constitutional authority to take that action. Then-Democrat Governor of New Mexico, Bill Richardson, did the same thing during his term as Governor.

However, in theory at least, President Obama could ‘federalize’ the Texas National Guard, i.e., call it up into federal service, at which point it effectively becomes an active duty element of our national military answerable to the President, not the Governor of Texas. But as I said earlier, if Texas is determined enough, they can use their own police, sheriffs, Texas rangers, and whatever else they’ve got aside from the National Guard, and there is truly nothing the federal government could do to stop them.

The founders gave the states tools to counter-balance a failing federal government. It sounds like Texas may finally step up, where those in Washington have failed.

Time will tell.

Indeed it will. Let’s hope the feds eventually do the right thing and reimburse Texas for doing what should have been done by the active duty military a long time ago.