It has become commonplace for right-wing activists and GOP politicians to describe illegal migration across the southern border as an “invasion.” While much of this is just political rhetoric, some have argued that the Guarantee Clause of the Constitution, gives state and federal governments the authority to use military force to block such migration. The Clause states 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; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” Then-Arizona Attorney General Mark Brnovich advanced this theory as a justification for military action in a February 2022 opinion. Andrew Hyman recently made a similar argument at the Originalism Blog.
As a matter of logic and common sense, the equation of illegal migration and invasion makes little sense. Invasion involves large-scale use of force (or at least threat of force) to seize territory. Russia’s attack on Ukraine is an invasion. Migrants crossing a border in search of freedom and opportunity are not. We do, of course, have metaphorical uses of the word…
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