Big Idea

• There is a crisis at Arizona’s southern border
• It legally qualifies as an “invasion” as defined by the US Constitution
• Arizona has the power to defend itself
• The United States faces the worst border crisis in more than two decades
• Read more...

Mexican and Central American cartels are engaging in brazen attacks on Arizona

PHOENIX – Attorney General Mark Brnovich announced his office (AGO) issued a legal opinion today determining the current crisis at Arizona’s southern border, fueled by violence and lawlessness of cartels and gangs, legally qualifies as an “invasion” under the U.S. Constitution, and Arizona has the power to defend itself.

“We were asked for an opinion and are thus providing Arizona policymakers with our legal analysis," said Arizona Attorney General Mark Brnovich. "The Constitution recognizes Arizona’s interest and power to defend herself from this type of invasion.”

Representative Jake Hoffman submitted a formal legal opinion request to the AGO asking whether the federal government is failing – intentionally or unintentionally – to uphold its obligations to protect our state from invasion under Article IV, Section 4 of the U.S. Constitution.

The AGO concludes that the violence by cartels and gangs legally qualifies as an invasion, but it's up to the Governor to make that actual determination. If that happens, the Governor as Commander-in-Chief has independent authority under the State Self-Defense Clause of the Constitution to defend Arizona from the actual invasion. 

Today’s opinion comes as the United States faces the worst border crisis in more than two decades. Acting as if they are above the law, Mexican and Central American cartels are engaging in brazen attacks on Arizona, trafficking in drugs, weapons, and human beings. 

Drug Trafficking

The cartels are pouring deadly drugs like fentanyl and heroin into the United States. In December 2021, the AGO, Scottsdale Police, and the Drug Enforcement Administration (DEA) seized 1.7 million fentanyl pills worth $9 million. They also seized ten kilograms of powdered fentanyl and one pound of methamphetamine. The drugs were from the Sinaloa Cartel. According to the DEA, “the Sinaloa Cartel primarily uses trafficking routes that go through Arizona,” and the Phoenix area is a major cartel drug trans-shipment hub.

Deaths from drug overdoses are dramatically escalating, and most of that increase is driven by fentanyl and other opioids. For adults between 18 and 45, fentanyl overdose is the leading cause of death, killing more adults in this age group than car crashes, gun violence, or COVID-19.

Human Smuggling

Human smuggling is a lucrative market and in February 2021, it brought in more than $14 million a day for cartels and gangs. Annually, the cartels and gangs get billions of dollars a year from human smuggling. So it's no wonder that criminal organizations would be willing to engage in violent cross-border attacks to protect their profits.

Violence at the Border

The cartels' smuggling of humans and drugs is bringing more violence to the border crossing into the United States. Unauthorized individuals have engaged in a number of violent attacks in Cochise County, which shares an 83-mile border with Mexico. Individuals believed to be cartel drug smugglers are regularly caught on camera crossing the border, dressed in camouflage and carrying weapons to protect their drug loads. Border area ranchers have experienced this violence firsthand, including one who was killed the day after he reported a drug load to authorities.

Copy of opinion here.

AGO Opinions

Only a member of the legislature, a public officer of the State, or a county attorney can submit an opinion request to the AGO on legal questions pertaining to their office. The AGO cannot issue opinions for private citizens nor offer legal advice to private citizens.

Video of the above drug seizure is available here. 

From the Arizona House of Representatives and State Representative Jake Hoffman:

Attorney General Opinion Finds Federal Government Has Failed to Protect Arizona from Invasion on Southern Border, State Has Legal Authority to Defend Itself

STATE CAPITOL, PHOENIX State Representative Jake Hoffman today applauded a formal legal opinion issued by Arizona Attorney General (AG) Mark Brnovich finding that Arizona has the legal authority to protect itself from the current invasion occurring on its southern border.

“I’m glad to see that Attorney General Brnovich today agreed with my assessment that the crisis occurring on our southern border constitutes an invasion and a total failure by the Biden administration to fulfill its constitutional obligation to protect the people of Arizona,” Representative Hoffman said. “This groundbreaking legal opinion further reinforces what I, and my colleagues at the state Capitol, have been calling for, that Arizona under Article I, Section 10 of the United States Constitution has the authority to step up and protect itself from this invasion. The human smuggling, cartel drugs and violence, sex trafficking, and other illicit activity must end. I call on Governor Ducey to utilize the Article I, Section 10 powers afforded to Arizona by the U.S. Constitution to end the invasion and secure our border.”

Today’s Opinion from the AG was issued in response to Representative Hoffman’s request in October for a formal legal opinion of whether the Biden-Harris Administration has failed – intentionally or unintentionally – to uphold its obligations to protect the state from invasion under Article IV, Section 4 of the United States Constitution.

The AG’s Opinion examines the question of what constitutes “actually invaded” for purposes of Article I, Section 10 (“State Self-Defense Clause”) and “invasion” for purposes of Article IV, Section 4 (“Invasion Clause”) of the U.S. Constitution. Also, whether states retain the constitutional power to defend themselves when “actually invaded” by hostile non-state actors such as armed cartels and gangs, or only by foreign powers. Additionally, whether the current crisis at our border with Mexico satisfies the definitions of “actually invaded” and “invasion.”

The Attorney General concluded that, “The federal government’s failure to secure the border and protect Arizona from invasion is dangerous and unprecedented. Thankfully, the Founders foresaw that States might need to protect themselves from invasion and made clear in the Constitution that States retain the sovereign power to defend themselves within their own territory. As discussed above, ‘actually invaded’ and ‘invasion’ in the State Self-Defense and Invasion Clauses is not limited to hostile foreign states but includes hostile non-state actors. The violence and lawlessness at the border caused by transnational cartels and gangs satisfies the definition of an ‘invasion’ under the U.S. Constitution, and Arizona therefore has the power to defend itself from this invasion under the Governor’s authority as Commander-in-Chief. An actual invasion permits the State to engage in defensive actions within its own territory at or near its border.”