A Constitutional Comedy of Errors Will Lead to Constitutional Tragedy

The pressing question is not whether the border crisis meets the constitutional definition of “invasion” but whether the Constitution will survive widespread anarchy.

Professor John Yoo, constitutional law professor at Berkeley and Senior Fellow at the American Enterprise Institute, has published a remarkable article in National Review. He contends that Texas Governor Greg Abbot’s November 16 letter upbraiding Joe Biden for refusing to honor the Constitution’s guarantee that the federal government shall protect the states against the invasion of illegal border crossers is a misrepresentation of the Constitution because no actual “invasion” has taken place. In fact, says Yoo, the Texas governor’s plan to use the Texas National Guard to prevent illegal aliens from entering Texas is itself a violation of the Constitution, because immigration and border control fall within the plenary power of the federal government even if the Biden Administration refuses to exercise this exclusive power.

Under the Constitution, Congress is granted power to “establish an uniform Rule Naturalization.” By extension, this means that Congress has the power to determine, as an aspect of the nation’s sovereignty, the conditions for entry into the United States. More than a century ago—just when the progressive dream of the world homogeneous state was emerging—the Supreme Court announced what was considered the settled sense of the matter when it remarked that “it is an accepted maxim of international sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.” It is important to note that the Court here emphasized that border control is not only an intrinsic aspect of sovereignty, but “essential to self-preservation.”

Under progressivism, “self-preservation” is no longer considered a rational goal; it is subordinate to diversity and openness. We hear it every day: “diversity is our strength.” Open borders, the invitation to the nations of the world, is the key to increasing diversity without any consideration of “self-preservation.” Terrorists and criminals of all stripes have rushed to fill the diversity void.

Professor Yoo’s constitutional exegesis would make the Constitution a “suicide pact.” The strict interpretation of one word—an interpretation which is highly questionable—means that the Constitution may be sacrificed on the altar of false original intent jurisprudence.

Professor Yoo admits (how could he do otherwise?) that “President Biden undoubtedly bears heavy responsibility” for the failure to control the border. Indeed, he “has allowed the southern border to fall into chaos, with a million illegal aliens [it’s actually 3 million] crossing into the United States in the past year. This record-breaking surge has imposed heavy cost on communities in Texas, Arizona, and California, created a route for the trafficking of people and drugs, and led to thousands of deaths of migrants at the crossings.”

No mention here of the many deaths of American citizens, those who have been killed or murdered by illegal immigrants, or who have been raped, tortured, defrauded, victimized by identity theft, extorted, or terrorized by MS13 (many of these crimes have been committed by illegal aliens who had been previously deported, some multiple times). Nor does Yoo mention the massive drug trafficking that takes place across the border and how many Americans are killed by fentanyl as a result. Moreover, known terrorists have been caught trying to cross the border and other terrorists are known to have crossed without having been apprehended. It is impossible to argue that this “chaos at the border” does not constitute an imminent national security emergency.
A Deliberate Progressive Policy Permitting Invasion

We must understand that the open border is a deliberate policy of the Biden Administration, and the resultant crime is the owing to that policy. Millions of illegal aliens crossing the border may not be an invasion in Professor Yoo’s questionable understanding of original intent, but it is certainly an invasion in the only sense that matters—it is real, and it has real life consequences.

“An originalist interpretation of ‘invasion’,” our professor assures us “would exclude the border crisis.” The clause in the Constitution protects states against an invasion that is “imminent danger,” and the “border crisis, awful as it is, does not create an imminent danger.” Drug cartels, we are told, do not seek to aggrandize territory; they merely seek “profit, not political objectives.” But, of course, it is obvious to anyone with the least common sense that drug cartel networks as active throughout the entire United States as is the MS 13 terrorist network, are a danger in the sense the Constitution means it.

Yoo argues that the framers’ understanding was that an “invasion” occurred only when sovereign nations crossed borders using military force for the purpose of aggrandizing territory; pirates and Indians might be included as well, he adds. Leaving aside the question of Indians who may have represented sovereign nations, how can cartels be distinguished from pirates, who sought profits but not territory? Did they always act as the agents of sovereign governments or were most pirates “freebooters”? In any case, it is true that the cartels and MS 13 and the Mexican mafia, among others, do not hold territory by military force nor do these groups act directly as the agents of a sovereign government. But how is this not an invasion? Many inner cities are governed by heavily armed cartels just as effectively as they would be by military forces.

Undoubtedly the most absurd of Professor Yoo’s claims is that designating the “chaos” at the border with its influx of “millions” of illegal border crossers as an “invasion” would be an invitation for extremist groups to engage in violence against the invaders as self-styled militias defending the country against these invaders.

Professor Yoo makes another unwarranted leap of imagination: he claims that Texas might be so emboldened by its success in designating the illegal immigrant implosion as an “invasion” that it might invoke the “declare war” provision of the Constitution to “engage in war” against the “invaders.” This, of course, would be a clear violation of the Constitution as only Congress has the power to declare war. But one constitutional violation can easily...

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