Securitization: A Solution to the Migration Crisis in the United States
Federal-State Coordination and the Compacts Clause
The New Digest is pleased to present a guest essay by Daniel Whitehead. Mr. Whitehead served in the General Counsel’s Office of Governor Ron DeSantis and has clerked on two federal courts, the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for Veterans Claims. He is a fellow of the Claremont Institute and James Wilson Institute. He is currently a Senior Fellow of the Hungary Foundation.
President-elect Donald Trump made ending illegal immigration and the deportation of illegal aliens, of which there are estimated to be at least 12 million, the top priority of his administration. Indeed, according to the vox populi, this is his mandate. This article outlines initial steps that must be taken to confront the issue of mass illegal immigration, describes the primary obstacle—judicial supremacism—to executing the mandate, and proposes a federalist vision in the form of a security compact under the Compacts Clause, based in part on observations of Judge Ho, that would authorize the states to engage in border protection and repatriation efforts without judicial interference.
The first step to confronting mass illegal migration would, of course, be enforcement of already existing federal statutes and the creation of barriers on the southern border. Another would be the vigilant enforcement of civil and criminal statutes, RICO or otherwise, against states, private businesses, and NGOs which facilitate migration through illegal economic incentives and travel assistance. It is well known that several NGOs involved in the illegal migration industry provide maps and other assistance to the caravans that routinely arrived at the border during the Biden administration (see 8 U.S.C. § 1324). In addition, certain states have so-called “sanctuary” jurisdictions which defy federal repatriation efforts. And some have already signaled that they will not comply with the Trump administration’s efforts to protect American citizens from illegal migration (possibly punishable under 18 U.S.C. § 242 or 18 U.S.C. § 111). These steps would bring about considerable improvement.
But the greatest difficulty to overcome is not recalcitrant states, but rather the rampant abuse of the judicial power. Executing Trump’s mandate through conventional civil and criminal processes will inevitably bring about protracted legal proceedings before judges hostile to his agenda. Having accumulated immense power in the judicial department over the last few decades, leftists will abuse this power to obstruct Trump’s efforts, just as they did during his first term. Nationwide injunctions, which can take years to undo, are certain in this hostile environment. And because our system currently operates on the premise of judicial supremacy, the least dangerous branch of government has final veto authority over virtually all matters of state business. Checking this otherwise unchecked power of the judiciary in at least the area of illegal migration would, therefore, facilitate the mandate’s execution.
A possible check on judicial abuse of power is for the federal government, through executive and legislative means, to securitize the problem of illegal immigration and treat it as a national security issue. Trump has already suggested using the military to assist in illegal migrant removal, citing Operation Wetback as precedent.
The courts are generally loathe to interfere in military affairs and would, given conventional case reasoning, give Trump much wider latitude than he would otherwise have proceeding with a purely civil approach. In addition to questionable optics, the difficulty here is that the federal government would bear much of the burden without clear coordination plans with the states, many of which would gladly assist in repatriation efforts given the chance.
Unfortunately, the federal courts have severely restricted the power of the states to defend the nation in this respect. States are not permitted to supplement or even parallel federal immigration laws because of rigidly-interpreted constitutional constraints, even when the federal government is flouting its own laws and facilitating mass illegal migration by design (a clear violation of the social compact—the deal made between the state and federal governments). Ironically, the courts have, in the name of separation of powers and due process, among other ironic justifications, prioritized the interests of illegal aliens and foreign countries over those of the states and American citizens.[1]
However, in accord with the principles of federalism, there is a constitutional device that may authorize the states to take a much more hands-on approach to repatriation efforts and bypass the judicial process. The key is the Compacts Clause of the Constitution. Article I, Section 10, Clause 3 reads: “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.”
The Compacts Clause is a provision of the Constitution that proscribes states from entering into most species of agreement or compact without congressional approval. The Framers included this provision to ensure that states did not enter alliances that threatened the unity of the nation or endangered the legitimate interests of sister-states.
But they left a reasonable exception. States can “engage in War” or form security compacts if “actually invaded.” The Framers provided this exception because they envisioned circumstances in which the benefits of typical congressional and judicial oversight over the constitutionality of state compacts would be outweighed by the need to respond to serious threats to civil order.[2] Indeed, an “invasion” is a military term. And the security compact would therefore end when the states, in possible coordination with the federal government (and military), ended the emergency conditions constituting the “invasion.”
Given the nature of this clause and its exception, it’s not implausible that willing states could enter a security compact (in coordination with the Trump administration) that would empower them to not only supplement and parallel current federal immigration law, but even repatriate illegal aliens, all without judicial interference, until the emergency conditions no longer obtain.
The primary objection to this approach is the question whether mass illegal migration constitutes an “invasion” under the Compacts Clause. According to some scholars and courts, the Framers understood an “invasion” in this context to mean organized state or non-state actor trespass into a state’s territory with hostile intent. On this understanding, the text would clearly apply to a foreign nation’s military (state actor) or pirates (non-state actor) entering a state with intent to do harm to its citizens or territory. This interpretation should also apply to cartels entering a state to engage in crime. But even under this understanding, mass illegal immigration could still constitute an invasion. Judge Ho has noted that “migration,” whether through affirmative action or omission, “can be weaponized by one sovereign to inflict damage on another.” History is replete with such examples. And other scholars, using relevant sources, have concluded that “invasion” had a more capacious meaning, to include “uninvited entry by groups of [uncoordinated] immigrants.”
In any case, the term “invasion” could be translated from the concerns of the colonies to the problems which modern states face. And this should not prove an impasse because the courts have done the same for hosts of constitutional and statutory terms. As the nature of historical circumstances have changed, so must our application of legal terms. Mass illegal migration causes not only economic, environmental, and political destabilization, but also presents other serious threats to national and state security in the form of crime, espionage, and terrorism. It’s not implausible that a form of generalized enmity could apply to masses of individuals engaging in illegal trespass with the intent to violate the laws of this nation for the purpose of siphoning resources from American citizens for their own private gain.[3] Indeed, mass illegal migration presents no less serious a threat to the security and well-being of a state and its citizens than a pirate ship in the 18th century.[4]
Furthermore, there is precedent for appraising mass illegal migration through the southern border as a species of “invasion” in modern history. Only years after World War II, President Truman’s Commission on Migratory Labor issued a report describing mass illegal migration as constituting “virtually an invasion.” And Herbert Brownell, the United States Attorney General who implemented Operation Wetback, likewise depicted the problem as “an actual invasion by illegal entrants from Mexico.” But whatever the merits of the textual arguments for or against understanding illegal immigration as an “invasion,” the vital feature of the security compact is that it should evade judicial review.
There are a few reasons why judicial abuse of power should not be a problem under a security compact. Indeed, Judge Ho set out several supporting arguments in his concurring opinion to United States v. Abbott. As mentioned, the judicial department tends to defer in military affairs and tries to avoid engaging in “political questions,” that is, matters more appropriate for co-ordinate departments to decide and those issues for which there are no judicially discoverable standards of review.
Judge Ho, in his exceptional opinion, provided significant support for the notion that the determination of an “invasion” is a political question. Indeed, if ever an issue were a military or political question, it is what constitutes an “invasion” sufficient to trigger the emergency exception to the Compacts Clause. Judges have no special expertise in deciding this issue and it’s unclear what standards they could conceive (invent) to assess whether a known security threat is an “invasion.” In Judge Ho’s words, “[c]ourts have no business deciding which national security threats are sufficiently serious to warrant a military response, and which are not.”
Furthermore, drawing a parallel between state and federal military action, Judge Ho observed that “Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that’s a nonjusticiable political question not susceptible to judicial reversal.” He also pointed out that “[there is] no principled basis for treating such authority differently when it’s invoked by a Governor rather than by a President.” And on a textualist note, he reasoned that “[i]f anything, a State’s authority to “engage in War” in response to invasion,” absent congressional approval, “is even more textually explicit than the President’s.” In fact, unlike the states, “there is no explicit vesting of Presidential power to engage in war—not even in response to an invasion.”
So, because this question is certainly of a military or political nature, the same logic that runs through federal case law with respect to conventional military and political affairs should apply here too. In more obvious cases, such as trespass into a state by the military of a foreign government, it would hardly be appropriate for the federal courts to evaluate whether a state security compact were constitutional or not.
Accordingly, were the states to make the military determination that mass illegal migration constituted an “invasion” and enter a security compact to implement martial law and deploy state militia to deal with it, the states would not require congressional approval under the Constitution and the security compact itself should not be subject to judicial scrutiny.
To underscore this point, there is no reason to suppose that the Framers excepted security compacts in emergency conditions from time-consuming congressional review but still subjected such compacts to the no less time-consuming judicial process. To permit judicial review of security compacts would completely undermine the whole point of the Compacts Clause exception, which is to expedite state response to emergency conditions without going through the usual, but lengthy, constitutional processes. In addition, it’s absurd to believe that security compacts should bypass Congress, the deliberative department which has the express power to declare war under normal conditions, but be subject to the whims of the judiciary, the branch the Framers believed to be the least dangerous and least fit (by the courts’ own admission) to assess matters of this sort. But what about checks and balances, one might object.
For this constitutional device, that is, the security compact, the most logical check on the abuse of power is the Commander-in-Chief of the Armed Forces and Congress. In other words, the very nature of the clause and the subject matter of its exception, that is, an emergency requiring a military response, suggests that the executive and legislative branches would serve as the exceptional check, rather than the courts, on abuses of power. “After all,” Judge Ho noted, “the United States possesses stronger military resources, not to mention the constitutional authority to call the State military into federal service.”
There’s no reason to think that this is a non-sensical deviation from constitutional norms: the President already has almost unfettered discretion in military affairs and the only real check on this power is the conventional political process. And to reiterate, the security compact is an express constitutionally-authorized process in line with the Framers’ commitment to principles of federalism.
In addition to limiting judicial interference with respect to mass illegal migration, the security compact potentially offers other benefits. For example, a state operation could likely tackle the problem in a less aggressive (optically superior) and more efficient manner than a federal operation. Because states often define the militia as all able-bodied citizens, states could possibly use law enforcement to carry out repatriation efforts in addition to their usual duties. So unlike a unilateral federal operation, which could include the large-scale presence of military personnel operating within the states, a state operation of the sort described would likely not affect the day-to-day lives of American citizens.
State authority to repatriate hostile aliens should also be immune from judicial interference under a security compact. This is because the usual jurisprudence on state powers in immigration-related cases would give way as the authority of the Constitution supersedes that of federal statutes. In United States v. Abbott, Judge Ho observed that “federal statutes ordinarily must give way to federal constitutional rights,” and that the federal government offered no “principled reason why Congress may enact statutes that violate rights under Article I, but not under the First Amendment.” In further support of this contention, he also pointed out that it would surely be unconstitutional for Congress to pass a law requiring states to obtain its permission before responding to an invasion.
Another benefit is the deprivation of birthright citizenship from the children of illegal migrants. Although birthright citizenship should not apply anyway, no serious person contends that it applies to the children of hostile aliens. And the declaration of an invasion would convert the legal status of illegal aliens, so long as the emergency conditions persist, to hostile aliens. In a recent interview, Judge Ho addressed this point, remarking that, “birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be.” (There are likely further constitutional and statutory rights that would not apply to hostile aliens, such as access to the courts and subsidized public education, but this goes beyond the scope of this short article.)
Finally, a last putative benefit of converting the legal status of illegal aliens to hostile aliens could be the enhancement of executive power to respond. In fact, Article IV, Section 4” requires the federal government to “protect each [state] against Invasion.” So were the states to declare an invasion and treat it as such, the crisis could form the basis of a federal military response. It’s well-established that the President does not need a congressional declaration of war to authorize military operations against hostile forces outside the country. This precedent should apply to hostile aliens inside the country the same way it would apply were the country invaded by a hostile state. In this scenario, the state militia could perform the ground-operation, to limit the effect on American citizens, and deliver the hostile aliens to federal forces for repatriation. Ideally, this process would insulate even the federal military efforts from intense judicial scrutiny.
Some on the Right might object to this proposal, citing the Biden administration’s exercise of emergency powers during the COVID regime. But the concerns that animated the Right with respect to Biden’s abuse of emergency powers do not obtain here for at least two reasons. First, this emergency, that is, illegal immigration, is not ideological, it is real and causing serious damage to the health, economy, and security of the nation,[5] including American lives lost to violent crime and drugs. The Biden administration abused its emergency powers during the COVID regime for base ideological (and probably pecuniary) reasons. This is evident because the DeSantis administration in Florida showed the federal government how to address COVID in relatively short order but was ignored.
And, more importantly, the actions taken to address this emergency will not adversely affect American citizens—only illegal aliens who, whether they are here for sympathetic reasons or not, should not be here. Those who are here for illegal reasons should not be permitted to use, ironically, the legal process to coerce the federal and state governments to serve their interests over their own citizens. These concerns aside, I turn to a realistic strategy for the Trump administration.
To distribute the burdens of repatriation, which benefits all and serves the common good of the nation, and to check the abuse of power posed by the federal courts, President Trump should declare that mass illegal immigration constitutes an “invasion” of the United States. He should encourage and work with willing states to do the same and foster the creation of a multi-state security compact to secure the border and repatriate illegal migrants (or hostile aliens). The security compact should complement the Trump administration’s efforts and, at minimum, authorize the states to parallel federal immigration laws and permit state repatriation programs using military powers.
Additional details, such as the distribution of responsibilities among the states, of this security compact would have to be worked out, as with any military effort, based on the interests and resources available to each state. (Of course, states like Texas and Florida could play prominent roles.) And the judiciary should, consistent with its own jurisprudence in military matters, defer to the executive and legislative branches on whether illegal immigration constitutes an “invasion.” With the establishment of a constitutionally-authorized security compact of this sort, the Trump administration in concert with the states could, with hopefully limited abuse of power by the judiciary, bring about a speedy resolution to the illegal immigration crisis facing the United States.
[1] Conservative jurists could rely on natural law concepts, such as the doctrine of the “lesser magistrate,” state right to self-defense, or the violation of the social compact between the states and the federal government, to vindicate state interests with respect to mass migration; unfortunately, they do not because of the strictures of positivistic accounts of law grounded in liberal theories of political order.
[2] I would contend that states have this power even without express authorization. This is because the duty to defend its citizens is a natural prerogative flowing from the nature of a sovereign political agent. As Judge Ho noted, “[a] sovereign isn’t a sovereign if it can’t defend itself against invasion.”
[3] Illegal aliens cost the states billions of dollars in the form of raised costs in, among other things, healthcare, insurance, education, law enforcement, automobiles, and homes. Trump’s election is, at least in significant part, a response to this crisis.
[4] On a historical note, the Framers provided for state right of action to prevent federal tyranny (in the classical sense). It’s hard to imagine a more tyrannical state of affairs than the federal government facilitating mass illegal migration for the purpose of harming American citizens, all the while federal courts declare it illegal for the states to do anything about it. It’s inconceivable that the states would have entered the union on such terms.
[5] It is common knowledge that there has been considerable increase in numbers of individuals, including known terrorists, arriving through the southern border from countries in competition or at enmity with the United States.