Understanding the Constitution: How States May Respond to Illegal Immigration—Part III

As part of our research into state war powers, my co-author, Andrew T. Hyman, and I examined the scope of “defensive war” as the Founders understood it.

People walk between razor wire and a string of buoys placed on the water along the Rio Grande border with Mexico in Eagle Pass, Texas, on July 16, 2023. Suzanne Cordeiro/AFP/Getty Images

Commentary

Part I and Part II in this series explained that:

• the Constitution grants the federal government the exclusive power to wage offensive war, but
• the states as well as the federal government may wage defensive war;
• the states may wage defensive war against insurrectionists and against actual or threatened invasions—including invasions by those international criminal gangs the Founders called “enemies of the human race”; and
• the historical record shows that the mass illegal immigration at the southern border is an “invasion” as the Constitution uses that word.

A Not-So-Hypothetical Situation

As part of our research into state war powers, my co-author, Andrew T. Hyman, and I examined the scope of “defensive war” as the Founders understood it. In other words, we examined what an American state can, and can’t, do when fighting a defensive war.