Recent years have seen escalating concern and debate over border security, particularly as the federal government appears hesitant or unable to enforce stringent border controls. This inaction has led to a flurry of legal challenges against states that take it upon themselves to enforce border regulations. Amidst this backdrop of governmental standoff, there is a palpable sense of frustration and confusion among the general populace about the appropriate steps to ensure national security and uphold the rule of law. This environment of uncertainty and the quest for actionable solutions has prompted a closer examination of the constitutional powers vested in state governments to defend their borders and enforce immigration laws independently.

Under the U.S. Constitution, state governments hold significant authority to defend their borders and ensure the security of their residents, a power that is often overshadowed by the federal government’s role in national defense. A close examination of the Constitution reveals a robust framework that empowers states to act independently and even in unison in protecting their territories.

Central to this authority is Article I, Section 8, Clause 4, which grants Congress the power to create uniform rules of naturalization:

Article I, Section 8, Clause 4
To establish an uniform Rule of Naturalization, and
uniform Laws on the subject of Bankruptcies throughout
the United States;

This was implemented through laws like 8 U.S. Code § 1324. This law criminalizes unauthorized entries into the United States, except through designated ports of entry, defining such actions as illegal and enforceable by both federal and state authorities.

However, the Constitution extends beyond naturalization, with Article I, Section 8, Clause 15 tasking Congress with the duty to repel invasions:

Article 1, Section 8, Clause 15
To provide for calling forth the Militia to
execute the Laws of the Union, suppress
Insurrections and repel Invasions;

Importantly, this duty is not exclusive to the federal government. Article I, Section 10, Clause 3:

Article 1, Section 10, Clause 3
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.

This explicitly empowers states to respond to invasions when there is an imminent danger, affirming their right to act without waiting for federal intervention. This clause underscores a dual responsibility where both federal and state governments are vested with the authority to protect the nation. Further solidifying this power, state constitutions typically establish the governor as the commander-in-chief of state military forces. In the State of Texas, its Constitution states:

ARTICLE 4, Section 7 – Governor As Commander-In-Chief of Military Forces

He shall be Commander-in-Chief of the military forces of the State,
except when they are called into actual service of the United States.
He shall have power to call forth the militia to execute the laws of the State,
to suppress insurrections, and to repel invasions.

This role not only symbolizes the governor’s leadership in state defense efforts but also actively engages them in making critical decisions during security crises, including the deployment of the state militia to counter threats.

Moreover, in emergencies, states are permitted to form compacts [contracts] with each other to jointly repel invasions, enhancing their collective defense capabilities without the need for congressional approval. This provision is particularly critical, recognizing that an attack on one state is an attack on the union, thereby promoting a collaborative defense strategy among states.

The robust constitutional provisions make it clear that states are not mere spectators in national defense but are powerful actors equipped with the authority to safeguard their citizens. This state power is especially pivotal in scenarios where the federal response is deemed insufficient or delayed, allowing states to swiftly address security threats independently.

This framework not only emphasizes the shared responsibility between state and federal governments but also highlights the significant, often underappreciated, role that states play in the broader national defense architecture. By understanding and asserting their constitutional rights, state governments can effectively contribute to the nation’s overall security and stability, ensuring the protection of life, liberty, and property for their residents.  Constituional Attorney KrisAnne Hall gives a greater detailed instruction in the video below: