The Invasion Script: Republicans Launch Their Border War, Just in Time for Midterms
Behind the political saber-rattling in Arizona and Texas is Ken Cuccinelli, Trump’s former acting deputy secretary of the Department of Homeland Security
Last week, Arizona’s attorney general, Mark Brnovich, released a legal opinion in which he argued that the U.S. Constitution allows the state’s governor to invoke “war powers” and send the National Guard to its 370-mile-long border with Mexico to fight an “invasion” of drug cartels and gangs.
“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,” wrote Brnovich. “An actual invasion permits the State to engage in defensive actions within its own territory at or near its border.”
Republican candidates nationwide are portraying economic migrants and asylum seekers as a “criminal invasion,” one that is taking place as a result of “Biden’s open border policies.” This has been a heavily featured campaign tactic among candidates who, in the lead-up to the midterm elections, are seeking the endorsement of Donald Trump and his nativist base. It’s also on heavy rotation at Fox News and other right-wing outlets.
Trump ally lobbying for border states to declare an invasion
Behind the political saber-rattling in Arizona and Texas is Ken Cuccinelli, Trump’s former acting deputy secretary of the Department of Homeland Security, who said in a January episode of Steve Bannon’s War Room podcast that he’d been selling the “war powers” idea to Arizona’s governor Doug Ducey and Texas’s governor Greg Abbott for the last two years. (Apparently, California and New Mexico did not return Cuccinelli’s calls.)
Cuccinelli is a research fellow at a Trumpian think tank, founded in 2021, called the Center for Renewing America in Washington, DC, run by Russ Vought, Trump’s former director of the Office of Management and Budget. The center also opposes “critical race theory” and focuses on “strengthening election integrity.” A staunch anti-immigrant hardliner in the lock-’em-up style of Arizona’s former Sheriff Joe Arpaio, Cuccinelli has been promoting the “war powers” concept since 2007, when he was a state senator in Virginia. But it’s only now gaining momentum.
On January 12, Cuccinelli and Vought joined more than a dozen Republican legislators at a press conference in Phoenix and called on Ducey to declare the state under invasion. The group included Representative Jake Hoffman, who, along with other Arizona Republican officials, signed fake electoral documents stating that Trump won the 2020 election in Arizona. This is now being investigated by the Department of Justice and the congressional committee on the January 6 insurrection.
It was at Hoffman’s request that Brnovich issue a legal opinion on whether it’s constitutional for Ducey to declare the state under invasion and send the National Guard to the border. (Brnovich issued the 25-page opinion at Hoffman’s request but said he won’t investigate the fraudulent electoral documents submitted by Hoffman and others to undermine the 2020 election.)
Cuccinelli has also been busy lobbying Republican-led states to form an interstate compact so that they can send additional law enforcement and National Guard to the border. In June, Ducey and Abbott issued a joint letter stating that Texas was issuing a disaster declaration and Arizona declaring an emergency and requesting that other states send reinforcements to the southern border. “When it comes to the Biden administration’s open-border disaster, our greatest need is for additional law enforcement personnel and equipment,” they wrote.
This prompted more than a half dozen Republican-led states—let’s call it the New Confederacy—to send police and National Guard to Arizona and Texas. One cash-strapped state, South Dakota, deployed its National Guard thanks to a donation from a Republican mega-donor from Tennessee.
Abbott follows the invasion plan, but Ducey not so much
In Texas, Abbott has faithfully followed Cuccinelli’s script. Since July, Abbott has deployed more than 10,000 state police and National Guard to the Texas-Mexico border to act as immigration enforcers, calling it Operation Lone Star. Under the operation, undocumented border crossers are arrested for criminal trespassing and jailed in state prisons. But since the operation began, it has clogged small county courts—which have been unable to process thousands of arrest charges—and it has overcrowded state prisons. Because of this, many people have been jailed for months without formal charges, spurring several lawsuits for violating due process under Texas law. And in late January, a state district judge in Texas ruled Operation Lone Star unconstitutional because it usurps the federal government’s authority to enforce immigration laws.
Besides these legal problems, Abbott’s operation is embroiled in a scandal: the National Guard deployment was poorly and hastily planned, and the state has failed to pay National Guard soldiers. There has also been a string of soldier suicides and accidental shootings.
Even though Abbott has spent billions on Operation Lone Star, Cuccinelli called Abbott’s building of a border fence and the deployments nothing more than “window dressing.” Migrants should not be held overnight or housed in facilities, Cuccinelli said. (Contrary to current U.S. immigration and asylum laws.) Instead, they should be returned to Mexico in under two hours. “You thumbprint them and take their picture … Bag ’em and tag ’em and … push them back across the border.” Cuccinelli said he’d done just that as DHS deputy secretary, using Title 42, an obscure federal public health law, to close the border to migrants and asylum seekers citing the pandemic. (Cuccinelli did not mention that Biden has left this policy in place, even defending it in court.)
While Abbott is following the plan, Ducey has been less willing. He’s tossed many a verbal grenade at Biden, recently calling his border policies “a marketing arm of the Mexican cartels.” But he hasn’t declared an invasion.
In April, Ducey sent at least 150 National Guard soldiers to border communities, and he has said that he might build some border fence in Cochise County. Ducey didn’t respond publicly to the legislators and Cuccinelli’s press conference on January 12. And he was similarly mum about Brnovich’s legal opinion.
“It’s also a campaign cycle, so people are going to say things,” Ducey said, according to the Arizona Capitol Times. “And if they get the (governor’s) job, they can prove if they can make them happen.”
Dangerous and Unconstitutional
The elected officials are dancing to Trump’s tune because they want his endorsement in the upcoming Republican primaries for the midterm elections. Arizona’s primary is in August and Texas’s in March.
Arizona’s Brnovich is running in a crowded U.S. Senate race, and increasingly many expect that Ducey, who is term-limited as governor, will also join the race.
In Texas, Abbott, who is running for reelection, has two super-Trump candidates running to his extreme right: Don Huffines, a wealthy real estate developer and former state senator, and Allen West, a former Army Lt. Colonel and Florida congressman who has appeared at QAnon rallies.
Many legal experts have called Cuccinelli’s plan unconstitutional. It’s also dangerous. The shooter in the 2019 El Paso Walmart massacre said he killed 23 people, and wounded 23 more, because of a “Hispanic invasion.” Mass killings in Christchurch, New Zealand, and other cities globally have also taken place because the perpetrators thought white people are being overtaken by people of color—an old white supremacist myth known as “the great replacement theory,” which has been fully embraced by Trump’s base in the Republican Party.
“This saber rattling makes me very nervous from a constitutional and human rights perspective,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, a Washington, DC–based nonprofit. “People seeking asylum or simply a better life are not an invading army. This is just dangerous rhetoric that could lead to more mass shootings.”
Migration has increased globally, not just at the U.S.-Mexico border, he said. The reasons for migration vary significantly depending on where people are coming from and the conditions they’re fleeing, be it the pandemic, extreme poverty, war, widespread crop failures, or other disasters owing to climate change. “The entire region is seeing an unprecedented amount of migration,” he said. “Mexico saw a record number of asylum applications last year, so has Costa Rica.”
To blame increased migration on Biden’s border policies isn’t accurate, especially when the current administration’s policies haven’t changed much from Trump’s, he said. The administration has maintained the “Remain in Mexico” policy, which was expanded under Biden to include Haitian migrants, and Title 42 is still in place. “It’s very hard to say that Biden’s particularly changed any policies,” said Reichlin-Melnick.
But as we saw during the Trump administration, legal and immigration experts like Reichlin-Melnick can cite facts and explain all the reasons why Cuccinelli’s idea is a bad one. But Trump and his allies are uninterested in the facts. They want to win at all costs, no matter how many people they put in the crosshairs.