Ken Cuccinelli, former Virginia Attorney General in line to be a senior DHS official on immigration, has a rather bizarre theory that says the states can invoke special “war powers” to fight against immigration, something they are actually forbidden from doing.
During that appearance, Cuccinelli suggested that states could constitutionally enter into war with the migrant caravan because “we’ve been being invaded for a long time and so the border states clearly qualify here to utilize this power themselves.”
If they did so, “because they’re acting under war powers, there’s no due process,” Cuccinelli said. “They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance and turn people back at the border.”
“You just point them back across the river and let them swim for it,” he later added.
Uh, no. The power to fight wars is taken away from the states, as the Constitution makes clear in Article 1, Section 10:
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.
They don’t have votes in Congress to get this passed, and even if they did they couldn’t force the states to do it (thus the entire basis of “sanctuary city” laws). It certainly isn’t something the states could not decide to do on their own. You obviously can’t have 50 different foreign policies run by 50 different states.