The Invasion of Arizona - The Remedy When The Federal Government Refuses To Do Its Duty

Article IV, §4, U.S. Constitution, requires The United States to protect each of the States against Invasion. It says:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion... [emphasis added]

In Federalist No. 43 (3rd para under 6.), James Madison says of this provision:

A protection against invasion is due from every society to the parts composing it...

Article I, §8, clause 15 grants to Congress the power to provide for calling forth the Militia to [among other things] "repel Invasions".

But the federal government has persistently refused to call forth the Militia to protect the States on our Southern Border from Invasion!

So! What are States to do when their Lands are invaded, their citizens murdered and kidnapped, and our young corrupted by drug-trafficking invaders? And State budgets implode from unconstitutional federal mandates that we subsidize the invaders! Are the States to sit with folded hands and be destroyed because the federal government refuses to perform its constitutional duty? No! We are Americans! If the federal government refuses to perform its constitutional duty to call out the Militia to protect the States against Invasion, then the States must perform that Duty.

Article 1, §8, clause 16 grants to Congress the power to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States. This clause reserves to the States the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

What is the "Militia"? Webster's American Dictionary of the English Language (1828) tells us:

The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service. The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.

So! One of the functions of the Militia - that body of weekend warriors trained by the States and whose officers are chosen by the States, is to defend the States against Invasions. As we have seen, Congress is authorized to provide for calling the Militia into service to repel invasions. But what if the federal government refuses to act?

Alexander Hamilton provides the answer in Federalist No. 29. Hamilton shows that one of the purposes of the Militia is to protect the citizens of the States from threats to their liberties posed by the federal government (7th & 12th paras); and that the States' reservation of power to appoint the Officers secures to them an influence over the Militia greater than that of the federal government (9th para). On the use of the Militia to repel Invasions, Hamilton says (13th para):

...it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy...

True, it was contemplated that the "United States" would be the entity which protects the States against Invasion (Art. IV, §4). But when the federal government has demonstrated its determination that the States ARE TO BE OVERRUN BY INVADERS, then the States are within their Sovereign Rights to employ the Militia to defend The People from those into whose hands the federal government has demonstrated its determination to deliver them.

In Federalist No. 46 (7th & 8th paras), James Madison speaks of conflicts between the federal government and the States, caused by encroachments of the former. He does not counsel subservience by the States. He does not counsel submitting the issue to a federal judge! Instead, Madison describes various forms of non-violent Resistance properly employed by the States, alone or in unison with other States:

...and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

In Madison's magnificent 9th para, he speaks of a federal government so consumed with madness that it sends its regular army against the States:

...Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate [State] governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition [of the federal government], more insurmountable than any which a simple government of any form can admit of... [italics added]

Madison would be disappointed that we permitted this current state of affairs to arise:

...Let us rather no longer insult them [the American People] with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

But we must start from where we are. We can restore our constitutional republic. We can rein in a lawless federal government which usurps powers even while refusing to perform its basic constitutional duty of protecting the States from Invasion.

The Federalist Papers were written to explain the proposed Constitution and to induce The People to ratify it. Madison is the "Father of The Constitution". These are the highest authority on the meaning of our Constitution. Clearly, the States may use their Militia to defend their borders, and States may assist one another in this endeavor. And We the People must throw out of office the federal representatives and officials who refuse to perform their constitutionally mandated Duty to defend our borders. Madison writes in Federalist No. 44 (17th para) respecting remedies against a lawless federal government:

...and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers....

When the federal government refuses to obey the Constitution, the States must enforce it. And WE the People must throw the faithless ones out of office. THIS is how we restore our constitutional Republic. PH

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Replies to This Discussion

Permalink Reply by Charlie on July 29, 2010 at 6:46am

Considering how SCOTUS has been absolutely derelict in its constitutional responsibilities, Arizona may have better luck appealing to Texas and other like-minded States to share resources and form state defense forces to patrol the border.

Supplication has failed and will fail. The federal government is not inclined to respond favorable, and as PH points out, the Democrats' interests are served by delaying, ignoring, etc. Their hand must be forced.

Permalink Reply by Land Shark aka Bob E on July 29, 2010 at 6:58am

Charlie, I will check with Gov. Perry's office and see if he is so inclined, but I am not optimistic about him having the guts to do it. So far, he has not shown much, but it is an election year, so there's hope!!

Permalink Reply by Charlie on July 29, 2010 at 7:01am

Perry only seems willing to say the right things when there's an election at stake. Even then, it's just talk, not action.

Permalink Reply by Publius Huldah on July 29, 2010 at 1:23pm

If it goes to the present SCOTUS, our 4 (Thomas, Alito, Roberts & Scalia) will probably uphold the AZ law. Kennedy is the swing vote, but he's been a little better recently, so my guess is he would vote with our 4.

The remaining 4 loons would claim the AZ law was unconstitutional. Somebody! Send them a copy of Alexander Hamilton's writings on exclusive & concurrent jurisdiction! He lays it all out! Of course, AZ has concurrent jurisdiction!

Permalink Reply by JC Daley on July 28, 2010 at 5:23pm

Kris Kobach was the lead attorney in crafting S 1070 so every possible outcome was considered. There were a couple of considerations that were then amended in HR 2162 which corrected the disparities in 1070. Nobody is talking about HR 2162. As an example Judge Bolton said that only the Fed'l ICE could determine immigration status not a police officer as stated in 1070. BUT in HR2162 11-1051 which is existing AZ law and was amended by 1070 it is further amended by 2162 to say:

E. IN THE IMPLEMENTATION OF THIS SECTION, AN ALIEN'S IMMIGRATION STATUS MAY BE DETERMINED BY:
1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS, (this authorization is given by the Feds to Police Officers thru 287g)
2. THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

What Judge Bolton has said is that she thinks these issues that she has issued injunctions against should be determined in a court of proper jursidiction so is she saying that this should go to the SCOTUS with out actually saying that?? Or is she "blowing in the wind"???

It should be noted that it was the FEDERAL GOVERNMENT UNDER INSTRUCTIONS OF BARACK HUSSEIN OBAMA AND CARRIED OUT BY ERIC HOLDER who filed these suits in the Federal District Court. Arizona just responded where it was filed. Aren't the Plaintiff's attorneies supposed to know the proper channels since both of them are "Constitutional" expert lawyers??? Just askin'.........

People here in AZ are going ballistic over this decision. The Chief of Police in Phoenix (sanctuary city) said that he wasn't changing anything and would still ask for ID. Sheriff Joe just scoffed. The other Sheriff's are standing strong saying they aren't changing anything either because she is ruling on existing Federal immigration laws which they have been enforcing since 1996. I think you are very correct that the "jursidiction" is the question as far as our LEO's are concerned and not her injunction.

So far no response from the AZ attorney's so this may be their next response. This certainly is an education in the "process" isn't it!!

Permalink Reply by JC Daley on July 29, 2010 at 3:33am

I asked the question over at MM's web site 'cause there is a few lawyers over there running down case after case law-- What about original jurisdiction. Shouldn't this case have gone directly to SCOTUS because it is the US v AZ under Art 11 Sec 2. Here is the reply for your edification:

"I think the answer is that “original jurisdiction” is not the same as “exculsive jurisdiction” and therefore Congress can confer original jurisdiction to lower courts as well, creating “concurrent jurisdiction.”

That should be clear as a bell, right?

Anyway, read Boers v. Preston 111 U.S. 252 (1884)"

Back to case law and not the Constitution. Doesn't the Constitution trump case law and the decisions of judges which really are not backed or found in the Constitution?? Yes, Congress was allowed to created lower courts but the Fed's suing a State seems to me to be cut and dried under Art III Sec 2. Congress doesn't get to make that decision here. The mistake was in Holder and his DOJ minions filing the suit in the lower court and not taking it directly to the SCOTUS....... si or no???

Permalink Reply by Land Shark aka Bob E on July 29, 2010 at 3:53am

Art. 6, second paragraph: "This Constitutuion, and the Lawsof the United States which shall be made in Pursuance thereof.......shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.........."

Permalink Reply by Publius Huldah on July 29, 2010 at 2:52pm

Re Boers v. Preston: That is what I've been complaining about all along: Congress igores the Constitution and SCOTUS says, "looks OK to us"! Here is a quote from the opinion in Boers:

"....that as Congress was not expressly prohibited from giving original jurisdiction, in cases affecting consuls, to the inferior judicial tribunals of the United States, neither public policy nor convenience would justify the court in implying such prohibition, and upon such implication pronounce the act of 1789 to be unconstitutional and void..."
http://supreme.justia.com/us/111/252/case.html

So the majority in effect said that the word "all" which appears at Art. III, Sec. 2, clause 2: "In all Cases affecting Ambassadors, etc." doesn't mean "all". Congress can change it by Statute.

The majority also said that unless a constitutional provision contains the phrase, "and Congress is expressly prohibited from changing this provision", that Congress can change it! [unless, of course, "public policy" (as determined by SCOTUS) or "convenience" (as also determined by SCOTUS) militate against Congress' so ignoring the Constitution.]

Article V sets forth the 2 exclusive methods of amending our Constitution. Congress (even the first Congress) is not authorized to amend the Constitution by passing a law; and SCOTUS is not authorized to amend it by an opinion.

It is relevant here that the Art. III, Sec. 2, clause 1 jurisdiction of the federal courts was reduced by AN AMENDMENT TO THE CONSTITUTION: See the 11th amendment ratified 1795.

We must at every opportunity INSIST that the federal government obey the Constitution. While we are insisting that, we are educating the People. The lawyers & judges don't think in terms of looking at the Constitution and the Federalist Papers. They look only for the latest SCOTUS decisions on the issue. For all of them, SCOTUS has replaced The Constitution.

Also, after going on & on as I do about "original intent" & how we must all be strict constructionists (or else we are bad people), I do point out here that there is a distinction between suing someone in their personal private capacity and in suing them in their official capacity. For example if Jan Brewer didn't pay her rent on her personal residence [I made this up for purposes of illustration], and so became in arrears on her personal rent, she would be properly sued in her state trial court, not in SCOTUS. I noticed that the consul in the Boers case was accused of an offense involving personal dishonesty - it was not in his official capacity as consul of a foreign State.

Permalink Reply by Publius Huldah on July 30, 2010 at 1:24pm

Here it on Canada Free Press! I have arrived: The Department of Homeland Security was on my website this morning, AND it has been publicly suggested that your dear teacher is "stupid" and "ignorant"!
http://canadafreepress.com/index.php/article/25983

Permalink Reply by JC Daley on July 30, 2010 at 2:35pm

Were you one of the 5 sites that the Government has declared to be too controversial??? Google was one of them....... I can see you in their league!!

I think the guys on the CFP were the same ones I was arguing with on Michelle Malkins site yesterday--- or went to the same school of the "Constitutionally Challenged".

AND...we "shall" "all" be so "stupid and ignorant" and hopefully soon under your incredilble tutelage........

maybe if the DHS READ your site THEY wouldn't be suing any State for enforcing Federal laws....................

Permalink Reply by Publius Huldah on July 30, 2010 at 5:19pm

UPDATE: This paper was posted July 29, 2010 on Canada Free Press, where some people mentioned the following [pretended] federal statute:

28 United States Code § 1251:
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.

Is 28 USC § 1251 constitutional? Let's review Art. I, Sec. 2, clause 2. Note the words "all" and "shall":

"In ALL Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court SHALL have original Jurisdiction...." [emphasis and caps added]

The defenders of 28 USC § 1251 say that "ALL" really means, "some"; and "SHALL" really means, "shall or shall not, whatever".

But PH asserts that Congress may NOT amend the Constitution by passing a law! Article V sets forth the procedures for amending the Constitution. [Note that the 11th Amendment (ratified 1795) was ratified to reduce the Art. III, Sec. 2, clause 1 Jurisdiction of the federal courts.]

Alexander Hamilton says in Federalist No. 33 (next to last para):

"…But it will not follow…that acts of…[the federal government] which are NOT PURSUANT to its constitutional powers...will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…[Art. VI, cl. 2] EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION …" [caps in original]

In the next paragraph, Hamilton points out that a law made by Congress which is not authorized by the Constitution,

"…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…."

And in Federalist No. 78 (10 para), Hamilton says:

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." [emphasis added]

In short, Congress can't amend Our Constitution by making a "Law"! Any such pretended "laws" are VOID!

The lawlessness which has been going on in all 3 branches of the federal government for a very long time, must stop! OBEY THE CONSTITUTION!

Permalink Reply by Larry M. Meyer on July 31, 2010 at 8:10am

IF, Bolton has been directed to Usurp her Power to hear the Arizona case by direction/appointment by O'Bama as you stated in the article, where do the Citizen's Powers lie in regards to beginning Impeachment and Removal activities of ALL Federal Judges that are NOT observing Judicial Limitations as put forth by the Constitution??