[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 362 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
S. RES. 362

 To express the sense of the Senate regarding the constitutional right 
 of State Governors to repel the dangerous ongoing invasion across the 
                     United States southern border.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 26 (legislative day, September 22), 2023

Mr. Marshall submitted the following resolution; which was referred to 
                     the Committee on the Judiciary

_______________________________________________________________________

                               RESOLUTION


 
 To express the sense of the Senate regarding the constitutional right 
 of State Governors to repel the dangerous ongoing invasion across the 
                     United States southern border.

Whereas, during a 2019 Democratic presidential primary debate, President Biden 
        called for ``all those people seeking asylum'' to ``immediately surge to 
        the border'';
Whereas, during a 2019 Democratic presidential primary debate, President Biden 
        raised his hand when candidates were asked if their health plans will 
        provide coverage for illegal immigrants;
Whereas, during a 2020 Democratic presidential primary debate, President Biden 
        pledged support for ``sanctuary cities'' when he stated that illegal 
        immigrants arrested by local police should not be turned over to Federal 
        immigration authorities;
Whereas, on January 20, 2021, one of President Biden's first actions as 
        President was sending proposed legislation, the U.S. Citizenship Act, to 
        Congress, which would provide a path to citizenship for an estimated 
        10,000,000 to 12,000,000 illegal immigrants who are currently residing 
        in the United States;
Whereas, on January 20, 2021, President Biden also issued a ``Proclamation on 
        the Termination Of Emergency With Respect To The Southern Border Of The 
        United States And Redirection Of Funds Diverted To Border Wall 
        Construction'', which halted construction of physical barriers along the 
        international border between the United States and Mexico, and he later 
        terminated existing border wall construction contracts and failed to 
        obligate more than $1,000,000,000 that Congress had lawfully 
        appropriated for border wall construction;
Whereas, on January 20, 2021, President Biden also halted enrollments in the 
        Migrant Protection Protocols policy, which is also known as the ``remain 
        in Mexico'' program;
Whereas, on February 6, 2021, U.S. Secretary of State Antony Blinken suspended 
        and terminated the Asylum Cooperative Agreements with the Governments of 
        El Salvador, of Guatemala, and of Honduras;
Whereas, in March 2022, the Department of Homeland Security began implementing 
        the interim final rule titled ``Procedures for Credible Fear Screening 
        and Consideration of Asylum, Withholding of Removal, and CAT Protection 
        Claims by Asylum Officers'' which authorizes U.S. Citizenship and 
        Immigration Services to consider the asylum applications of individuals 
        subject to expedited removal and violates the law enacted by Congress 
        that requires asylum seekers to offer evidence to persuade a judge in an 
        immigration court;
Whereas, in August 2022, the Department of Homeland Security terminated the 
        Migrant Protection Protocols (commonly known as the Remain in Mexico 
        policy), which required aliens with pending asylum claims to wait in 
        Mexico;
Whereas, during fiscal year 2021, U.S. Immigration and Customs Enforcement 
        executed 59,000 deportations, which represents the lowest number of 
        deportations since fiscal year 2008, and fewer than \1/3\ as many 
        deportations as the number of people who were deported during fiscal 
        year 2020, and is significantly lower than the 226,000 to 410,000 
        removals that occurred every fiscal year since 2008;
Whereas, during fiscal year 2021, U.S. Immigration and Customs Enforcement--

    (1) arrested 48 percent fewer convicted criminals than had been 
arrested during the prior fiscal year;

    (2) deported 63 percent fewer criminals than had been deported in the 
prior fiscal year; and

    (3) issued 56 percent fewer ``detainer requests'' to local authorities 
than had been issued in the prior fiscal year;

Whereas, during fiscal year 2021, U.S. Customs and Border Protection made more 
        than 1,700,000 arrests of illegal immigrants along the international 
        border between the United States and Mexico, which was the highest level 
        ever recorded until more than 2,300,000 illegal immigrants were arrested 
        along such border during fiscal year 2022;
Whereas, on April 1, 2022, President Biden announced the termination of a public 
        health policy used to expel potentially infected illegal immigrants 
        during the COVID-19 pandemic (commonly known as ``title 42'');
Whereas, on September 30, 2021, Department of Homeland Security Secretary 
        Alejandro Mayorkas issued a memorandum titled ``Guidelines for the 
        Enforcement of Civil Immigration Law'', which stated that an alien's 
        illegal status in the United States should not be the sole basis of an 
        enforcement action and prioritized for apprehension and removal aliens 
        who are a threat to national security, public safety, or border 
        security;
Whereas, on October 12, 2021, Secretary Mayorkas issued a memorandum titled 
        ``Worksite Enforcement: The Strategy to Protect the American Labor 
        Market, the Conditions of the American Worksite, and the Dignity of the 
        Individual'', which included Department-wide guidance to cease mass 
        worksite operations, among other instructions;
Whereas, on October 27, 2021, Secretary Mayorkas issued a memorandum titled 
        ``Guidelines for Enforcement Actions in or Near Protected Areas'', which 
        listed numerous protected areas where the enforcement of Federal 
        immigration law should not occur;
Whereas, in May 2022, U.S. Customs and Border Protection arrested 239,416 
        illegal immigrants along the international border between the United 
        States and Mexico, which is the highest number of arrests ever recorded 
        in a single month;
Whereas President Biden's fiscal year 2023 budget request aims to shift the 
        Department of Homeland Security's border management away from 
        enforcement and toward ``effectively managing irregular migration along 
        the Southwest border'';
Whereas, in November 2022, Texas Governor Greg Abbott--

    (1) declared a state of invasion at the southern border; and

    (2) increased security at the border to protect the state of Texas by 
invoking--

    G    (A) section 10 of article I of the Constitution of the United 
States; and

    G    (B) the invasion clauses in the Texas Constitution;

Whereas, in March 2023, at a hearing of the Committee on Homeland Security of 
        the House of Representatives, U.S. Border Patrol Chief Raul Ortiz told 
        lawmakers that the Department of Homeland Security did not have 
        operational control of the border;
Whereas, in March 2023, at a hearing of the Committee on the Judiciary of the 
        Senate, Secretary of Homeland Security Alejandro Mayorkas stated that he 
        does not use the statutory definition of operational control under 
        section 2(b) of the Secure Fence Act of 2006 (Public Law 109-367; 8 
        U.S.C. 1701 note) when asked if the Department of Homeland Security had 
        operational control of the border;
Whereas, on January 6, 2023, the Biden Administration abused its parole 
        authority under section 212(d)(5) of the Immigration Nationality Act (8 
        U.S.C. 1182(d)(5)) to create a new parole program for nationals of Cuba, 
        Haiti, Nicaragua, and Venezuela;
Whereas, on April 27, 2023, the Biden Administration further abused its parole 
        authority by creating a new family reunification parole process, which 
        grants parole to entire categories of aliens rather than granting parole 
        on a case-by-case basis, as required under such section 212(d)(5);
Whereas the Biden Administration created a parole with conditions policy 
        authorizing U.S. Border Patrol agents to release aliens through parole 
        before they are given a Notice to Appear or entered into removal 
        proceedings;
Whereas the Biden Administration has expanded the use of the CBP One app, 
        allowing tens of thousands of aliens to enter the United States 
        unlawfully to hide the mass immigration surge following the termination 
        of the order of suspension issued by the Director of the Centers for 
        Disease Control and Prevention under section 362 of the Public Health 
        Service Act (42 U.S.C. 265) as a result of the public health emergency 
        relating to the COVID-19 pandemic (commonly known as the ``title 42 
        order'');
Whereas drug cartels are receiving an estimated $13,000,000,000 each year from 
        their human smuggling operations across the southern border of the 
        United States, which represents an enormous increase from the estimated 
        $500,000,000 the drug cartels received in 2018 from such operations;
Whereas, in March 2023, according to the non-detained docket, an estimated 
        5,290,000 illegal aliens were at large in the United States, including 
        407,983 criminal aliens;
Whereas the estimated fiscal burden of illegal immigration on taxpayers in 
        fiscal year 2023 is estimated to be $150,700,000,000, which is a massive 
        increase from the estimated fiscal burden of $116,000,000,000 during 
        fiscal year 2017. Tax payments by illegal aliens are equal to 
        approximately \1/6\ of the costs incurred by government entities in the 
        United States on their behalf;
Whereas, during fiscal year 2022, total Federal justice enforcement expenditures 
        as a result of illegal immigration were $25,100,000,000 and total 
        Federal welfare program expenditures for illegal aliens were 
        $11,600,000,000;
Whereas, in April 2023, the Biden Administration proposed a plan to expand 
        healthcare access for aliens granted deferred action pursuant to the 
        final rule submitted by the Department of Homeland Security titled 
        ``Deferred Action for Childhood Arrivals'' (87 Fed. Reg. 53152 (August 
        30, 2022)), further encouraging illegal aliens to enter the United 
        States;
Whereas, on May 3, 2023, the Office of the Inspector General of the Department 
        of Homeland Security issued a report titled ``Intensifying Conditions at 
        the Southwest Border Are Negatively Impacting CBP and ICE Employees' 
        Health and Morale'';
Whereas, in June 2023, the Committee on Homeland Security of the House of 
        Representatives opened an investigation into Secretary of Homeland 
        Security Mayorkas for dereliction of duty;
Whereas, in June 2023, an estimated 16,800,000 illegal aliens resided in the 
        United States, which represents an increase of an estimated 16 percent 
        during the first 2 years of the Biden presidency;
Whereas, on June 30, 2023, U.S. Customs and Border Protection announced the 
        expansion of available CBP One appointments to 1,450 per day;
Whereas U.S. Customs and Border Protection has apprehended illegal immigrants 
        from Mexico, Guatemala, El Salvador, Nicaragua, Cuba, Haiti, Brazil, 
        other Central and Latin American nations, Turkey, India, Russia, and 
        other nations outside of the Western Hemisphere;
Whereas U.S. Customs and Border Patrol has apprehended 50 people since October 
        1, 2021, along the international border between the United States and 
        Mexico who are listed on the Federal Bureau of Investigations' terrorist 
        screening database;
Whereas U.S. Customs and Border Protection arrested more than 10,800 illegal 
        aliens during fiscal year 2023 who have been convicted of 1 or more 
        crimes in the United States or abroad, including--

    (1) 225 convicted sexual criminals;

    (2) 24 who were convicted of homicide or manslaughter;

    (3) 232 who were convicted of illegal weapons possession, transport, or 
trafficking;

    (4) 644 who were convicted of burglary, robbery, larceny, theft, or 
fraud; and

    (5) 924 who were convicted of assault, battery, or domestic violence;

Whereas, during fiscal year 2022, U.S. Customs and Border Protection seized--

    (1) 14,599 pounds of fentanyl;

    (2) 1,871 pounds of heroin;

    (3) 175,410 pounds of methamphetamine;

    (4) 70,293 pounds of cocaine; and

    (5) 13,755 pounds of ketamine;

Whereas provisional data from the National Center for Health Statistics of the 
        Centers for Disease Control and Prevention estimates that there were 
        107,622 drug overdose deaths in the United States during 2021, an 
        increase of nearly 15 percent from the estimated 93,655 deaths in 2020, 
        with overdose deaths involving opioids increasing from an estimated 
        70,029 in 2020 to an estimated 80,816 in 2021, and overdose deaths from 
        synthetic opioids (primarily fentanyl), psychostimulants (such as 
        methamphetamine), and cocaine also increasing during 2021;
Whereas clause 1 of section 10 of article I of the United States Constitution 
        states, in part, ``No State shall, without the Consent of Congress . . . 
        engage in War, unless actually invaded, or in such imminent Danger as 
        will not admit of delay.'';
Whereas section 4 of article IV of the United States Constitution states, in 
        part, ``The United States shall guarantee to every State in this Union a 
        Republican Form of Government, and shall protect each of them against 
        Invasion'';
Whereas, in the context of known security concerns due to a lack of proper 
        vetting processes and systems, and in conjunction with how the mass 
        unlawful movement of people across the border of the United States 
        directly empowers and enriches cartels and transnational gangs, the 
        totality of such activity constitutes an invasion;
Whereas, on October 26, 2021, Arizona State Representative Jake Hoffman sent a 
        letter to Arizona Attorney General Mark Brnovich requesting a formal 
        legal opinion determining whether President Biden has violated his 
        obligations to protect Arizona from invasion under section 4 of article 
        IV of the United States Constitution; and
Whereas, on February 7, 2022, Arizona Attorney General Mark Brnovich issued a 
        formal legal opinion, which states, in part--

    (1) ``The on-the-ground violence and lawlessness at Arizona's border 
caused by cartels and gangs is extensive, well-documented, and persistent. 
It can satisfy the definition of `actually invaded' and `invasion' under 
the U.S. Constitution.''; and

    (2) ``Arizona retains the independent authority under the State Self-
Defense Clause to defend itself when actually invaded.'': Now, therefore, 
be it

    Resolved, That the Senate finds that--
            (1) President Biden's dereliction of duty and failure to 
        take care that the laws be faithfully executed at our southern 
        border has directly put the citizens of all 50 States in danger 
        and has resulted in loss of life;
            (2) the violent activity and smuggling of drugs, humans, 
        guns, and other illicit goods carried out by drug cartels and 
        transnational criminal organizations, and the crossing of the 
        international border between legal ports of entry by 
        significant numbers of individuals contrary to the laws of the 
        United States, meet the definitions of--
                    (A) ``actually invaded'' under clause 3 of section 
                10 of article I of the United States Constitution; and
                    (B) ``invasion'' under section 4 of article IV of 
                the United States Constitution; and
            (3) Governors of all 50 States possess the authority and 
        power as Commander-in-Chief of their respective States to repel 
        the invasion described in paragraph (2).
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