[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
THE SOUTHERN BORDER CRISIS: THE CONSTITUTION AND THE STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, JANUARY 30, 2024
__________
Serial No. 118-60
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
------
U.S. GOVERNMENT PUBLISHING OFFICE
54-717 WASHINGTON : 2024
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
KEN BUCK, Colorado Member
MATT GAETZ, Florida ZOE LOFGREN, California
ANDY BIGGS, Arizona SHEILA JACKSON LEE, Texas
TOM McCLINTOCK, California STEVE COHEN, Tennessee
TOM TIFFANY, Wisconsin HENRY C. ``HANK'' JOHNSON, Jr.,
THOMAS MASSIE, Kentucky Georgia
CHIP ROY, Texas ADAM SCHIFF, California
DAN BISHOP, North Carolina J. LUIS CORREA, California
VICTORIA SPARTZ, Indiana ERIC SWALWELL, California
SCOTT FITZGERALD, Wisconsin TED LIEU, California
CLIFF BENTZ, Oregon PRAMILA JAYAPAL, Washington
BEN CLINE, Virginia MARY GAY SCANLON, Pennsylvania
KELLY ARMSTRONG, North Dakota JOE NEGUSE, Colorado
LANCE GOODEN, Texas LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama DEBORAH ROSS, North Carolina
KEVIN KILEY, California CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming GLENN IVEY, Maryland
NATHANIEL MORAN, Texas BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
------
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
CHIP ROY, Texas, Chair
TOM McCLINTOCK, California MARY GAY SCANLON, Pennsylvania,
DAN BISHOP, North Carolina Ranking Member
KEVIN KILEY, California STEVE COHEN, Tennessee
HARRIET HAGEMAN, Wyoming VERONICA ESCOBAR, Texas
WESLEY HUNT, Texas CORI BUSH, Missouri
RUSSELL FRY, South Carolina SHEILA JACKSON LEE, Texas
Vacant HENRY C. ``HANK'' JOHNSON, Georgia
BECCA BALINT, Vermont
CHRISTOPHER HIXON, Majority Staff Director
AARON HILLER, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Tuesday, January 30, 2024
Page
OPENING STATEMENTS
The Honorable Chip Roy, Chair of the Subcommittee on the
Constitution and Limited Government from the State of Texas.... 1
The Honorable Mary Gay Scanlon, Ranking Member of the
Subcommittee on the Constitution and Limited Government from
the State of Pennsylvania...................................... 4
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 6
WITNESSES
The Hon. Mark Brnovich, Former Arizona Attorney General
Oral Testimony................................................. 9
Prepared Testimony............................................. 11
Christopher Hajec, Director of Litigation, Immigration Reform Law
Institute
Oral Testimony................................................. 13
Prepared Testimony............................................. 15
The Hon. Brent Webster, First Assistant Attorney General, Texas
Oral Testimony................................................. 17
Prepared Testimony............................................. 19
Omar Jadwat, Director, Immigrants' Rights Project, American Civil
Liberties Union
Oral Testimony................................................. 88
Prepared Testimony............................................. 90
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on the
Constitution and Limited Government are listed below........... 120
Materials submitted by the Honorable Mary Gay Scanlon, Ranking
Member of the Subcommittee on the Constitution and Limited
Government from the State of Pennsylvania, for the record
A report on the Supreme Court's Opinion on Arizona v. United
States, 567 U.S. 387 (2012), Thomson Reuters
An article entitled, ``Republicans now say it might be okay to
ignore the Supreme Court,'' Jan. 29, 2014, Washington Post
An article entitled, ``Brnovich, lagging in the polls, begs
Ducey to declare an `invasion' to militarize the border,''
Jul. 7, 2022, Arizona Mirror (AZM)
THE SOUTHERN BORDER CRISIS:
THE CONSTITUTION AND THE STATES
----------
Tuesday, January 30, 2024
House of Representatives
Subcommittee on the Constitution and Limited Government
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 10:13 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Chip Roy
[Chair of the Subcommittee] presiding.
Members present: Representatives Roy, Jordan, McClintock,
Bishop, Kiley, Hageman, Fry, Scanlon, Nadler, Cohen, Escobar,
and Balint.
Also present: Representative Biggs.
Mr. Roy. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time. We welcome everyone to today's hearing on the Southern
Border, the Constitution, and the States.
Without objection, our colleagues, Mr. Biggs and Mr.
Armstrong, will be able to participate in the hearing today for
the purpose of questioning the witnesses if a Member on the
Subcommittee yields him time for that purpose.
I will recognize myself for an opening statement.
I want to thank our witnesses for appearing before the
Committee today. Thank you for your time and your service. We
are here today because the President of the United States is
failing to fulfill his duty to defend our country, to defend
the borders of the United States, as required by the
Constitution. Specifically, the Constitution States the United
States shall guarantee to every State in this Union a
Republican form of government and shall protect each of them
against invasion.
Now, I have read, heard, and I am aware of the academic
arguments about the definition of invasion, and I am sure we
will cover that in the hearing today. The reality of those of
us living on the front lines, the reality of those of us who
live in Texas, Arizona, States along the border,
notwithstanding any protestations to the contrary, we are
experiencing invasion at the Southern border.
Since the beginning of this administration, there have been
more than seven million encounters at our Southern border. That
in and of itself doesn't define an invasion, but when you
compare it to the 2.4 million encounters of the previous
administration and when you look at what is actually occurring
now with over five million aliens having been released into the
United States which includes more than 1.8 million known
gotaways. This is a mix of releases, gotaways, people that have
come in under the so-called CBP One app released, people that
have been released in the United States with dates to appear as
late as 2035, 2031, 2, 4, 5. These numbers on the gotaways, by
the way, are likely conservative estimates.
Secretary Mayorkas himself admitted some 85 percent of
migrants encountered at the border are being released
immediately, automatically, released into the United States.
That is not a border. That does not allow for any actual
determination of an asylum claim or any legitimate claim under
law. Importantly, these releases include hundreds, thousands of
criminals that have wreaked havoc on our communities. In 2022,
20-year-old Kayla Hamilton was raped and murdered in her home
in Maryland by an MS-13 gang member released by this
administration. We have examples like that in every State in
the union and we have hundreds of examples like that in Texas,
of criminal activity of people being released by this
administration.
Even those with ties to extremist groups and activities
have entered the country through our border to include the
migrant wanted in Senegal for terrorism-related crimes. Last
March, a member of the terrorist group Al-Shabaab crossed the
Southern border, was released, traveled to Minnesota where he
was eventually arrested by ICE.
Again, there are many of these examples. In the instance of
beginning of Fiscal Year 2021, 331 known or suspected
terrorists have been caught crossing the Southern border. I
know my colleagues on the other side of the aisle, someone will
pull that apart about well, what list do you have that are
associated with terrorists or a real terrorist list? Well, is
it FARC, but it is not a certain part of the world. The fact is
there is an increasing number of known individuals affiliated
with dangerous groups across this world that are flooding into
the United States because this administration refuses to carry
out its constitutional duty to maintain operational control of
the border on behalf of the United States.
By the way, that 331 compares to just 11 from 2017-2020
under the administration of President Trump. With the 1.8
million known gotaways, we have no idea how many terrorists and
criminals have escaped undetected because these are the
individuals that are actually not seeking Border Patrol. They
are not coming across the river and saying, please, hi, Border
Patrol, I am here. Can you take me in, send me over to an NGO
and release me into the United States which is what we are
doing to the vast majority of the numbers. Some 50,000 a month
are coming in and we don't know who they are, but we know that
there are some dangerous individuals because we know that they
flee Border Patrol.
The flow of illegal immigration has also levied unbearable
costs on American communities, particularly in Texas. American
students have been kicked out of their schools so the buildings
can be used to house illegal aliens. The healthcare system is
burdened by unpaid medical bills for services provided to
illegal aliens. Texas has been forced to spend at least $12.5
billion of its own funds to try to fill the void.
This invasion of our Southern border is a clear and present
danger to the citizens of this country and particularly to the
people that I represent in Texas, as do my colleagues from
Texas. A record number of Texans and Americans are dying from
cartel and Chinese-driven fentanyl pouring across our Southern
border. Now, I have seen and read the articles by my colleagues
on the Left, academics on the Left who say well, ``that is just
fentanyl.'' It comes through the ports of entry. Nothing you
can do that can stop that. It has nothing to do with the fact
that we have wide open borders, despite the fact that the
experts on the border, the Border Patrol folks who have to
actually do the job, who are pulled off the line to process
people in direct contravention of our laws, they will tell you
that this much worse because they are unable to police the
borders. They are unable to do their job between the ports of
entry or at the ports of entry at the level that they should be
able to do so.
As a result, six children in the school district in which
my family resides just Southwest of Austin in Hays County,
Texas, died from fentanyl poisoning last year alone. We have
had witnesses testify here. We had the mother and the father of
one of those kids testify here. We just ignore it. We ignore
this grim reality of what is happening to our country.
Since 2021, over 5,000 people have died of fentanyl
poisoning in Texas alone, but Texas has actually been on the
low end historically, but it is going up. Most of the traffic
went through Texas to other parts of the country, but now it is
sticking. More than 75,000 Americans have died of fentanyl-
related poisonings in 2022 alone. We are still waiting for the
2023 data. Over 200 a day. Basically, an airplane full of human
beings that are American citizens or people that live in this
country who have died from fentanyl-related poisonings every
day.
I met last week in Brackettville, Texas, about three hours
from my house, about 45 miles from Eagle Pass, with about 200
landowners and local officials in South Texas breaking down in
tears of the destruction of their community. One rancher, who
has had to fix his fence 400 times. He has had to repair his
fence 400 times in the last three years. The ranch he has had
in his family losing livestock. Now, people dismiss that as if
it is no big deal. It is a really big deal to the families and
the ranchers who have ranched South Texas for years.
Talked to residents who live near the border have high-
speed car chases that are commonplace, that result in the death
of American citizens recently and migrants. We act like this is
compassionate that a thousand migrants died along the Southwest
border of the United States last year, almost a thousand. This
flow of illegal immigration has enriched and emboldened the
cartels. John Modlin, the Chief Border Patrol Agent in the
Tucson Sector, has told Congress that,
Nobody crosses without paying the cartels, so the cartels
determine when people cross, how many people cross at the time,
all of that, it is controlled by them.
Now, we all know that. We have seen numerous embed
reporters who start in South America, come up through Darien
Gap, go through the entire process that the United Nations is
fueling, China is helping fund, cartels are getting enriched by
moving human beings for profit into the United States through a
dangerous journey where individuals die along that journey,
little girls get sold into the sex trafficking trade, all that
happens, and it is purposeful to flood the United States so
that people like our colleague, Yvette Clarke from New York,
can say, ``I need more people in my district just for
redistricting purposes,'' in the context of a conversation
about saying there is, ``no room at the inn'' for people to
come to the United States. That was a direct quote.
This is very clearly an invasion. It is a purposeful one
and it is inflicting dangerous consequences on our country and
the people of Texas. We are here to talk about the
constitutional powers for States to be able to manage that
process in the absence of any effort by the Federal Government.
The Constitution contemplates that States could repel and
defend themselves against invasion because they expected the
Federal Government to do its job. In almost a throw-away clause
at the end of Article I, but a clause nonetheless, it says the
Governors, the people of the State, have the right to defend
themselves. It says,
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.
Now, why would this be? Could it be because as Thomas
Jefferson put it self-preservation is paramount to all law? The
fact of the matter is, of course, the people of Texas have a
right to defend themselves just as I have a right to defend my
home and my family if it is under attack. I don't go check the
statute book. I don't go open the Constitution to determine
what I do in the face of a danger posed to the people in my
home, my family, as a citizen, who derives his rights and the
rights for my family from God, not from government. We have the
right to defend ourselves. It is inherent. The Constitution
reflects that, and it reflects the fact that Governors and
States can, should, step in if the Federal Government refuses
to do its job.
I look forward to hearing comments from our witnesses and
getting their perspectives on these topics. With that, I will
now recognize the Ranking Member, the gentlelady from
Pennsylvania, Ms. Scanlon, for her opening statement.
Ms. Scanlon. Thank you, Mr. Chair. From a constitutional
perspective which is, after all, the purview of this
Subcommittee, the answer to the question posed by today's
hearing, the extent to which States can act independently of
the Federal Government with respect to immigration matters
including border enforcement, has been well-settled law for
over 150 years. The Supreme Court has been unequivocal that the
Constitution does not allow States to reject Federal policy
instead of their own immigration regimes and that when a State
purports to stand in the Federal Government's shoes and take
over Federal immigration enforcement, it unlawfully violates
the principles that the removal process is entrusted to the
discretion of the Federal Government.
So, why is this hearing happening today? To try to breathe
life into a crackpot legal theory that is so extreme that even
hard-core conservative scholars have rejected it, declaring
correctly that this is an attempt to subvert our constitutional
order for political purposes. Federal supremacy over
immigration rests on several constitutional bases. These
include the Federal Government's inherent power over the
conduct of U.S. relations with foreign countries including with
respect to matters of national security and its power to
establish a uniform rule of naturalization as provided for in
Article I, Section 8.
Federal law governing immigration is the supreme law of the
land and State laws may not undermine the comprehensive and
complex Federal regulatory framework governing immigration. We
cannot have 50 different sets of immigration laws, each of them
potentially having different foreign relations and natural
security implications. Such a system would be chaotic. It would
leave the country vulnerable, and it would make Americans less
safe. That is why the Constitution's Framers entrusted those
matters to the national government to the exclusion of the
States. Attempts by the States to enact and implement their own
immigration enforcement policies that conflict with Federal law
are clearly unconstitutional.
In pressing the extreme and unconstitutional legal theories
that the House Majority and its witnesses are making today;
they are attempting to put the rabbit in the hat. Even if they
are blocking bipartisan legislation to address border security
and funding, they are arguing that the Federal Government's
failure to have a stronger border security gives States a
license to enact their own immigration policies. This is a
fallacy.
The Constitution doesn't say the States are free to ignore
the Constitution and Supreme Court precedent unless the House
Freedom Caucus gets its way. It is Congress' responsibility to
enact immigration legislation and the funding necessary to
implement. Enacting such legislation requires compromise,
bipartisanship, and actually voting on measures which can be
signed into law. The House Majority is not interested in
meeting that responsibility and has blocked the President's
request for supplemental border funding and is now refusing to
even consider a bipartisan border security bill that has been
hammered out by Senate Democrats and Republicans with the
administration. They have done so at the urging of the
disgraced former President who wants to campaign on lies about
border security.
As we will see, fringe legal fantasy being pushed in this
hearing and by some State officials hinges on a tortured
reading of the Constitution that defies both constitutional
history and legal precedent. They are promoting the idea that
the States have the power to take matters into their own hands
because they are being invaded and they claim that that meets
the language of Article 1, Section 210, Clause 3 of the
Constitution. Our Founders and credible legal scholars are
clear that the invasion clause refers to protection against
armed hostility from a Nation State or organized political
entity, not people fleeing danger in their home country and
seeking protection under international and U.S. asylum laws and
not even from those engaging in criminal activity.
We should be clear that the courts have considered the
volume of immigrants coming to our border when repeatedly
reaffirming that this migration crisis does not equal an
invasion. I cannot decide which is more disturbing, the
torturous attempt to evade the clear constitutional order with
racist dog whistles and inflammatory and demagogic rhetoric
being used to justify this invasion argument.
We also need to be mindful of the damage done to our
constitutional order when advocates for this extremist position
are really saying that States are not bound by Federal law or
Supreme Court decisions with which they disagree. It is
disturbing when the Chair of the House Judiciary Committee on
the Constitution posts on social media that Texas should ignore
the Supreme Court's decision last week after the court held the
Federal Government could remove razor wire that Texas had
unlawfully placed at the border. The truth is that Republicans
in the House, some State officials, and the national leader of
the Republican Party want to block bipartisan action on
immigration reform so that they can campaign on the issue. They
want to grandstand in camo at the Rio Grande and impeach
officials so they can campaign on bluster and boogeymen rather
than doing the hard work of actually solving problems. That is
why today's hearing is yet another irresponsible and
potentially dangerous exercise in taxpayer funded political
theater. We need to enact legislation to address border issues
rather than just have campaign talking points.
With that, I would seek unanimous consent to introduce the
Supreme Court's Opinion in Arizona v. United States, 132
Supreme Court 2492 from 2012.
Mr. Roy. Without objection.
Ms. Scanlon. A Washington Post article published yesterday,
January 29, 2014, entitled, ``Republicans Now Say It Might Be
OK to Ignore the Supreme Court.''
Mr. Roy. Definitely without objection.
Ms. Scanlon. Thank you. I yield back.
Mr. Roy. With that, I do not believe the Chair is here. I
will recognize the Ranking Member of the Full Committee, Mr.
Nadler, for his opening statement.
Mr. Nadler. Thank you, Mr. Chair, and congratulations on
assuming the Chairmanship of this Subcommittee. I served as
Chair and Ranking Member of the Subcommittee for three years
and it holds a special place in my heart.
Unfortunately, today's hearing was not an auspicious start.
It is based on a crackpot legal theory that would have the
public believe that Federal supremacy over immigration and
foreign relations is an open question. There is no open legal
question regarding the States' subordinate role in immigration,
foreign policy, or border security. The Constitution is clear.
The Federal Government is supreme in these matters, and it is
well-settled law that the Constitution gives the Federal
Government primary authority over immigration matters.
As Justice Kennedy, a Reagan appointee wrote, ``The
Government of the United States has broad, undoubted power over
the subject of immigration.'' The Constitution explicitly
provides Congress with the power to establish a uniform law of
naturalization and tasks the Federal Government with conducting
foreign commerce and foreign relations which the Supreme Court
has repeatedly noted are interlinked.
As the court has observed, the treatment of foreign
nationals within the United States can impact foreign diplomacy
and trade including the treatment of Americans abroad. There is
a good reason then why the framers have assigned these
responsibilities to the national government. On matters of
immigration and foreign policy, the Nation must speak with one
voice. We cannot have 50 different immigration or foreign
policies, otherwise, there would be chaos at home and danger to
Americans abroad.
The supremacy clause further ensures that the Constitution
and duly enacted Federal laws are the supreme law of the land,
trumping any State laws to the contrary. Despite the Supreme
Court's crystal-clear reasoning to the contrary, we will hear
from the Majority's witnesses today that the States retain the
sovereign power to exclude foreign nationals. That contention
was part of the doctrine of John C. Calhoun of nullification. I
thought Andrew Jackson and the Civil War settled this
definitively and put this notion to rest.
Nonetheless, on this basis, the Majority and its extreme
MAGA Republican allies make the preposterous argument that the
States can ignore the Federal Government and the Supreme Court
because the Constitution permits States to defend themselves
from imminent invasion when the Federal Government has failed
to act.
There are so many practical and legal problems with this
outrageous and absurd theory that I do not know even where to
begin. Any logical or dare I say originalist interpretation of
the Framers' use of the word invasion in the Constitution makes
it clear that the word invasion refers to an imminent attack by
foreign armed forces. Multiple Federal Courts presented with
this question have concluded in the words of the Third Circuit,
``no support for a reading of the term invasion to mean
anything other than a military invasion.''
It clearly does not mean the so-called invasion that MAGA
Republicans scream about day and night in their extreme Right-
wing media echo chamber. That invasion is often a dog whistle
for the Great Replacement theory, racist and anti-Semitic trope
that suggests that a liberal cabal is directing non-White
populations to ``invade Western countries'' to replace their
``Native White population.'' After all, who can forget the neo-
Nazis and White Nationals chanting Jews will not replace us in
Charlottesville?
I trust, however, that the American public knows the
difference between armed soldiers crossing the border and
mothers with their children fleeing violence in the hopes of
claiming asylum as is permitted under Federal law. There is
then no constitutional basis for this MAGA Republican argument
that Texas or any other State can ignore Federal laws at the
Southern border. If there is no real constitutional
controversy, why are we here today?
The real purpose of today's hearing is to serve as one more
distraction from the MAGA Republican Majority's total failure
on border policy. In their desperation to avoid blame for their
utter inability to govern, MAGA Republicans instead seek to
justify unconstitutional State action by blaming the Biden
Administration and threatening to impeach Secretary Mayorkas.
If they are looking for someone to blame, they should be
pointing the finger at themselves. The Constitution invests
Congress with the authority to address immigration and border
security policy. Yet, instead of doing the hard work of
negotiating a bipartisan approach to immigration and border
security, as is being done in the Senate, the Republican
Majority is holding hearings like this one and they are taking
their marching orders from former President Trump, who within
the past few days has publicly called on House Republicans to
sink a border security deal before most Members have even seen
the text, no matter what it says; also, that he has an issue to
run on in November.
I must also note that I was deeply disappointed to see the
Chair's public call to Texans to ignore the Supreme Court's
order allowing the Federal Government to remove razor wire that
Texas placed on the border. Such remarks from the Chair of the
Constitution Subcommittee no less, are highly irresponsible,
dangerous to our democracy, and sadly, typical of the extreme
MAGA Republicans this Congress. This hearing is nothing but a
shameful exercise in political theater, but I appreciate the
witnesses for appearing and I look forward to their testimony.
I yield back.
Mr. Roy. I thank the Ranking Member. I thank him for his
kind acknowledgment of my assuming the gavel of the
Constitution Subcommittee and obviously, his work prior to that
and I would simply note that New York City Mayor said, ``The
migrant crisis will destroy New York City.'' That sounds pretty
dangerous to me when we are talking about current dangers this
country is facing.
Without objection, all other opening statements will be
included in the record, and I will now introduce today's
witnesses.
The Honorable Mark Brnovich. Mr. Brnovich is a partner at
Boies Schiller Flexner, LLP, and the former Attorney General of
Arizona. Prior to serving as Attorney General, he served as an
Assistant Attorney General in Arizona and as an Assistant
United States Attorney.
Mr. Christopher Hajec. Mr. Hajec is the Director of
Litigation at the Immigration Reform Law Institute and is
responsible for overseeing IRLI's public interest litigation.
IRLI is a nonprofit legal organization that advocates and
litigates for responsible immigration policies.
Mr. Brent Webster. Mr. Webster is the First Assistant
Attorney General of Texas, a point of personal privilege, a
position that I once held, so I know the job well. Prior to
joining the Attorney General's Office, Mr. Webster served as a
criminal prosecutor in Texas for 10 years and served as the
First Assistant District Attorney in Williamson County, Texas.
He has also served as a civil litigator and criminal defense
attorney in private practice.
Mr. Omar Jadwat. Mr. Jadwat is the Director of Immigrants'
Rights Project at the American Civil Liberties Union. He has
litigated a number of cases involving immigration law while at
the ACLU. He first joined the ACLU as a Skadden Fellow in 2002,
and we will begin by swearing you all in.
Would you please rise and raise your right hand? Do you
swear or affirm under penalty of perjury that the testimony you
are about to give is true and correct to the best of your
knowledge, information, and belief so help you God?
Let the record reflect that the witnesses have answered in
the affirmative. Thank you. Please be seated.
Please know that your written testimony will be entered
into the record in its entirety. Accordingly, we ask you to
summarize your testimony in five minutes.
Mr. Brnovich, you may begin.
STATEMENT OF THE HON. MARK BRNOVICH
Mr. Brnovich. Mr. Chair, Madam Chair, thank you very much
for having me today. Once again, the views expressed today are
my own and I am here today as a former, two-time elected State
Attorney General, as well as a former Federal Prosecutor and
State gang prosecutor. I am proud to have served our country in
the United States military as an Army Judge Advocate General,
as well as being a first generation American. I understand the
American dream and this issue better than most. Our Nation is
founded on the rule of law. As I sit here today not only as a
former Federal Prosecutor and a State gang prosecutor, but a
husband and as a parent, I worry our Nation is under assault
from cartels and gangs that have seized control of our Southern
border. We have seen an unprecedented amount of lawlessness,
human smuggling, sex trafficking, and illegal drugs flooding
into this country. I do believe and we have written a formal
legal opinion stating that this is an invasion pursuant to the
United States Constitution.
The State Self-Defense Clause in Article I, Section 10,
provides that a State may defend itself when it has been,
``actually invaded, or in such imminent danger as will not
admit delay,'' and the State does not need the consent of
Congress to do so. The Invasion Clause of Article IV, Section
4, provides that, ``the United States shall protect each State
against invasion.'' This clause provides dual protection
against an invasion broadly defined. This includes not only
defending against actions by foreign hostilities, but also
other enterprises and more powerful neighbors as the
Constitution States. This encompasses a broad self-defense
against nonhostile actors such as cartels and gangs operating
at our Southern border.
Furthermore, the Import-Export Clause of Article I, Section
10, also recognizes that States retain sovereign authority to
execute inspection laws, which requires operational control of
the State's border to channel entry of goods to authorized
ports of entry. This is an aspect of the historical police
power that is expressly reserved for the States. In sum, both
the power of self-defense against actually being invaded and
the power to execute inspection laws are sovereign powers that
have been retained by the States under the U.S. Constitution
and this allows the States to permit an on-ground invasion at
their borders that is a threat to public safety and security.
The on-ground violence and lawlessness at our Southern
border has been caused by the cartels and gangs is extensive,
well documented, and persistent. Therefore, it satisfies the
definition of actually invaded and invasion under the
Constitution. Two conclusions flow from this. First, the
Federal Government has a duty to protect States under the
Invasion Clause. Second, when the Federal Government fails to
meet its constitutional duties, States retain the independent
authority under the State Self-Defense Clause to defend
themselves when actually being invaded.
There is nothing in the Federal constitutional or statutory
law authorizing the Federal executive to thwart the States from
ensuring on-the-ground safety and an orderly border within
their States. Nor is there any conflict with this and the
orderly conduct of immigration policy by the Federal executive.
No State should ever be put in the position that border States
have been put in through the Federal Government's recent
actions. The Federal Government is failing to fulfill its duty
under Article IV, Section 4, of the Constitution to defend the
States from invasion. The State Self-Defense Clause exists
precisely for situations such as the one present.
Please, let us always remember, the States created the
Federal Government, not the other way around. When the Federal
Government refuses or neglects to protect its citizens, the
States have an obligation and ability to do so.
[The prepared statement of the Hon. Brnovich follows:]
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Mr. Roy. Thank you, Mr. Brnovich.
Mr. Hajec, you may begin.
STATEMENT OF CHRISTOPHER HAJEC
Mr. Hajec. Chair Roy, Ranking Member Scanlon, and
distinguished Members of the Subcommittee, thank you for the
opportunity to appear before you today to testify on the vital
and timely subject of what, under the Constitution, States may
do about the border crisis.
Overall, the Constitution provides well for this emergency,
in my view, because it empowers the States to act in two ways.
In the current circumstances, States may pass nonpreempted laws
to deal with this crisis and they may also decide to engage in
war.
The Supremacy Clause of the Constitution provides that the
Constitution, and Federal laws made in pursuance of it, is the
supreme law of the land. Potentially, then, Federal immigration
law may preempt measures States take to deal with the border
crisis.
Despite this potential, the actual preemption picture, at
this time, is not so dire for the States. This is very much
because of what the States are trying to accomplish and the
contrary thing the administration they are reacting to is
trying to accomplish.
The administration is in the poor legal posture of adopting
enforcement policies calculated to achieve the direct opposite
of the purpose of Federal immigration law. That purpose is
operational control of the border, and that is defined as zero
illegal entries. The law requires zero illegal entries. The
administration seems to want as many as possible.
These policies clearly lack preemptive force. If a State
interferes with the administration's efforts not to enforce the
law, that is not the same as interfering with the law. A State
is free to pursue congressional objectives that the
administration has spurned, as long as it does not, as it does
not violate Federal law while doing so.
Take, for example, Texas' placement of razor wire to block
illegal entries at issue in one case now before the courts.
This wire does not violate any Federal law and it is effective
in achieving Congress' purpose in the immigration laws. It does
not stand as an obstacle to those purposes, but only to the
anti-enforcement purpose of the administration. Such executive
enforcement or nonenforcement policies lack preemptive force,
as the Supreme Court has clearly held. They are not the law and
are not supreme.
In short, there is much that States can do, including in
the area of defensive barriers, even without invoking their
powers of self-defense under the Constitution.
Also, Article I, Section 10, Clause 3, of the Constitution
provides that, without the consent of Congress, States may
engage in war if actually invaded. Governor Abbott of Texas has
invoked this provision and acted under it, declaring that his
State is being invaded by the trafficking cartels, which are
giving cover and material support by the flood of illegal
aliens from around the world who pay the cartels to smuggle
them in.
Decisions about these matters, in my view, are very much
Governor Abbott's to make. There are grounds for thinking that
whether a State has been invaded, and also what steps to repel
an invasion are appropriate, is a nonjusticiable political
question to be decided by States, not the courts.
In the 1990s, States such as California, Florida, and New
Jersey sued the Federal Government for failing to repel the
invasion of their States by illegal aliens, and thus, violating
the Federal Government's duties imposed on it in another
constitutional provision, to protect the States from invasion.
The courts uniformly threw these cases out, holding that
the question of whether a State had been invaded for purposes
of this provision was a nonjusticiable political question to be
decided by the Federal Government, not the courts. The
Constitution commits this question to political actors, and the
courts lack workable standards for resolving it.
By the same token, the question of whether a State has been
invaded for purposes of Section 10 is a nonjusticiable
political question for that State to decide, not the courts.
Here, too, the Constitution commits that question to political
actors, and courts lack workable standards for resolving it.
Likewise, the courts lack workable standards for deciding
whether a given war measure, such as Texas' razor wire and
floating barriers, is an appropriate means of waging war. That,
too, is a nonjusticiable political question for the State to
decide, not courts, which are ill-equipped to decide war.
Thus, following the example of the courts that threw out
the invasion cases against the Federal Government, the courts
should throw out cases against Texas' war because they present
nonjusticiable political questions. This question of war is one
to be decided by political actors, not the courts.
Thank you.
[The prepared statement of Mr. Hajec follows:]
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Mr. Roy. Thank you, Mr. Hajec.
Mr. Jadwat, you may begin.
Or, OK, sir. Mr. Webster, you may begin.
STATEMENT OF THE HON. BRENT WEBSTER
Mr. Webster. Thank you, Chair Roy, for the invitation
today. Thank you also, Ranking Member Scanlon and distinguished
Members.
I want to begin, first, by stating that I have the honor to
serve as the First Assistant Attorney General of Texas under
Attorney General Ken Paxton. We represent the State in all
litigation.
We also have proactively sought to hold the Federal
Government accountable for their illegal actions in over 65
lawsuits. Currently, we are litigating more than a dozen cases
against the open-borders' extremists in the Biden
Administration who have allowed illegal aliens, cartels, human
traffickers, drug smugglers, terrorists, and transnational
criminal organizations to bring chaos into America.
While Texas has done its part to aid the U.S. Border
Patrol, the Federal Government continues to fail us. The Biden
Administration refuses to exercise its power to deny entry,
which, predictably, results in more and more individuals
illegally crossing the border. It also incentivizes dangerous
situations.
As the Supreme Court has explained, ``an alien who is
detained shortly after unlawful entry cannot be said to have
`effected an entry,' '' and allowing aliens to enter by
illegally crossing the Rio Grande into Texas--as well as
Chicago, New York, and the rest of our country--will ``create a
perverse incentive to enter at an unlawful rather than lawful
location.''
This is very important for my testimony today because what
matters is lawful ports of entry versus illegal entry. The
illegal entry is where the major harm is done. At no point is
Texas contesting the right of any party to avail themself of a
legal port of entry. What's at issue is the invasion that
occurs in the other locations that are not ports of entry.
I encourage everyone listening to this hearing to read
Judge, Chief Judge Alia Moses' facts, findings of facts, in
what is commonly known as the Concertina Wire Case, as she lays
out very, very dire circumstances and a significantly damning
picture of the Biden Administration's failure to enforce the
laws Congress passed. Again, it is not Texas that is failing to
abide by Congress' laws. It is the Biden Administration that is
failing to abide by Congress' laws.
Now, to be clear, Governor Abbott has invoked his
constitutional right, his constitutional right to self-defense,
and rightfully so. As a prosecutor, I was very aware of the
dangers that the cartels faced, and I know that they control
Northern Mexico. So, they have operational control of that
area. They are functionally the government, the governing body,
of that area, and they are leading this incursion.
They're interested in making money. They make money off of
human trafficking, off immigration, drugs, you name it. They're
down for whatever way, but their goal is to invade our Nation.
Now, Governor Abbott has invoked his right to self-defense,
and he's adopted three strategies.
First, Operation Lone Star. He has mobilized law
enforcement and fought to re-route these immigrants toward the
ports of entry and provide barriers and stop them from
illegally crossing. As we know, that's a felony, to illegally
cross. So, he has placed those barriers up using manpower. He
then used concertina wire.
The Supreme Court of the United States has at no time
ordered us to withdraw our concertina wire. That is false. We
sued the Federal Government for cutting our concertina wire.
To read from Judge Moses' opinion, ``Border Patrol Agents
can be seen cutting multiple holes in the concertina wire for
no apparent purpose, other than to allow migrants easier
entrance further inland. Any rational observer could not help
but wonder why the Defendants''--the Defendants are the Federal
Government-- ``do not just allow migrants to access the country
at a port of entry,'' which is only a mile away from where this
concertina was laid.
Instead of supporting our attempts to route these
individuals to the port of entry and prevent the felony of
crossing, illegally crossing, at the border, the Federal
Government has turned their guns against us and used their
resources to sue the State of Texas for defending itself.
They are snubbing their nose at Congress. They show up in
the U.S. Supreme Court and they argue that they have
prosecutorial discretion to disregard the laws Congress passed
in the nineties.
Congress should care about that, and Congress should do
something about that. So, I'm here today to ask help from
Congress. Please help Texas. Please help stop this invasion.
[The prepared statement of the Hon. Webster follows:]
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Mr. Roy. Thank you, Mr. Webster.
Now, Mr. Jadwat.
STATEMENT OF OMAR JADWAT
Mr. Jadwat. Thank you, Mr. Chair and Members of the
Subcommittee, for the opportunity to testify on this important
subject.
For 150 years, the Supreme Court has been crystal-clear.
Regulation of entry into and expulsion from the United States
are Federal matters from which the States are excluded. From
Chy Lung v. Freeman in 1875 to Arizona v. United States in
2012, the Court has repeated this point over and over.
States can't evade this rule by claiming they are merely
stepping into the shoes of the Federal Government and enforcing
Federal laws. Again, this is black-letter law.
In Arizona, the Supreme Court underlined that, when a State
purports to take over Federal immigration enforcement for
itself, it unlawfully violates the principle that the removal
process is entrusted to the discretion of the Federal
Government.
If the rules were different, the already difficult task of
managing and operating the immigration system would be
infinitely more complex. No administration and no Congress
would stand a chance of developing a coherent immigration
policy, and the end result would be more chaotic and less
effective by any measure.
I'd like to turn to what we know about the actual effects
of these kinds of State efforts.
In Alabama, the one State where courts initially allowed a
State immigration law like SB 1070 to take effect, terrified
parents kept their children out of school; families lost their
water service; immigrants were told by landlords that they were
no longer welcome as renters; people were racially profiled by
the police; Brown people buying groceries were asked by
checkout clerks for their papers, and children who did show up
at school were asked why they hadn't yet gone back to Mexico.
New verification rules meant long lines for everybody at DMVs
and courthouses and hassles for businesses seeking to renew
their licenses.
What are we seeing today in Texas? According to The Wall
Street Journal, Texas has spent years and billions of dollars
on the most aggressive attempt by any State to take control
over Federal border security. There is no indication it has
worked.
Instead--and I quote, The Wall Street Journal again--
It is precisely the areas of the border targeted most
intensively by Operation Lone Star that have experienced the
most rapid `increases' in unlawful border crossings since the
operation began.
While failing at its task, Operation Lone Star has not only
cost billions of dollars--I believe the price tag is now over
$10 billion--but it has imposed unjustifiable harms: Mass
incarceration; severe injuries, including a miscarriage; deaths
from vehicle crashes; racial profiling, and more.
As for the invasion hypothesis, the law contains no support
whatsoever for the claim that the present circumstances amount
to an ``actual invasion'' that inverts the Constitution's clear
prohibitions on States engaging in war or taking over
immigration enforcement. In fact, courts have uniformly
rejected previous attempts by States to claim that higher
levels of unauthorized immigration amount to invasion.
Perhaps unsurprisingly, proponents of this claim uniformly
refuse to grapple with the implication of their claim: That any
Governor can declare virtually anything--crime, drugs,
pollution, and dangerous goods--an invasion and supersede
Federal laws at their will, or actually go to war against
foreign countries or groups.
If that weren't sufficiently absurd, also, every court is
required to accept the State's claim that its actions are,
therefore, authorized by the Constitution. A Federal judge
recently called this whole thing ``breathtaking'' and soundly
rejected it.
Indeed, if ever an argument proved too much, it is this
one. It would destroy the Constitution's principle of Federal
supremacy and its careful delineations of the war power.
The invasion claim is made up and incredibly flimsy. The
fact that some State officials are reaching for it now simply
underlines that there is no legitimate way for them to do what
they want to do.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Jadwat follows:]
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Mr. Roy. Thank you, Mr. Jadwat.
We will now proceed under the five-minute rule with
questions.
The Chair recognizes the gentleman from California for five
minutes.
Mr. McClintock. Thank you.
Mr. Chair, it should be obvious to all of us: The Nation
that will not enforce its immigration laws has no immigration
laws. If it has no immigration laws, it has no borders, and if
has no borders, it ceases to be a Nation.
This is the crisis that the Biden Administration has
unleashed by its deliberate decision to open our borders to
literally millions of illegal migrants. Its effect is now being
felt across the country. Its impact on our schools, our
hospitals, our social safety net, law enforcement, public
safety, and national security is absolutely catastrophic.
One part of the crisis caused by this administration is
before us today. It's the constitutional tension between the
governments of the States that bear the burdens of mass illegal
migration and the Federal Government that has caused it.
Fortunately, though, we've got a Constitution that
establishes institutions that are designed to resolve these
tensions, these disputes. The greater the strain that these
issues place on us, the closer we need to hew to that
Constitution.
Immigration law is an enumerated power of the Congress.
That should be indisputable. National defense is an enumerated
power of the Congress. That, too, should be indisputable, with
the exception of an actual invasion when States retain their
sovereign right to self-defense.
At the center of today's hearing is: How do we resolve
these disputes arising under the Constitution? That's the
reason we have a third branch of government. This question is
the rightful province not of the U.S. Congress, but of the U.S.
Supreme Court. Under our Constitution, as Americans, we owe to
it, in the words of the Mayflower Compact, ``all due
submission.''
So, this brings me to the agreement with the minority on
this, this narrow, but critical point: The Constitution must be
upheld in all matters. The Supreme Court has ultimate
jurisdiction over legal disputes arising under that
Constitution, and this is never more important than when we're
in a crisis--and this is a crisis.
Let me ask the Majority witnesses: What am I missing? Go
ahead.
Mr. Hajec. You're missing that the courts don't decide
everything under the Constitution.
Mr. McClintock. No, they decide disputes arising from the
Constitution. This is a dispute between the State and Federal
Governments over what constitutes an invasion and what measures
the States can legally take within the sphere of the enumerated
powers of Congress involving national defense and immigration.
Mr. Hajec. Right. Courts decide cases in court,
controversies in court. If this goes to court--and it is before
the Fifth Circuit now--
Mr. McClintock. Well, it's a dispute arising out of the
Constitution. Isn't it?
Mr. Hajec. Yes.
Mr. McClintock. Where else would be--
Mr. Hajec. The court--
Mr. McClintock. --the constitutional forum to resolve such
a dispute?
Mr. Hajec. We don't disagree about that. What courts can do
is say that this issue is nonjusticiable; it's a political
issue, and send it back to the States for the Federal
Government--
Mr. McClintock. The courts could do that and--
Mr. Hajec. The courts were not interested in talking about
what an invasion was.
Mr. McClintock. The courts--you're absolutely right, the
court--but that still is the province of the courts, not of the
Congress, not of the administration, and certainly not of the
States.
Mr. Hajec. I would, I would agree. I would just--
Mr. McClintock. OK. Good. Well, I'm glad to hear that.
Mr. Hajec. Punting to the courts--
Mr. McClintock. Let me just go on.
First, any other thoughts from the other Majority
witnesses?
Mr. Webster. I think Congress could authorize the States to
enforce immigration under their congressional powers.
Mr. McClintock. It could, exactly right.
I think that's the whole point. Congress can enact new laws
in concert with the Constitution. It can propose changes in the
Constitution to the States. From that standpoint, you're in the
right place. We're the legitimate place to propose changes to
the Constitution or to change the laws under that Constitution.
The fact remains the issue is not going to be solved,
though, by bills that won't be signed or laws that won't be
enforced or funds that will only be used to expedite more
illegal entries into the country without expelling any. It's
not going to be solved by replacing one Leftist official with
another.
It's going to be solved by the American people electing an
administration that's actually dedicated to enforcing our laws,
upholding our Nation's sovereignty, and defending our country.
This is not a place to resolve the disputes arising between
the States and the Federal Government. That belongs to the
courts. The enforcement belongs to the Executive Branch. It is
not doing its job.
This was set in motion by the American people that elected
that administration. I tell them, ``If you voted for this
administration, this is exactly what you voted for.'' If you're
surprised by that, you weren't paying any attention because
this is exactly what they promised to do; this is exactly what
they've done, and this is exactly what they have defended for
the last three years.
Thank you, Mr. Chair. I yield back.
Mr. Roy. I thank the gentleman from California.
I now recognize the Committee Ranking Member, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chair.
Mr. Chair, I find myself in rare agreement with Mr.
McClintock--not on the subject of immigration and not on the
actions of the Biden Administration, not on the causes of
what's happening, but on the constitutional question which is
clear.
Mr. Jadwat, is there an open legal question as to whether
the States have independent authority over immigration and
foreign policy?
Mr. Jadwat. No.
Mr. Nadler. Or is it clear that the Constitution gives the
Federal Government primacy over these matters?
Mr. Jadwat. No, Mr. Congressman, it's clear that this is
the Federal Government's job.
Mr. Nadler. Generally, how would you characterize the
Supreme Court's rulings in cases where the Federal Government
has challenged State regulation of immigration matters on the
basis that such regulations are preempted by the Supremacy
Clause and Federal law? Have they been more favorable to the
Federal Government or to the States?
Mr. Jadwat. To the Federal Government.
Mr. Nadler. How would you characterize these rulings in
general?
Mr. Jadwat. Again, I think it's clear. The Court has
reiterated time and again that this is an area where the
Federal Government has exclusive authority and that States
can't enact their own rules or purport to step into the shoes
of the Federal Government and enforce Federal laws.
Mr. Nadler. Thank you.
Now, the premise of this hearing is that we are faced with
an invasion from abroad, a foreign invasion, and the States
have the power under the Constitution to repel an invasion.
Now, multiple Federal courts have presented with this question,
have concluded, in the words of the Circuit Court, of the Third
Circuit, rather, quote,
That there is no support for reading the term ``invasion'' to
mean anything other than a military invasion.
Mr. Jadwat, has there been any military invasion of the
United States? Any foreign armies crossing our borders
recently?
Mr. Jadwat. No, sir, not to my knowledge.
Mr. Nadler. Not, in fact, since 1814?
Mr. Jadwat. I'll take that, yes.
Mr. Nadler. Yes, I would not include the Confederacy. That
was a civil war.
Now, is there any question that the term ``invasion'' does
not refer to what's happening now because there's no military
force invading us, and that whatever is happening at our
border, however you want to characterize it, it's not an
invasion under the meaning of the Constitution?
Mr. Jadwat. Yes, I think that's clear, both under the
decisions of the courts that have discussed that question and
under the plain terms of the Constitution itself.
Mr. Nadler. So, there is no basis for Texas, or any other
State claiming authority, to do anything other than what the
Federal Government does in this area?
Mr. Jadwat. That's right.
Mr. Nadler. It's correct?
Mr. Jadwat. Yes.
Mr. Nadler. Thank you.
Are you familiar with the ``great replacement conspiracy
theory''?
Mr. Jadwat. Yes.
Mr. Nadler. How does the argument that we heard here today
that there is a, quote, ``actual invasion of the Southern
border,'' feed into this racist conspiracy theory?
Mr. Jadwat. I think that when you talk about people
invading the country, ``poisoning the blood of America,'' those
sorts of terms, it adds fuel to the fire of these kinds of
theories.
I also think, in particular, when you think about the term
``invasion,'' it paints the so-called invaders as violent, and
even more so, it authorizes violence against those people.
In war, we can do things that would be illegal in any other
context--killing, violence, all sorts of terrible things.
According to the folks at this table, they're not speaking
metaphorically; they're not just using rhetoric; they are
actually authorized to engage in war against people who are
coming to this country. That I think is profoundly dangerous.
Mr. Nadler. So, you think that promoting this actual
invasion argument is not only wrong as a matter of law, but
potentially dangerous to innocent people and to the country as
a whole?
Mr. Jadwat. Yes, I do.
Mr. Nadler. Let me ask Mr. Hajec, given the Court's
uniform, every decision I'm aware of for the interpretation of
the term ``invasion'' in the Constitution as meaning an
invasion, a foreign invasion by a military force, how do you
justify Texas', or any other States' independent actions in
this area?
Mr. Hajec. By the Constitution, it's a--the only--there's
nothing, there's no sort of law of war, Clausewitzian
definition of ``invasion'' that has anything to do with that
constitutional provision.
Mr. Nadler. I just quoted the Third Circuit that says, ``No
support for reading of the term invasion to mean anything other
than a military invasion.''
Mr. Hajec. This is--
Mr. Nadler. Every other court that has addressed this issue
said the same thing. You're saying that every Federal--
Mr. Hajec. This is the court--
Mr. Nadler. You're saying that every Federal court is wrong
and you're right?
Mr. Hajec. The courts that have said that I believe are
wrong. The Constitution simply uses the word ``invasion,'' and
it would carry its meaning in ordinary language--
Mr. Nadler. The courts--
Mr. Hajec. If you look at dictionaries at that time--
Mr. Nadler. Forget dictionaries. Our courts interpret the
Constitution and are authoritatively--
Mr. Hajec. Courts interpreted the Constitution belongs to
the people--
Mr. Nadler. Our courts have interpreted the phrase
``invasion'' to mean a foreign military invasion, and anything
to the contrary is nonsense.
I yield back.
Mr. Roy. The Chair will recognize myself for five minutes
for questions.
Let me just ask each and every one of you a question. The
3,000-plus Americans that died on September 11th, do you think
they're comforted by the definition of ``invasion'' that has
been posited by the Ranking Member?
Just go down the line. Mr. Brnovich, do you think they're
comforted by that definition of ``invasion''?
Mr. Brnovich. Well, I can't speak to other Members of the
Committee, but I will just say that, obviously, the President
is at the apex of his or her power when it comes to border
issues and immigration. So, I feel like there's two ships
passing in the night.
Mr. Roy. Just for time's sake--
Mr. Brnovich. This is an issue related to security, border
security not immigration.
Mr. Roy. Right. Mr. Brnovich, question: 3,000 Americans
were killed?
Mr. Brnovich. Yes.
Mr. Roy. People are trying to say that there's a specific
invasion, that we haven't been invaded since 1814. Do you think
the families of the 3,000 who were killed would suggest that
what happened on September 11th--the product of overstayed
visas and a bad system that we have here in terms of protecting
against unwanted attacks--that this is an invasion from the
standpoint of any logical conclusion of American who's
concerned about their safety and well-being? Yes?
Mr. Brnovich. September 11th was an invasion and an attack
on the--
Mr. Roy. Mr. Hajec, would you think so?
Mr. Hajec. I would think they would not be comforted.
Mr. Roy. Right.
Mr. Webster?
Mr. Webster. It was an invasion.
Mr. Roy. Right.
Now, Mr. Jadwat, yes or no?
Mr. Jadwat. I wouldn't purport to speak for the families of
people who were killed on that--
Mr. Roy. Right. Do you think, as an American, it was an
invasion to have people come in and bomb buildings, fly planes
into buildings, and kill 3,000 people?
Mr. Jadwat. Within the meaning of that clause of the
Constitution--
Mr. Roy. People who overstayed visas?
Mr. Jadwat. Within the meaning of that clause of the
Constitution, because it's--I agree with everybody here--it was
an attack. I was blocks away when it happened.
Mr. Roy. So, is that a yes or no? No. You're saying,
``No,'' then?
Mr. Jadwat. Not within--I don't think so, not within--
Mr. Roy. Right. So, for the average American watching this,
and they're saying, ``OK, that is how we have to live in the
modern world.'' Say, that, OK, unless the Redcoats are marching
right in, coming right up in through New York, coming up the
river and saying, ``OK, we're here,'' right? Or unless there's
an army coming across the Rio Grande, that's the invasion.
When 3,000 Americans are dead because we were attacked by
people who overstayed their visas, because we have a very
broken immigration system, or we now have people who are going
around the country that just end up in Minnesota, who have been
here for a year, that are clearly affiliated with terrorist
organizations, that somehow we don't have to be concerned about
whether or not that's an invasion? Right?
Do you believe that President Biden is responsible for the
crisis at the Southern border, yes or no?
Mr. Brnovich?
Mr. Brnovich. Absolutely.
Mr. Roy. Mr. Hajec?
Mr. Hajec. Yes.
Mr. Roy. Mr. Webster?
Mr. Webster. Yes.
Mr. Roy. Mr. Jadwat?
Mr. Jadwat. No.
Mr. Roy. President Biden is responsible for the crisis at
the Southern border?
Mr. Jadwat. President Biden is responsible for the policies
of his administration.
Mr. Roy. So, is he responsible for the present crisis at
the Southern border?
Mr. Jadwat. To the extent that his administration--
Mr. Roy. Is that a yes or no?
Mr. Jadwat. Would you let me finish?
Mr. Roy. I mean, is it yes or no? Is he responsible for the
crisis at the Southern border, he and--
Mr. Jadwat. He is responsible for the policies of his
administration and their effects at the border.
Mr. Roy. Well, I'll take that as a yes, then. Is the Biden
Administration responsible for the border crisis this country
is facing? That I think was a yes.
Do you believe that what is currently happening on the
Southern border constitutes an invasion, as we understand it in
the Constitution and as applied in today's world, where we're
dealing with the forces that we're dealing with around the
world, the forces who want to endanger the American people?
Mr. Brnovich, yes or no, is what is currently happening on
the Southern border an invasion?
Mr. Brnovich. As our first in the Nation opinion expresses,
this does constitute an invasion, pursuant to the U.S.
Constitution.
Mr. Roy. Thank you, Mr. Brnovich.
Mr. Hajec?
Mr. Hajec. Yes, because the cartels are committing hostile
encroachment onto Texas, and that constitutes an invasion.
Mr. Roy. Thank you, Mr. Hajec.
Mr. Webster?
Mr. Webster. Yes, absolutely.
Mr. Roy. You? Mr. Jadwat?
Mr. Jadwat. No.
Mr. Roy. I think we know the answer.
Mr. Jadwat. No.
Mr. Roy. You believe it's no?
Mr. Jadwat. Not within the meaning of that clause of the
Constitution.
Mr. Roy. So, here's a question. Do you believe that States
like Texas or Arizona, or any other State, has a right to
defend their citizens and take action to secure the border,
particularly in the complete and abject failure of the Federal
Government to do so, as the Constitution contemplated,
notwithstanding the views expressed by some on both sides of
the aisle to the contrary? Yes or no, do the citizens of those
States have the right to defend their citizens and take actions
to secure their border?
Mr. Brnovich?
Mr. Brnovich. The Governor does, indeed, have the ability
to call up the National Guard or use State resources to protect
the citizens of their State.
Mr. Roy. Mr. Hajec?
Mr. Hajec. Yes, it's clear--that right is clearly stated in
the Constitution.
Mr. Roy. Mr. Webster?
Mr. Webster. Yes, for Texas.
Mr. Roy. Mr. Jadwat?
Mr. Jadwat. Again, 150 years of Supreme Court precedent
says that States do not have the authority to take immigration
matters into their own hands, and no Governor--
Mr. Roy. Was, was Dred Scott a good thing?
Mr. Jadwat. No Governor has the right--
Mr. Roy. Was Dred Scott an opinion that we should follow?
Mr. Jadwat. We're not talking about Dred Scott here. We're
talking about 150--
Mr. Roy. Do we--next, next question--do we--right, but--
Mr. Jadwat. No Governor--
Mr. Roy. --it does matter.
Mr. Jadwat. No Governor--and no Governor has the authority
to override that Supreme Court precedent or--
Mr. Roy. That wasn't the question. That wasn't the
question.
Mr. Jadwat. --the Constitution by claiming that an invasion
has taken place.
Mr. Roy. Mr. Jadwat, with all respect, that wasn't the
question.
Your time is up. You may answer the question. We know where
you stand.
Do we have operational control of our Southern border, as
defined by the Secure Fence Act of 2006, which States,
Operational control means the ``prevention of all unlawful
entries into the United States.'' It includes ``entries by
terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband.'' Yes or no?
Then, I'll finish my questions.
Mr. Brnovich. No.
Mr. Hajec. No.
Mr. Webster. Do not.
Mr. Roy. Mr. Jadwat?
Mr. Jadwat. No, and we never have, and we never will, by
that definition.
Mr. Roy. Well, at least that's consistent with Secretary
Mayorkas, who told me, under oath, in this room, that he did
have operational control.
With that, I would recognize Mr. Cohen, the gentleman from
Tennessee.
Mr. Cohen. Thank you. Thank you. I am going to ask Mr.
Webster because he is from Texas, most of the immigration is
coming through Texas, is it not?
Mr. Webster. Currently yes.
Mr. Cohen. Are most of those immigrants staying in Texas?
Mr. Webster. There are a lot of them staying in Texas, but
they are routing throughout the country. It's affecting the
whole Nation.
Mr. Cohen. Are most of them staying in Texas?
Mr. Webster. No.
Mr. Cohen. Where are they going to?
Mr. Webster. Well, you'd have to ask each one of them where
they're going.
Mr. Cohen. I don't have time for that. You should have an
idea.
[Laughter.]
Mr. Webster. I do know that the mayor of New York has
expressed concerns about how many are arriving in his city, so
there's a lot there.
Mr. Cohen. Because your either Governor DeSantis or your
Governor have sent--they have put them on airplanes and sent
them to New York: Buses, airplanes, whatever, and sent them to
Chicago and sent them to Denver. Other than those vacation
tours, as your Governors have planned, where are these people
going?
Mr. Webster. Well, you'd have to ask the Biden
Administration. They also bus individuals and fly individuals
into the interior. Also, the local cities do as well. San
Antonio, El Paso have all bussed and brought people out of
Texas, out of their cities.
Mr. Cohen. I would suspect most of them are staying in
Texas, more than any other State, and yet I read these
proposals by certain Republicans; and Mr. Roy got into it as
well, by mentioning Ms. Clark, that the Democrats allegedly are
all in favor of the immigration folks--people coming into our
country because they want them to come into their districts for
the Census in 2030 to get more Congress people and more money.
Most of the people are staying in Texas.
So, it seems like Texas would get the Congressmen and Texas
would get the money, so it doesn't make any sense that these
States--and in fact--New York doesn't want them, and Chicago
doesn't want them, and Denver doesn't want them, so they are
obviously not caring about the 2030 Census.
Is it Jadwat? Have you heard these theories about the 2030
Census and the reason the Democrats are doing this?
Mr. Jadwat. This is actually new to me.
Mr. Cohen. It is new? Well, I read--Marsha Blackburn, one
of my Senators wrote that you might wonder why Democrats want
to leave our border open. The explanation is straightforward.
Blue States know they are on track to lose congressional seats
and Federal tax dollars when the next Census is tabulated. By
taking in undocumented immigrants who count toward the Census
population Democrat-run States can help offset these losses and
retain their congressional seats and Federal funding.
Is that loony?
Mr. Jadwat. It seems farfetched to me.
Mr. Cohen. Most of the immigrants are staying in the Red
States: Texas and Arizona, and I guess they go to California. I
mean, why not? That is a Blue State. Anyway, neither here nor
there.
The main thing about this hearing which is astonishing to
me is we have got a bill in the Senate that they are working on
which will be the most comprehensive reform of border security
ever. President Biden has said that if it--he will sign it and
he will close the border. That is what I think the Republicans
want. That is what I think they have campaigned on. Now, Mr.
Trump doesn't want that to happen. So, when he talks to Speaker
Johnson he tells him to stop that bill. We don't want to have
an immigration bill because it might help Joe Biden say I have
worked on the immigration crisis, and I have helped stem it.
So, instead of working to help our country and stop the
invasion--there is an invasion on our Southern border. We don't
want to stop the invasion until Mr. Trump gets a chance to deal
with his border issue. We all know what Mr. Trump's border is.
It is the security fences around the prison that he is going to
go to if he doesn't get elected President. That is his border
issue. He doesn't want to have to deal with that border.
For that reason, we are going to let the invasion on the
Southern part of our country continue, let all these people
come in who are raping our women and cheating our friends and
doing all these terrible things and ripping off veterans. We
are going to let that happen until Mr. Trump can see to it that
he doesn't go to the big house with the borders that he fears.
It is just insane that we don't look after our country,
which we should. We should encourage the Senate, which they
would do, to pass their bill. Mr. McConnell says it is the best
bill they will ever have. So does Linsey Graham. Quite a few
Republican Senators are working on this. Langford. They all
want to pass it and they say they are going to get a much
better bill than if they wait until the next administration, if
there is a next administration, that this would be the best
bill possible. You always know the legislation is evolutionary,
so you accept a bill.
Anyway, this is just--we need to get a focus on the real
issues, which is passing a border bill, protecting our border,
protecting our country, and that would be passing a bill that
the Senate has, which is a good bill, and getting it into the
House, passing it here, and not listening to Mr. Trump. I
believe.
Mr. Roy. I thank the gentleman from Tennessee.
I will now recognize my friend and the gentleman from
California.
Mr. Kiley. Thank you, Mr. Chair. I have a question for Mr.
Jadwat, the witness with the ACLU.
If I am to understand your position correctly, you are
opposed to Governors mobilizing their National Guard to secure
the border. Is that correct?
Mr. Jadwat. I wasn't talking about the National Guard. I
was talking about State efforts to actually do immigration
enforcement.
Mr. Kiley. I see. So, I have a press release here from
September 2023. It says,
Governor Newsom increases California National Guard presence at
the border to crack down on fentanyl smugglers.
Would you take that--would you say that action by Governor
Newsom is appropriate and within the bounds of his authority?
Mr. Jadwat. It might be, yes. I have no familiarity with
what is referenced in that article.
Mr. Kiley. Well, the press release again: It says,
Governor Newsom increases California National Guard presence at
the border. Cracking down on illegal drugs including fentanyl
being smuggled into California, Governor Newsom is increasing
the number of California National Guard service members
deployed to interdict drugs at U.S. ports of entry along the
border by approximately 50 percent. Governor Newsom said,
``Fentanyl is a deadly poison ripping families apart and
communities apart. California is cracking down,'' he said,
``and today we're going further by deploying more Cal Guard
service members to combat this crisis and keep our community
safe.''
So, the Governor saw a public safety issue arising from the
situation at the border and mobilized the National Guard to try
to keep our community safe. Would you say that was appropriate
by the Governor?
Mr. Jadwat. It probably would. I would point out that what
we're talking about there, fentanyl at the ports of entry,
that's where the fentanyl is and that's where the focus ought
to be to the extent that's a concern.
Mr. Kiley. OK. You are making a policy judgment as to
what's the greatest, most effective thing to do.
Mr. Jadwat. No, I mean I'm pointing out that as a factual
matter--
Mr. Kiley. I am asking you about his authority.
Does he have that authority?
Mr. Jadwat. CBP, the Cato Institute, everyone who's looked
at the question agrees that overnight approximately 90 percent
of the fentanyl that's coming--
Mr. Kiley. Again, that is not what I'm asking. I am asking
about his authority. Do you agree he had the authority to do
that?
Mr. Jadwat. Again, I don't know the details of that, but it
sounds like what was happening was that he was deploying the
National Guard either in cooperation with the Federal
Government to assist them at POEs, which sounds like the
reasonable thing to do.
Mr. Kiley. So, we have the former Attorney General of
Arizona, first Attorney General of Texas here. Would you say
that in some sense your Governors, either at the time or now,
were simply following the Newsom precedent, that he saw a
public safety risk rising from the border and so made use of
California resources to assist?
Mr. Webster. Well, Texas would never follow California
precedent.
[Laughter.]
Mr. Kiley. Fair enough.
Mr. Webster. It's a similar strategy.
Mr. Brnovich. Yes, clearly States, even States like
California, want to do everything they can to protect the
citizens within our States, and that means at times they will
deploy the National Guard. It means at times they will deploy
Department of Public Safety or State police officers. Because I
think even the State of California recognizes that there is an
unprecedented amount of illegal drugs, of illegal human
trafficking coming into our country and because of that the
cartels have seized operational control of our Southern border,
and as a result of that every American is less safe and every
child is more in danger of dying of a drug overdose.
Mr. Kiley. Thank you.
Mr. Jadwat, you also testified that, ``States do not have
the authority to take immigration matters into their hands.''
You said, ``the Constitution prohibits State regulation of
immigration.'' You said that, ``entry exclusion and deportation
are exclusively Federal matters.'' Federal officials, you said,
``decide whether it makes sense to pursue removal, et al.''
Would the same logic apply to States or other jurisdictions
that have adopted so-called sanctuary policies where they
actively interfere with Federal immigration enforcement? Can we
assume based on your testimony that you oppose those efforts as
well?
Mr. Jadwat. I don't think you should assume that because I
think what so-called sanctuary policies are generally about is
States opting out of Federal enforcement. That's an authority
that States have under the Tenth Amendment that protects States
against commandeering by the Federal Government.
So, for example, if the Federal Government said to Texas,
we want you to take your land and your personnel and build a
processing center on the border, Texas could say no, thank you.
That's what States and cities are doing with their sanctuary
laws. No, thank you. We're not going to use police or our
facilities--
Mr. Kiley. OK. That is under sanctuary policies--for
example, in California we had someone who was arrested, was in
custody. ICE asked to know when he was going to be released and
the sheriff's office said we can't tell you because of the
sanctuary State law. That individual was released the next
week. He killed his own three daughters and their chaperone.
So, that seems like it is pretty actively interfering with
the Federal decision to pursue removal in this proceeding, does
it not? So, by the very terms of your testimony that is
something that would be unlawful as well.
Mr. Jadwat. Again it sounds like from what you said that
the Federal Government asked the police to do something and
they said no, or the sheriff to do something and they said no.
Mr. Kiley. Taking the decision out of the hands of the
Federal Government authorities, correct?
Mr. Jadwat. That's again the anticommandeering principle
that was elucidated by the Supreme Court in Prince v. United
States, which was about sheriffs not doing the Federal
Government's bidding in enforcing gun regulations. It's the
same principle that applies here.
Mr. Kiley. Thank you. My time has expired. I yield back.
Mr. Roy. I thank the gentleman from California.
I now recognize the gentlelady from Texas.
Ms. Escobar. Thank you, Mr. Chair, and many thanks to our
panel.
I represent El Paso, Texas. I am the only Member of this
Committee who lives on the U.S.-Mexico border, and in fact, it
has been my community that has had the highest numbers of
apprehensions and encounters, and we probably will again this
year.
This hearing is a very brazen effort to provide political
cover to my Governor, Government Greg Abbott, who has
unconstitutionally used State resources to try to impose the
State's own immigration policies and laws.
The current amount being used by the State is $11 billion,
$11 billion of State taxpayer money, and I think we can all
agree because a witness said earlier, ``Texas has the highest
number of encounters.'' That is true. El Paso, the highest
number of encounters.
Obviously, what Greg Abbott is doing is an absolute
failure. There is nothing about what Greg Abbott is doing that
is about trying to improve the situation, trying to solve a
great challenge. It is all about political posturing, which is
what this Subcommittee has become about, which is what this
Committee has become about, and it is unfortunately about what
this Congress has become about. It is really tragic because our
Nation deserves bipartisan solutions that make sense and that
help our country.
Instead, what we are doing here today is advancing a
crackpot legal argument that is itself based on a racist
conspiracy theory. That theory, the argument is rooted in the
repeated cries of an invasion, which is a dog whistle for the
Great Replacement theory.
The Great Replacement theory actually was a motivator for a
White supremacist who drove to my community and slaughtered 23
people and injured dozens more. So, there are deadly
consequences to this kind of hate speech.
Why else would the Majority invite a witness whose
organization is linked to Right-wing anti-immigration
organization founded by a White nationalist if not to promote
these theories.
Mr. Jadwat, I would like to ask you, are you familiar with
the Great Replacement conspiracy theory?
Mr. Jadwat. Yes.
Ms. Escobar. How does the argument that there is an actual
invasion at the Southern border feed into this racist
conspiracy theory?
Mr. Jadwat. So, I think it dehumanizes people by treating
them not as people, but as invaders. As I discussed before, it
paints them as violent when everybody here would agree that the
vast majority of people who come to the border are not. It
authorizes violence against them, and that is the truly
dangerous piece of this language.
Again, the contention here is it doesn't just--this is not
a rhetorical point. This is not a metaphor that they're using.
They're saying as a matter of law that we are authorized to use
the tools of war in responding to what we have termed an
invasion. I think you heard this comparison to defending your
home against an invasion and how you wouldn't look at the
Constitution or the statute books before you took matters into
your own hands and responded with violence. That is not the way
that we can or should be responding to what's happening on our
border.
As you know, as somebody from a border community the sort
of chaos and violence that would be unleashed if that were the
rule would be profoundly, profoundly destructive.
Ms. Escobar. I will close by saying it already has been and
the survivors of the August 3, 2019, massacre in El Paso, Texas
can testify to just how destructive and dangerous that kind of
language is. I yield back.
Mr. Roy. I thank the gentlelady from Texas.
I now recognize the gentlelady from Wyoming.
Ms. Hageman. Thank you.
Mr. Brnovich, you stated a moment ago that States want to
do everything they can to protect their citizens. Would you
agree that every single Member of Congress should also take
whatever steps are necessary to protect their citizens?
Mr. Brnovich. I believe every Member of Congress takes an
oath to swear to uphold the Constitution of the United States
and that includes protecting their citizens within their States
or districts.
Ms. Hageman. Mr. Jadwat, you defend sanctuary cities under
the concept of the Tenth Amendment, which I am really excited
to hear a liberal talk about the importance of the Tenth
Amendment. I think we can have a lot more discussions about
what we ought to be doing under the Tenth Amendment. You used
the Tenth Amendment claiming that it is an anticommandeering
theory, but isn't that exactly what the Biden Administration is
doing, is commandeering the resources of Texas and Arizona and
every other State in the Nation to absorb the costs associated
with illegal immigration?
Mr. Jadwat. So, commandeering refers to--
Ms. Hageman. I want you to answer my question.
Mr. Jadwat. Well, no. Not under the legal definition--
Ms. Hageman. When Texas has to use its resources to absorb
the costs associated with illegal immigration, isn't that
commandeering?
Mr. Jadwat. Not within the meaning of the--
Ms. Hageman. OK. Then, I am not going to bother with you if
you are not going to actually engage on the terminology that
you use.
Mr. Brnovich, in February 2022, you drafted an Attorney
General opinion on the Federal Government's duty to protect the
States and the States' sovereign power of self-defense when
being invaded. One of the questions you address is what
constitutes actually invaded for the State self-defense clause
an invasion for the invasion clause. Mr. Brnovich, what do you
conclude the scope of invasion means in the Constitution and
does the Constitution's contrasting of invasion with
insurrection, rebellion, and domestic violence create a
situation where it can be applied to non-State actors?
Mr. Brnovich. Our opinion lays forth the distinction
between domestic insurrections and rebellion versus an actual
invasion. If you go back to the Federalist Papers, which were
designed during the constitutional ratification, the debates in
Federalist 41, Federalist 42, Federalist 43, James Madison set
forth clearly that invasion constituted not only State, but
non-State actors.
In fact, during the ratification, during the Virginia
ratification debate one of the examples future President
Madison used was the fact that there was pirates and smugglers
off the coast of Virginia and that Virginia had a right to
defend itself against people that were breaking the law. If the
Federal Government, the Federal Navy, just--nonexistent at the
time, couldn't do anything, then the State of Virginia could.
So, even a lot of the conversation, the discussion we've
had today is about whether States can enforce immigration law.
The reality is that the Federal Government--the President has
had his/her height of power when it comes to immigration law.
However, the courts have never said that States do not have the
ability to protect themselves, that States do not have the
ability to stop or repel an invasion.
If you read our opinion, we lay forth not only the facts--
and we've heard so many facts from this Congress about the
number of people dying. I mean, my goodness, more than 100,000
Americans dying from fentanyl and drug overdoses. We've seen a
spike in Arizona just in the last five or six years from
single-digit percentages into above 50 percent when it comes to
those deaths.
We've seen a spike in violence. Anybody--I would urge you
to come to the Southern border. When you see rape trees where
women are being victimized and traumatized by human smugglers
and the drug cartels you will ask yourself why isn't this
Congress, why isn't this administration doing more, not only to
protect our citizens here, but also to stop people from being
exploited by the cartels and gangs?
Ms. Escobar. It is an incredibly inhumane situation that
has been created by this administration.
Joshua Trevino of the Texas Public Policy Foundation
clarified that invasion means entry plus enmity, and the action
of modern non-State actors can meet this threshold if they
reach a scale where they overthrow or curtail the lawful
sovereignty of a State.
Mr. Brnovich, you were the Attorney General of Arizona
where you served as the Chief Legal and Law Enforcement
Officer. Can you speak from your experience about whether the
actions of the cartels displace State sovereignty and
constitute entry and enmity?
Mr. Brnovich. As you know, the States are absorbing a cost
not only fiscally, but a cost to human treasure as well. We
just talked about the tragic drug overdoses and the drug
deaths. We've also seen a spike in violence. If you talk to the
sheriffs not only along our Southern border, but sheriffs in
places like Pinal County, they will tell you they've seen a
dramatic increase in the number of car pursuits and car chases
which also are dangerous to our community.
It seems like every day now you see a video of literally
cartel members escorting people across our border. So, as every
day goes on and the administration refuses to act the cartels
are getting more and more powerful. They have made billions, if
not trillions of dollars off the last three years and what's
happened. As a result of that my worry as an Arizonan and as a
first generation American is that Mexico is on the brink of
becoming a narco-State.
Ms. Escobar. Thank you. I appreciate that and I yield back.
Mr. Roy. I thank the gentlelady from Wyoming.
I will now recognize the gentlelady from Vermont.
Ms. Balint. Thank you, Mr. Chair. Let's talk about
invasion. Let's talk about the invasion of the U.S. Capitol on
January 6, 2021, when the heart of American democracy was
attacked by a mob, many of them violent, of then President
Trump supporters who fought to keep him in power illegally.
The evidence is overwhelming and yet many, many Republican
Members of the House not only continue to deny the truth, but
still will not admit that Joe Biden won the 2020 election. This
includes our current House Speaker, who even as recently as
several weeks ago refused to affirm that Joe Biden won the 2020
election and is the legitimate President of our Nation. The
Speaker of the House.
It includes another Member of GOP House leadership who has
taken to calling those imprisoned for their illegal actions on
January 6th hostages. Hostages. They attacked our very
democracy and yet they are the victims? It is morally bankrupt.
This is not only a sick twisted perversion of the truth. It is
also deeply offensive to Americans across this country.
What my extreme MAGA Republican colleagues and their
apologists are doing is perpetrating a deeply cynical
psychological manipulation. They tell us we can't trust our own
eyes, that the men and women in uniform here at the Capitol
were not battered and bloodied by the mob. They tell us that it
is not true that Members and their staff were hiding in fear
for their safety, that it is not true that Democrats and
Republicans on that day knew that they were in danger, and that
the President, who incited the riot and the invasion and the
insurrection--they knew this truth and they said on that day we
are done with this guy. We know the role that he played. We are
done with this guy. They knew his role, they saw it up close,
and then they backpedaled and apologized for Trump and spread
misinformation.
So, I find this offensive as a public official who has
sworn to uphold the Constitution, but it is also deeply
concerning as an American who cares deeply about this country
and the Constitution. So, you have to forgive me, you got to
give me a little grace here for not being able to take this
hearing seriously.
This hearing, as we have said, is an absurd legal argument.
The Constitution is clear: The Federal Government is supreme in
matters of immigration and border policy. With all due respect
to Chair Roy, I believe that his call for Texas to ignore the
Supreme Court is an endorsement of lawlessness and chaos.
I am a thoughtful and committed public servant. Yes, we
need a secure border. Yes, we need humane border policy. We
need immigration reform. We need more legal pathways for
migrants to work. Yes, we are a deeply divided Congress, and we
must work in a bipartisan manner to actually solve the
immigration issues that have plagued us for decades. Yet, that
is not what this hearing is about. It is worse than a
distraction. It is worse than a waste of time. It is actually
an insult to Americans everywhere.
Right now, Senators, Republicans and Democrats, are working
on a compromise immigration bill. Right now, the President has
said that he is prepared to sign a bipartisan immigration bill.
Right now, the President has said he will put an additional $14
billion into securing the border.
What has been the response from my Republican colleagues in
the House? No. The response is no. Trump doesn't want it, so we
don't want it. We don't want a solution, we don't want to
alleviate suffering, we don't want to actually secure the
border. So, you have to give me some grace, you have got to
forgive me for not believing the calls for this being such an
emergency.
A bipartisan group in the Senate says we have a solution.
The MAGA response has been let's keep the chaos; we are good.
Let's keep the suffering; we are good. The supposed extreme
danger doesn't seem so extreme as I sit in this hearing because
it is not good for the ex-President. So again, forgive me for
not taking this hearing seriously.
Our Republican colleagues have made it clear repeatedly
that they will not work in a bipartisan manner on actual
immigration reform. I yield back.
Mr. Roy. I thank the gentlelady from Vermont.
Since my name was invoked, I will just note that border
patrol agents reach out all the time and they are thankful that
the razor wire is being implemented by Texas. So, keep it up.
I will now yield to the gentleman from South Carolina.
Mr. Fry. Thank you, Mr. Chair. I would like to yield two
minutes to my colleague and good friend from Arizona, Mr.
Biggs.
Mr. Biggs. Thank you. I appreciate the yielding to me.
I am going to ask you, Mr. Brnovich, is it absurd on its
face to argue that the same Federal Government that is not
protecting the sovereign State from an invasion under Article
4, Section 4, also gets to determine the definition of what
constitutes an invasion?
Mr. Brnovich. Mr. Biggs, yes, I think that this is quite
the dilemma the administration has. I think most Americans and
most Arizonans that I talk to ask me why was President Biden so
quick to tear down the border fence in Texas, but so slow to
shoot down a Chinese spy balloon? I think that is an indication
of where the priorities are for this administration.
As you know, in Arizona we see--every day we deal with
constituents, former constituents, people that have lost a
loved one, very often teenagers, young people as a result of
the fentanyl pouring across our Southern border. We've seen a
rise and spike in violence. So, if the Federal Government is
unwilling or unable to do its job to secure the border, then I
think the States have every ability to do so.
Mr. Biggs. It has previously been defined--one definition
of invasion is an encroachment on rights of another. So, I
guess I would ask you, in Arizona--I have got 30 seconds left--
is the environmental damage caused by hundreds of thousands of
people illegally entering the country, littering, tramping over
actually natural wildlife preserves, destroying those
preserves--might that constitute the damage--encroachment of
the rights that constitutes invasion?
Mr. Brnovich. Yes, Congressman Biggs, we actually made this
argument when we sued the Biden Administration over its failure
to build the border wall. There's an average of eight pounds of
trash per person left at our Southern border. So, not only are
people that are crossing the Southern border destroying Arizona
and Texas and other natural habitats, they're destroying game
trails and they're leaving very often behind plastic bottles,
gasoline tanks, and all sorts of other items that are
nonbiodegradable--do constitute a threat to the environment and
animals living in those regions.
Mr. Biggs. I yield back to the gentleman from South
Carolina.
Mr. Fry. Thank you, Mr. Biggs.
I am going to piggyback on--I think you were going to make
a comment, general, about Replacement Theory earlier and you
were out of time. Would you care to comment on that, sir?
Mr. Brnovich. Yes, I thank you very much for that question,
Congressman Fry. I will tell you as a first generation American
I find it very insulting for people to assume or accuse people
up here, including myself, of somehow advocating some theory.
What I do know as someone that grew up speaking Serbo-Croatian
as my first language, I think it wasn't until the fourth grade
that I realized my name was Brnovich and not Burniwich or
Brontosaurusvich or any other words that rhyme with that.
That's just what the teachers called me.
I will tell you this is a Nation founded on the rule of law
and what we are seeing right now is that shredded in the
process. As Americans we don't have a common religion, we don't
have a common ethnic identity, but we are founded on these
sacred documents: The Constitution and the Declaration of
Independence. That's what binds us together.
Any time you have a process that not only creates a threat
to public safety as we've seen with the gangs and cartels
seizing operational control of our Southern border--and that
affects all of us, but we also see the process of the
President's failure and Secretary Mayorkas' failure to do their
job a shredding of the U.S. Constitution. So, the very reason
why people are coming here--because no matter who you are or
where you come from you can become an American. It is being
shredded in the very process and the rule of law is being
undermined by the chaos that's occurring at our Southern
border.
Mr. Fry. You are right, and it is frustrating, general. I
am struck just being in this Committee room today, quite
frankly, that my colleagues on the other side seem to be
suffering from a little bit of amnesia because it wasn't long
ago as a freshman that I sat down there in my first hearing and
the comment was made by the Ranking Member that Republicans
were imagining a border crisis. This wasn't like five years ago
or 10 years ago. This was last year.
So, the amnesia has struck and now all of a sudden they are
border hawks and they want to have us accept a Senate deal,
which doesn't seem to be a deal in any which way for the
American people.
What is interesting to me is we have always had an effort
by the Feds under Republican and Democratic Administrations to
fix the issue, right? Even the former Secretary of Homeland
Security under Obama said that, ``if 1,000 migrants in a day,
that is a crisis point,'' but they want us to accept in a deal
5,000 and then they will shut down the border.
So, let me ask you this: Considering that the Federal
Government, in general, is not doing its job, what remedies do
States have to pursue fixes to this, because the burden is
heaviest on those at the Southern border?
Mr. Brnovich. Congressman, this is exactly the reason I
think States like Texas have done this very reluctantly. I mean
as you said, this has been going on for years and for years the
States were waiting for the Federal Government to do its job.
It refuses to do so. So, I think it's incumbent on Congress to
either impeach Federal officials that are refusing to do their
job, to cutoff funding for those agencies, or alternatively--I
mean even during the Obama Administration, during the Bush
Administration we had Operation Streamline.
The laws exist where if there was a surge essentially to
our Southern border--I wish we worried more about your Southern
border than the border between Russia and Ukraine. If there was
a surge to our Southern border with prosecutor and judges, once
again you would see a dramatic decline in the number of people
illegally the country.
So, the answer to this question, it shouldn't be. The
States shouldn't have to do the job the Federal Government
won't. The answer though is clearly that the Biden
Administration won't do its job. The States are frustrated.
People are dying. There are expensive costs not only in human
treasure, but in real treasure. That's why States like Texas
are finally acting.
Mr. Fry. Correct. $1,100 per American citizen. That is an
astronomical amount.
With that, Mr. Chair, I yield back.
Mr. Roy. I thank the gentleman from South Carolina.
I will now recognize the Ranking Member, the gentlelady
from Pennsylvania.
Ms. Scanlon. Thank you, Mr. Chair.
I just wanted to try to clarify some of the points that
have been made throughout the debate. The gentlewoman from
Wyoming raised Mr. Brnovich's writings laying out his position
with respect to the fringe legal theory about invasion that we
have seen pressed in this hearing. We continue to want to point
out that this is a political argument, that it is not a
constitutional argument.
I would seek unanimous consent to place in the record the
article in the Arizona Mirror from July 7, 2022, when Mr.
Brnovich laid out his position entitled, ``Brnovich lagging in
the polls, begs Ducey to declare an `invasion' to militarize
the border.''
Mr. Roy. Without objection.
Ms. Scanlon. Thank you.
I know Mr. Jadwat was asked some questions about whether
there was a contradiction between the clear language of the
Constitution and the Supreme Court's holdings saying that the
Federal Government has sole authority over issues regarding
immigration and admission to this country. He was asked whether
the use of the National Guard in California to address
smuggling and distribution of fentanyl in that State somehow
was contradictory there.
Now, I know that we don't have before us the exact terms
there, but is there a distinction, Mr. Jadwat, between the
Federal supremacy on issues of border security and immigration
and the State's ability to enforce criminal laws within their
own State that do not directly address border security?
Mr. Jadwat. Yes, there is. The States obviously have
criminal laws of their own and the ability to enforce them.
Ms. Scanlon. So, if someone brings fentanyl into the
country and then seeks to distribute it in California,
California would be justified in trying to stop that
distribution in its State?
Mr. Jadwat. Yes. I assume that's illegal under California
law.
Ms. Scanlon. You have been asked a lot of questions about
the meaning of invasion, and many of those questions have kind
of run roughshod over the constitutional meaning and the
constitutional history. Can you just lay out one more time what
the constitutional meaning is and the historical context for
the invasion clause?
Mr. Jadwat. Sure. Again, the reference to invasion that
folks are relying on here is actually an exception to the rule,
right, actual invasion. The main point of the compact clause is
that States can't engage in war or do any of that other long
litany of things; that's a Federal responsibility, right?
So, the exception, for the clause itself to make sense,
can't be so broad that it swallows the rule. The theory that
they're putting forward here of an unreviewable ability of any
Governor to point to pollution, to point to gangs, to point to
people coming in and say, voila, invasion, I get to wage war
would completely undermine the main purpose of the compact
clause.
With respect to Mr. Brnovich, when Madison talked about
pirates, he wasn't purporting to define what an invasion was at
all, much less an invasion under that clause of the
Constitution. When Madison did talk about the invasion clause
in immigration, he said that ``immigration was not an
invasion''--well, he said that ``invasions that require the war
power and immigration are distinct things.''
So, there's no contemporary support for their position at
the time, at the founding. The text obviously doesn't support
what they're saying. The implications of their argument, which
again nobody has purported to address on this panel, are really
breathtaking and would really undermine our entire
constitutional system.
Ms. Scanlon. I appreciate that. If we do turn back to the
actual clause in the Constitution, it talks about the
obligation of the Federal Government, not the administration.
So, our continuing concern is that we are in a situation here
where our colleagues are blocking legislation that would allow
the Federal Government to address issues of border security and
they are blocking funding that would allow the administration
to address border security, and then placing us in this
position where they then flip it and try to argue.
I do want to thank Representative McClintock for pushing
back on this deeply disturbing idea that the Federal Government
is bound by the determination of individual States in
interpretation of the Constitution. Again, that would
completely upend our constitutional order.
I see my time is expired, so I would yield back.
Mr. Roy. I thank the Ranking Member, and I now recognize
the gentleman from North Carolina, Mr. Bishop.
Mr. Bishop. Thank you, Mr. Chair. I yield to the gentleman
from Texas presiding, Mr. Roy.
Mr. Roy. I thank the gentleman.
Question for the panel: I mean what amount of death and
destruction among the people of Texas, or any other State is
sufficient to say the State should take action? Under the law.
Like how much death should Texas take? How many Texans should
die every day? Again, fentanyl. We have got 75,000 across the
country, whatever the thousands are in Texas. How many of those
should die every year before the State of Texas does something
about it?
OK. Put aside the fentanyl because, oh, that is all ports
of entry problem. That is bogus. We could have that debate
separately. There are other issues about border patrols
distracted. I would just say, Mr. Webster, as someone who is a
Texan, what is your answer to that question? Right, before
Texas takes action, the Governor is taking action in the
absence of action by the President of the United States do you
think there is a level of death/destruction/danger to the
people of Texas that he should tolerate in the absence of the
Federal Government doing its job?
Mr. Webster. No, there's no--I think the Governor has a
duty and obligation to protect the citizens of Texas and when
he sees harms coming on Texas, he had an obligation to act, and
has.
Mr. Roy. Yes. Mr. Jadwat, I mean is there a level of danger
to the people of Texas that you believe would say the Governor
has a right to defend itself, as in a family whose house is
being invaded at night, has people coming in and trying to
attack one's family? Does the Governor not have some duty to be
able to defend? For example, if cartels came across the Rio
Grande guns ablazing, not wearing the uniform of Mexico, but
just a hodgepodge of individuals in various articles of
clothing came across guns ablazing into Laredo, could the
Governor repel that with DPS? Not the National Guard. Could the
Governor say you guys--boys, shoot back?
Mr. Jadwat. Are you asking whether Texas has the police
power to address armed people running around in the street
shooting guns?
Mr. Roy. Coming across the Rio Grande. They are armed. Can
the Governor repel that?
Mr. Jadwat. Once they are in the State of Texas if they're
violating Texas' criminal laws, of course the Governor has the
ability to--
Mr. Roy. Oh, so if they are violating Texas' criminal laws
apparently the Governor can do something about it? That is an
interesting observation. I think it is an important one.
Because of course the Governor of Texas can deal with it if the
laws of Texas are being violated, and the people that the
Governor is supposed to represent are entitled to defend them.
I would ask another question, which is would the States, in
this case Texas or Arizona--we have two representatives from
those two States here, past and present. Would those States
have entered the Union had the theory being promulgated by my
colleagues on the Left been openly put forward and said that
we, the Federal Government, will not enforce immigration laws
to the tune of 900,000 releases last year, plus hundreds of
thousands of more through parole, plus hundreds of thousands
more gotaways, overwhelming the jails, that we said, oh, sure,
just use the jails? Go do it. Go arrest people that are bad
actors, filling the jails, filling the hospitals, filling the
schools. If the Federal Government had said here is the deal,
Arizona, here is the deal, Texas, can either of you gentleman
imagine a scenario in which Arizona or Texas would have joined
the Union? Texas in 1845 and, forgive me for not knowing the
year for Arizona.
You, Mr. Brnovich, or Mr. Biggs would know.
Mr. Webster, could you answer that question? Would they
have joined the Union under that theory?
Mr. Webster. If I was there, I can't imagine taking on a
situation where I would be defenseless, and what you're
proposing is a situation where Texas would be defenseless.
Mr. Roy. Correct.
Mr. Brnovich, can you imagine that scenario?
Mr. Brnovich. Well, I will just go--as we talk about first
principles and documents--and Mr. Webster just spoke, so let me
quote from Daniel Webster's 1806 dictionary, the first American
dictionary. At that time the word invaded was defined to mean,
``enter or seize in a hostile manner.'' Webster's 1828
dictionary furthermore went to describe invasion to include
``attack, assault, assail, to attack, or infringe, or encroach
on, and violate.''
If you look--with all due respect to my colleague at the
end of the table; he had mentioned James Madison, look, I mean
during the constitutional debates if you read Federalist 43,
you read the original Federalist Papers, the States entered
this Union. The States created the Federal Government with an
expectation that the President, the Commander-in-Chief would
exercise authority when it came to the Commander-in-Chief
authority in defending the States.
However, that's why you have to read this all together:
Article 1, Section 10, and also, Article 4. The States have
this inherent right to defend themselves when the Federal
Government will not do its job. So, it's not an offensive or a
proactive power, so to speak. It is defensive in nature that
every State has the ability to defend itself and its citizens
from either State or non-State hostile actors.
Mr. Roy. Well, I agree, and I appreciate the comments from
the gentleman from Arizona, the Attorney General. I appreciate
that.
With that I am going to recognize the Chair of the
Judiciary Committee, the gentleman from Ohio, Mr. Jordan.
Chair Jordan. Thank you, Mr. Chair.
Mr. Webster, what if we just called a time out? What if we
just said no more? We are pace to get the 12 million. What if
we just said time out? No more migrants can come into the
country. Wouldn't that make some sense?
Mr. Webster. That would make absolute sense and would be
what Congress intended when it passed the laws we have on the
books right now that gave the President the power to stop this.
Chair Jordan. Mr. Attorney General Brnovich, would you say
the same? Would you say call a time out? It has gotten to--we
are on pace in the Biden Administration to reach 12 million,
the equivalent of the entire population of Ohio. Maybe it is
time to say time out. Three years and 10 days of this is
enough.
I would argue the way we do that in a legislative body--the
way our Constitution works is we have power of the purse. So,
we say no money can be used to process or release into the
country any migrant. How about this for Texas and for Arizona
and for New Mexico? No money can be used to take down any
border structures that those States have put up to enforce the
law. What if we just said you can't spend money to tear down
the fence you are putting up? You can't spend money to process
and release into the country new migrants coming and just say
time out. It has gotten so bad, let's just call a halt to it
now and have an election and see what the American people say.
Mr. Brnovich. Mr. Chair, obviously the States have become
very frustrated with the inability of the Federal Government to
do its job. As I have mentioned previously, Congress does have
remedies. Congress could impeach officials for failing to
protect our--
Chair Jordan. Well, they are doing that right now, yes.
Mr. Brnovich. That's what I've heard. Congratulations. I'm
glad it's finally happening. You also have the ability, I
believe, to cutoff funding, as you mentioned, to the Federal
Government to stop them from interfering with Texas' ability
to--
Chair Jordan. I am not trying to cut you off because you
agreeing with me, but I want to recognize--I told him I would
give him four minutes; I am giving him 3:20--so, I yield my
time to the gentleman from Arizona.
Mr. Biggs. I thank the Chair.
So, my extreme Marxist colleague, who is a mindless
follower of Joe Biden, raised the specter of insurrection and
lawlessness. The lawlessness that she was talking about was
January 6th. How about the lawlessness at the border every day?
Title 8 is violated every day by this administration.
Ms. Balint. Can I raise a point of order?
Mr. Biggs. The Title 8--
Mr. Roy. Just hold on the time. The gentlelady has a point
of order.
Ms. Balint. Can we ask Members of the Committee not to cast
dispersions on Members of the Committee?
Mr. Biggs. Oh, we had aspersions cast on us by your Member,
ma'am.
Mr. Roy. Yes, my observation is that extreme MAGA is used
on a daily basis by the second--
Mr. Biggs. Repeatedly.
Mr. Roy. --and so saying extreme Marxist is fair game. I
yield--have the gentleman from Arizona continue.
Mr. Biggs. Thank you. So, the lawlessness that you see is
coming across the border every day, failure by this
administration to enforce the law.
So, let's get back to this. I would just want to say one
other thing: This is relative to what we have heard from one of
our panelists. He is conflating again immigration law with
border security. Now, there is a reason that you have three
provisions in the Constitution that kind of addresses Article
1, Section 10, twice, Article 4, Section 4. One is dealing with
invasion, and that is the security and safety of the Nation, of
the sovereign States. The sovereign States that actually
created this Federal Government.
The article in Section 10 that Mr. Brnovich brought forward
with the authority under Article 1, Section 10, that a State
may defend itself when it has been actually invaded. Also, the
invasion clause, Article 1--Article--excuse me, Article 4,
Section 4. That is what we have been talking about. The import-
export clause. That is the one I want to get to. Article 1,
Section 10. A very unique understanding, but it gets at the
heart of this.
Expand please, Mr. Brnovich, in about 30 seconds your idea
of the sovereign authority that rests with a State under the
import-export clause, Article 1, Section 10.
Mr. Brnovich. Thank you, Mr. Biggs, for bringing up this
very, very important point we haven't had a chance to discuss
today.
The import-export clause provides that States do have the
ability to control what kind of goods are coming into their
States. Even if you accept the premise of what other Members of
this Committee have talked about as far as States not being
able to enforce immigration law, that's generally true, however
States can control what is coming into their States.
So, for example, Arizona, we have 10 ports of entry. I
believe in Texas there's 28 ports of entry. If the Biden
Administration wants to create an 11th, 12th, 29th, 30th port
of entry, then Congress and the Federal Government can do that.
The States at the same time have the ability to force and
channel all people, all goods, and commerce into those lawful
ports of entry. So, I do believe there's a very strong
constitutional argument putting aside some of the other
language, but even under the import-export clause that States
have the ability to force anyone coming into Texas, Arizona, or
California, any other border State, into those lawful ports of
entry.
Mr. Biggs. So, we get to the point it--also again, just we
were discussing about Article 4, Section 4, the invasion
clause--in this clause; this is actually even more explicit,
the authority rests with the sovereign State. It does not
devolve into the Federal Government.
Why would you allow the Federal Government then to say you
can't have control of import-export and you can't control
what--and determine what an invasion is when the sovereign
State--and don't forget, the Founders intended to recognize the
sovereignty of the States to govern themselves. If you are
going to turn the definition of invasion over to the Federal
Government, who is violating the invasion clause, it just
stands logic on its head. Yield back. Thank you.
Mr. Roy. I thank the gentleman from Arizona.
I assume there are no more witnesses from my colleagues on
the other side of the aisle.
So, with that, this will conclude today's hearing. We thank
the witnesses.
We don't have any more witnesses, right? OK.
That concludes today's hearing. We thank the witnesses for
appearing before the Committee today.
Without objection, all Members will have five legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
Without objection, this hearing is adjourned.
[Whereupon, at 12:04 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on the Constitution and Limited Government can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent.
aspx?EventID=116766.
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