[Congressional Record Volume 168, Number 130 (Wednesday, August 3, 2022)]
[Senate]
[Pages S3902-S3903]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 UNANIMOUS CONSENT REQUEST--S. RES. 741

  Mr. MARSHALL. Mr. President, I ask unanimous consent the Senate 
proceed to the immediate consideration of S. Res. 741, which is at the 
desk. I further ask that the resolution be agreed to, the preamble be 
agreed to, and that the motions to reconsider be considered made and 
laid upon the table with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I have read and reread the Senator from 
Kansas's resolution. As best I can determine, it is a declaration of 
war. For that reason, it should be taken very seriously. He says, in 
the earliest stages of the preamble, to express the sense of the Senate 
regarding the constitutional right of State Governors to repel the 
dangerous ongoing invasion at the U.S. southern border.
  The operative language at the end of his resolution on this 
decoration of war relates to a provision in the Constitution which is 
rarely quoted. It is section 10 of article I. I would like to read it 
into the record. 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.

  I am trying to understand the thinking of the Senator from Kansas, 
but here is the best I could come up with. He says that what is 
happening at the southern border with our immigration issues is, in his 
words, ``actual invasion of the United States.'' And then goes on to 
say:

       Governors of all 50 States possess the authority and power 
     as Commander in Chief of their respective States to repel the 
     invasion described in paragraph 2.

  So as best I can determine, the Senator from Kansas is suggesting 
that each Governor has the power to initiate military action. It 
doesn't say who the enemy will be or who the target will be. But 
according to this provision in the Constitution, these Governors can 
enter into compacts with other States for this military action or with 
a foreign power.
  I don't know if the Senator from Kansas has thought this through, 
this idea that the State of Kansas would team up with the State of 
Arizona and declare war on Nicaragua. Is that what he is thinking 
because Nicaraguans are presenting themselves to the border? I would 
suggest that I have never seen a declaration of war that calls on the 
States to take such action, and the only time--the only precedent in 
our history was a sad one that involved the Civil War in the United 
States.
  I don't know if the Senator is anticipating similar State action--
State by State or combination of States--attacking a foreign power. For 
that reason and many others, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Kansas.
  Mr. MARSHALL. Mr. President, I rise to ask passage by unanimous 
consent, my resolution to express the sense of the Senate that the 
unprecedented crisis at the southern border constitutes an invasion of 
the United States of America and that it is the constitutional right of 
State Governors to repel the dangerous ongoing invasion across the 
southern border.
  I encourage my colleagues to support this resolution because the 
Federal Government has failed--intentionally or unintentionally--to 
uphold its obligations to protect the States from invasion under 
article 4, section 4 of the U.S. Constitution.
  During his campaign to become President, Joe Biden made it clear to 
the entire world that if he became President, America would be open--
not open for business but that our southern border would be open, wide 
open, for anyone and everyone to violate our Nation's immigration laws 
and to take advantage of America's generosity. Yes, it would be wide 
open for drug smugglers, convicted murderers, domestic abusers, and sex 
offenders, open for terror suspects.
  In 2019, Joe Biden called for ``all those people seeking asylum'' to 
immediately surge to the border. He pledged free healthcare for illegal 
immigrants and pledged support for sanctuary cities. One of his first 
actions as President was ending proposed legislation to Congress that 
would provide a path to citizenship for 10 to 12 million illegal aliens 
residing in the United States.
  On his first day in office, he halted construction of President 
Trump's border wall and halted the ``Remain in Mexico'' program.
  This open border--opened by Joe Biden--has resulted in an 
unprecedented, unrelenting massive wave of illegal aliens entering our 
country.
  Last year, Border Patrol made more than 1.7 million arrests of 
illegal immigrants along the southern border, which is the highest 
level ever recorded, and is on pace to arrest more than 2 million 
illegal immigrants along our border during this fiscal year.
  And now that Joe Biden is prepared to end the title 42 policy that 
enabled

[[Page S3903]]

us to expel many of those crossing the border back into Mexico, the 
vast majority of those violating our country's immigration laws will be 
released into the interior of our Nation where Democrats will insist 
they remain for the rest of their lives.
  Last year, the number of drug overdose deaths in the United States 
topped 100,000--fentanyl being the cause of two-thirds of them. In 
fact, fentanyl is now the No. 1 cause of death of Americans, ages 18 to 
45.
  Last year, Border Patrol seized at the southern border 11,000 pounds 
of fentanyl, 5,400 pounds of heroin, 191,000 pounds of meth, 97,000 
pounds of cocaine, and 10,000 pounds of ketamine--many, many, many 
multiples of the amounts needed to kill every man, woman, and child in 
the United States.
  Now, if you speak to Border Patrol agents trying to deal with the 
crisis, they will tell you the Biden administration has completely 
forbidden them to enforce immigration law. They have been made ushers 
and nursemaids for illegal immigration.
  This invasion is wreaking havoc on communities all across our 
country, and it simply cannot go on any longer. It is long past time 
for States to protect their interests because Joe Biden has made it 
clear the Federal Government will not.
  President Biden's dereliction of duty and failure to take care that 
the laws be faithfully executed at our southern border has directly put 
the citizens of all 50 States in danger and has resulted in loss of 
life.
  Let me be crystal clear. The violent activity and smuggling of drugs, 
humans, guns, and other illicit goods carried out by drug cartels and 
transnational criminal organizations meet the definitions of ``actually 
invaded'' under clause 3 of section 10 of article I of the U.S. 
Constitution; and ``invasion'' under section 4 of article IV of the 
U.S. Constitution; and Governors of all 50 States possess the authority 
and power as commander in chief of their respective States to repel the 
invasion described in paragraph 2.
  I encourage the passage of this resolution to stand in solidarity 
with the Governors of these United States who must take matters in 
their own hands to protect their citizens against this invasion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.

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