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  • Jonathan Emord

States Must Sue Biden and Invoke the Guarantee Clause to Secure the Border

On January 5, President Biden announced an unprecedented revision to immigration law that will enormously increase the number of immigrants entering the United States, granting them temporary legal status without assurance of compliance with existing immigration laws. Under Biden’s executive action, some 30,000 migrants per month from Cuba, Haiti, Nicaragua, and Venezuela will enter the United States with work permits through a new application process available in their own countries. Congress has not enacted any law to permit this change or to otherwise authorize executive branch procedures for new mass monthly immigration (exploding the number of those with work permits by 360,000 new immigrants a year). To counter this unlawful presidential assumption of congressional power, states victimized need to sue to enjoin the violation of the Constitution’s separation of powers doctrine, but they also need to take an additional, novel step. They should invoke the Guarantee Clause of the Constitution and demand that the federal government honor its guarantee to quell insurrection and violence in the states by enforcing existing immigration law requirements to secure the border.

Biden proceeds by executive order without congressional authorization in an all too familiar pattern of authoritarian governance, in gross violation of the Constitution’s separation of powers doctrine. See the White House press release. Presumably the 30,000 immigrants per month given authorization to enter will fly directly into the United States from their home countries avoiding extortion payments to cartels and the spectacle of border crossings. That method will also mask what will be a five-fold increase in immigrant entries to the United States.

No adequate enforcement infrastructure exists to arrest and prosecute those who overstay their two-year work permits and, so, we can predict many if not most will overstay, thus making the new Biden program a de facto form of amnesty, enabling those illegally overstaying to remain indefinitely. Consequently, Biden’s new gross expansion of work permits is a devious shell game.

The new migrants availing themselves of this unprecedented expansion of the work permit program are required to have a financial supporter in the United States and pass a background check, but the sheer volume of permit applications anticipated (30,000 a month) makes it highly unlikely that applicant responses will undergo critical examination and verification, particularly given the absence of congressional appropriations necessary to provide needed staffing. It will likely be, therefore, that this administration will usher into the interior of the United States tens of thousands of immigrants monthly, migrants without adequate background vetting. Why should we suspect otherwise from an administration that is presently allowing over 8,000 illegal immigrants to enter the country per day with no vetting at all? Among those entering by either means will be terrorists, individuals with no allegiance to the United States, and other assorted criminals.

President Biden’s fundamental modification of U.S. immigration law, authorizing a new method of mass migration and new procedures to enable that migration, invites legal challenge because it so plainly violates the separation of powers doctrine. The states adversely affected should promptly sue the federal government for declaratory and injunctive relief. But more pressure needs to be applied. Because the numbers now entering through this program atop existing illegal asylum entries will likely reach all-time highs in the range of 270,000 to 340,000 per month, some states will literally witness entire communities and cities be overrun, welfare demands exceed resources, social services taxed beyond functional limits, hospitals overrun, police and ambulance services unable to keep up with demand, and property crimes and violent crimes skyrocketing beyond already high levels.

In short, lawlessness and anarchy will become more commonplace across the nation. That means the republican forms of government in the states, which rest fundamentally on their fulfillment of the primary duty to protect the lives, liberties, and properties of their citizens, will succumb to an inability to combat wanton lawlessness. Over the last two years, illegal entries into the United States have devastated the border states, causing citizens’ rights to life, liberty and property to be deprived without adequate legal redress, thus sacrificing the rule of law in states like California, Arizona, and Texas that cannot handle the influx of aliens. That anarchistic chaos in border states will be exacerbated and become more prevalent in the interior due to the Biden Administration’s new mass immigration policy.

President Biden’s abdication of his constitutional duty to ensure that the immigration laws are faithfully executed and to safeguard our borders threatens the legal status and security of states, cities, and localities, and not just in border areas. In addition to challenging the constitutionality of the new executive action under the separation of powers doctrine, it is high time the states invoked Article IV, Section 4 of the Constitution, commanding the federal government to honor its duty to stem insurrection and violence in the states as required by the Guarantee Clause.

The Founding Fathers adopted the Guarantee Clause to enable state legislatures to compel federal action to stem insurrection and domestic violence. Insurrection, a violent uprising against the law or government, is evident across the land due to the unremitting deluge of illegals, leaving in their wake devastation in the form of criminal trespass, looting of private property, rape, murder, burglary, drug trafficking, sex trafficking, and gang violence. Whole towns have been overwhelmed, businesses destroyed, and citizens accosted. Under Article IV, Section 4, the government of the United States is obliged to “guarantee” each state a “Republican Form of Government” and to protect each state against “Invasion” and “domestic Violence.” That section reads: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or the Executive (when the Legislature cannot be convened) against domestic Violence.”

The President’s refusal to defend America’s borders and enforce existing immigration laws has resulted in insurrection and domestic violence, not only begetting lawlessness but also disabling the states’ ability to fulfill their irreducible duty to defend citizens’ lives, liberties, and properties. The state legislatures should pass resolutions declaring the existence of the invasion, documenting the violence and lawlessness, and invoking the Guarantee Clause, insisting under Article IV, Section 4 that the President dispatch the United States military to secure the borders against illegal entry and implement fully the border protective provisions of existing immigration law. When, predictably, the President refuses, the states may then additionally sue the President under Article IV, Section 4, asking the Court to issue an affirmative injunction or mandamus compelling the President to implement border protections required by existing immigration laws.

This article was written on Jan 7, 2023, and published on


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