This essay first appeared in the October 14, 2021 Epoch Times.
Critics of President Joe Biden’s non-defense of the southern border have emphasized his constitutional duty to “take Care that the Laws be faithfully executed” (U.S. Constitution, Article II, Section 3).
This is a good point, but it has some weaknesses. The duty to “take Care” is inherently discretionary, rendering it unlikely that the courts would enforce it. Almost certainly, a “take Care” lawsuit would be held not justiciable.
Some have suggested impeachment for failure to “take Care,” but this wouldn’t work, either. Remember that a linchpin of President Donald J. Trump’s successful impeachment defense was that conviction requires proof of a serious crime. Any Republican efforts to backpedal from that position would be met with public derision.
Moreover, that position is the correct one. The Constitution’s grounds for impeachment are “Treason, Bribery, or other high Crimes and [high] Misdemeanors” (Article II, Section 4). The first three are all serious crimes, and new research findings tell us that the phrase “high misdemeanors” signifies heinous crimes not meriting the death penalty (pdf). Mere neglect of duty, no matter how egregious, is not a high misdemeanor unless it meets traditional standards of criminality.
But there is another constitutional provision relevant to the Biden administration’s conduct—less noticed, but just as important. It is Article IV, Section 4:
“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 of the Executive (when the Legislature cannot be convened) against domestic Violence.”
This provision is known as the Guarantee Clause.
What the Guarantee Clause Does
The Guarantee Clause both imposes obligations and implicitly grants the federal government power to meet those obligations. Although constitutional law courses often underplay the Guarantee Clause, it is one of the Constitution’s most important provisions. It stabilizes the Union. It is the chief source of the federal power of national defense. It sometimes authorizes military action without a declaration of war: all facts lost on many constitutional writers.
The Guarantee Clause imposes three specific obligations on “The United States”—which, in this context, means the U.S. government. They are:
1. to guarantee every state a republican form of government;
2. to protect every state from invasion; and
3. when a state requests help, to protect that state against domestic violence.
Republican Form of Government
The obligation to ensure that states are “republican” enables the federal government to stabilize the Union by preventing states from slipping into monarchy or anarchy.
Many people think “republican” means excluding direct democracy in favor of wholly representative institutions. That is incorrect: It is a myth derived from a political dispute in the 1840s. Founding-era records show that a “republican form of government” is one that follows the rule of law and is ultimately responsible to the citizenry rather than to a monarch (pdf).
The “republican form of government” portion of the Guarantee Clause is not relevant to the present crisis. None of our states are monarchies or anarchies. The crisis is the Biden administration’s flagrant disregard for the rule of law.
The Guarantee Clause’s second obligation is to protect states against invasion. The Founding-era record confirms that, as the Constitution uses the term, invasion does not mean an incursion by a pandemic or by killer bees. It means a human invasion from a foreign country.
Nowadays, we usually think of an invasion as a military operation. But the Constitution sometimes uses words differently than we do. To determine the Constitution’s true meaning, you often must examine Founding-era sources. For example, scholars and Supreme Court justices commonly consult 18th century dictionaries (pdf) for guidance on how to understand the Constitution’s words and phrases.
Those dictionaries tell us that invasion frequently referred to incursions other than military attacks. Thus, Nathan Bailey’s 1783 English dictionary described it as “a descent upon a country, an [sic] usurpation, or encroachment.” (Founding-era dictionaries usually separated alternative definitions by punctuation alone, rather than by numbers.) Bailey defined usurpation as “a taking wrongfully to one’s own use that which belongs to another.” No actual violence was necessary.
“Usurpation” and “encroachment” certainly describe what illegal immigrants are doing at the border.
Here is the entry for invasion in Francis Allen’s 1765 dictionary: “the entrance or attack of an enemy on the possessions or dominions of another; an encroachment, or unlawful attack of the rights of another.” (Italics added.) The latter two definitions clearly describe what is happening at the border today.
Similarly, in Frederick Barlow’s compilation (1772–73), to invade was “to enter into a country in a warlike manner. To attack; to assail or assault. To make the first attack. To seize on like an enemy. To encroach.” (Italics added.)
Whether or not swarms of illegal immigrants are actually attacking, assailing, or assaulting, they certainly are encroaching.
In defining invade and invasion, some 18th century lexicographers added the adjective “hostile.” Thomas Sheridan’s 1789 dictionary defined invasion as “Hostile entrance upon the rights or possessions of another, hostile encroachment.” The compilations by John Ash (1775) and William Perry (1789) also inserted “hostile,” as did the Samuel Johnson’s much-celebrated dictionary (multiple editions; first published in 1756).
However, in 18th century usage, hostile did not necessarily imply a military-style attack. It often meant “adverse to” or “without permission.” Johnson, for instance, gave three definitions of hostile: (1) adverse, (2) opposite, and (3) suitable to an enemy. Only the last sounds anything like a military operation. The entry in Ash’s dictionary was similar.
This non-military use survives in the law of adverse possession of land. When the courts say an adverse possessor’s use of land must be “hostile,” they don’t mean the possessor must march in with ensigns spread. They mean only that he must take possession without the permission of the title owner.
Here’s the point: The current situation at the southern border—both massive and apparently coordinated—is an “invasion” as the Constitution uses the term. Biden’s failure to stop it is a violation of the Guarantee Clause.
The third obligation imposed by the Guarantee Clause is to protect the states against domestic violence when formally requested to do so. Although illegal immigrants have committed a fair amount of violence, none of the state legislatures has demanded protection under this portion of the Guarantee Clause. If a state does so, that will trigger another presidential obligation.
However, in view of the administration’s flagrant authoritarianism, states may well be wary about asking for federal troops to come into their territory.
Are These Obligations Enforceable?
The Supreme Court has held that issues pertaining to the republican form of government are for congressional determination, not for the judiciary. Such cases are non-justiciable. However, for the other two obligations, the case for court review is much better. If a state sues the federal government for failure to defend it against invasion or domestic violence, then there are two adverse parties—state and federal government—each strongly motivated to present the judges with the information they need to decide the case. This is an important criterion for justiciability.
Even if the courts refuse jurisdiction, a state making a formal charge thereby presents its case to the court of public opinion: “We are being invaded. We have asked for help. The president is obligated to provide it but refuses to do so. Hold him accountable.”
All the states on the southern border should make those formal charges. Loud and clear.