Three months before Arizona Attorney General Mark Brnovich penned a February legal opinion declaring illegal immigration an “invasion” and calling on the state to authorize military force to address an influx of migrants at the Southern border, a pair of former senior Trump administration officials had pitched that idea to the office of Gov. Doug Ducey. 

The governor should “activate and deploy all [National Guard] units” to “detain illegal immigrants,” Russ Vought, the former director of the Office of Management and Budget, wrote in a Nov. 11, 2021, email to both Ducey’s chief of staff and his deputy director of legislative affairs, according to documents obtained by American Oversight. 

In his message, Vought referenced a policy brief from the Center for Renewing America, the conservative organization he founded last year, on how border states could issue declarations of invasion to address illegal immigration. The proposal was written by former acting Deputy Secretary of Homeland Security Ken Cuccinelli, who was also copied on the email. 

The idea was promoted by Cuccinelli and Vought at a news conference attended by Republican state lawmakers in Phoenix in January, and the pair have worked on persuading Ducey and Texas Gov. Greg Abbott to embrace the theory for the past two years. Since at least 2007, Cuccinelli has argued that illegal immigration constitutes a foreign invasion. 

In his November email, Vought said that states should “cite state war powers and activate and deploy all units to the southern border with specific orders to the commanding officers of the National Guard to detain and return illegal immigrants back across the border, turn back illegal immigrants to Mexico at the border, and defend against Cartel operatives.” 

“Ken and I would welcome getting on the phone with your team or traveling to AZ to discuss with the governor,” Vought added. He also wrote, “We do not believe the Biden Administration is going to change their policies, and that it’s time to invoke authorities that have fallen into disuse.”

The idea relies on a dubious interpretation of the Constitution, which states that individual states may not go to war on their own “unless actually invaded.” Under the theory promoted by Cuccinelli and Vought, by declaring immigrants crossing the border to be an invasion, states can use military resources for border security. Legal scholars have questioned the credibility of this argument and suggested that its purpose is to stoke anti-immigrant sentiment. While Ducey sent about 150 Arizona National Guard troops to the border last year for a “border security mission” to support law enforcement, he has not publicly embraced the invasion rationale for deploying this type of military force.

Cuccinelli serves as a senior fellow for immigration and homeland security at the Center for Renewing America (CFRA), which lists secure borders, election integrity, and critical race theory among its issue areas. Vought’s email was obtained in response to an open records request that American Oversight submitted in light of reports of Cuccinelli’s proposals, which sought communications between the Arizona governor and CFRA.

American Oversight is investigating the influence of right-wing groups and former Trump officials on border policies. We have filed requests to Texas seeking communications between the state government and CFRA, and obtained records related to the costs of running Operation Lone Star, Gov. Abbott’s initiative to deploy troops at the border. Learn more about American Oversight’s immigration work here.