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 (CFRA), 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 Ken Cuccinelli, the former senior official performing the duties of deputy DHS director and who now serves as a senior fellow for immigration and homeland security at CFRA. Cuccinelli was also copied on the email. 

The invasion-declaration idea was also promoted by Cuccinelli and Vought at a news conference attended by Republican state lawmakers in Phoenix in January, and the pair have reportedly 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 says 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. Abbott, who has sent thousands of National Guard and state troopers to the Mexico border in Texas, admitted at a roundtable in April that he was “looking into” it.

Vought’s email was obtained in response to an open records request for communications between the Arizona governor’s office and CFRA, which American Oversight submitted in light of reports of Cuccinelli’s proposals.

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.

Related Emails Between CFRA and Arizona Rep. Jake Hoffman

In the spring of 2022, American Oversight obtained communications between CFRA Director of Communications Rachel Semmel — who previously worked under Vought at OMB — and Arizona Rep. Jake Hoffman, who led the January news conference attended by Cuccinelli and Vought. Hoffman, who drew headlines for having asked former Vice President Mike Pence to reject Arizona’s official 2020 election results, had written a letter in October 2021 asking Brnovich for a legal opinion on addressing the “invasion” at the border. 

Semmel and Hoffman first connected on Dec. 13, 2021: “I’ve heard lots about you from my time in AZ politics and know you’ve connected with Cuccinelli,” Semmel wrote. “He told me to work with you directly on getting logistics rolling on a possible border press conference with you all.” 

On Jan. 7, Hoffman wrote, “Let’s make sure to keep this all framed as official communications (non-campaign related),” referring to a press release about the event that he planned to send from his office.