Non-state actors can indeed be invaders if they are sufficiently organized and directly challenging a sovereign’s control of its territory.
For years now, border and immigration hawks have used the term “invasion” to describe the stream, and sometimes flood, of illegal immigrants across the Mexican border into the United States. I have long considered this to be hysterical and counterproductive rhetoric. Individuals, even when aggregated in large numbers, do not amount to an invasion. The same is true even when criminal gangs are involved. There are better ways to describe the erosion of our national sovereignty created by porous borders and spotty and indifferent enforcement of our laws.
Non-state actors, however, can indeed be invaders if they are sufficiently organized and directly challenging a sovereign’s control of its territory. The United States treated Pancho Villa as such an invader after he attacked New Mexico in 1916, notwithstanding the fact that Villa’s faction had not been formally recognized during the Mexican revolution of the day as the government of Mexico. Filibusterers who tried, from American territory, to conquer Cuba in 1851, Baja California in 1853, Nicaragua in 1855, and Canada in 1866 were undeniably invaders notwithstanding their non-state-actor status.
The Mexican drug cartels have, by this stage, reached a level of quasi-sovereign control over more than a third of Mexico’s territory. That raises the legitimate question of whether their operations across the border into the United States can legitimately be considered an invasion. This is not merely a matter of political rhetoric, but constitutional law. The Compact Clause, Article I, Section 10, Clause 3 of the Constitution, states: “No State shall, without the consent of Congress . . . engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” Joshua Treviño of the Texas Public Policy Foundation argues in a research paper that the historical meaning of “invaded” may be satisfied by current cartel activity, triggering the constitutional power of Texas to act in its own defense — up to and including acts that might be construed as waging war. But that standard is not lightly met:
The meaning of invasion under the U.S. Constitution involves two core concepts: entry and enmity. That is, an invasion must involve both physical ingress into a state (entry) and the intent by the invader to act as an enemy to that state (enmity). Notably, entrants need not occupy territory or attack with or against military forces to meet the threshold of enmity. While invasion is most often and aptly used to describe the hostile military action of one nation against another and thereby typically excludes the actions of rogue individuals and roving gangs, it can also describe, and has been authoritatively used in American history to describe, the actions of non-state actors like “pirates and barbarians” (Hamilton et al., 1788/2014). The crucial qualification is not the size or equipment or even sovereignty of the invading force but its willingness and capacity to commit hostile acts against the state or its people. It is worth pointing out that entering the territory of a state for the sake of engaging in unlawful trade, committing acts of violence against rival gangs, or engaging in criminal activity on a scale that falls within the bounds of what the trespassed state’s police powers can ordinarily handle, are not acts that fall within the scope of enmity as constitutionally defined. Mere unlawful entry, in other words, does not qualify as enmity. And only entry plus enmity, as we have said, constitutes invasion. . . .
Recent and disturbing instances of cartel members showing violent contempt for U.S. sovereignty along the U.S.–Mexico border certainly strengthen the case for that analogy, as do rising fentanyl deaths. . . . But we must underline that just as the unlawful entry of pirates into a jurisdiction was by itself insufficient to constitute an invasion during the Founding era, so too the unlawful entry of criminal groups into a jurisdiction is by itself insufficient to constitute an invasion at present.
Treviño also stresses that any steps taken by Texas would be merely a stopgap, because the ultimate authority to determine the existence of war resides with Congress:
The purpose of the Compact Clause is not to carve out a domain in which states hold the ultimate authority on whether the United States (or part of it) shall go to war, but rather to provide authority for states to exercise war powers during emergencies, pending an appeal to Congress for its decision and aid. The clause’s purpose, in other words, cannot be to alter the principle that Congress decides matters of peace and war, but rather to cover situations in which Congress cannot make a decision in time, such as in the case of an invasion that is already occurring. For there is no reason to believe that the Framers introduced the Compact Clause in order to depart from their foundational principle that the United States must speak with one voice on matters of peace and war. Had they done so, they would have given every state the unreviewable power, as Federalist 42 puts it, “to embroil the Confederacy with foreign nations” (Hamilton, 1788/2014) and would have thereby critically undermined the very unity the federal constitution was designed to ensure. It follows, then, that once the federal government makes a decision regarding the situation of a particular state, that decision is final. It is therefore incumbent on states that believe they have been invaded by hostile bands to seek immediate aid and direction from Congress, which retains the ultimate legal authority in matters relating to war.
TPPF’s Melissa Ford offers a video summary of the argument:
For readers interested in the challenges presented by our southern neighbor, I must recommend TPPF’s Mexico-centric podcast The Hard Country, co-hosted by Treviño and Ford, which typically opens with an arresting reading from Mexico’s fraught history. Here’s the first episode:
