III 

118TH CONGRESS 

2D SESSION S. RES. 543 

To express the sense of the Senate regarding the constitutional right of 

State Governors to repel the dangerous ongoing invasion across the 

United States southern border. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 6, 2024 

Mr. MARSHALL submitted the following resolution; which was referred to the 

Committee on the Judiciary 

RESOLUTION 

To express the sense of the Senate regarding the constitutional right of State Governors to repel the dangerous 

ongoing invasion across the United States southern border. 

Whereas, during a 2019 Democratic presidential primary debate, President Biden called for ‘‘all those people seeking 

asylum’’ to ‘‘immediately surge to the border’’; 

Whereas, during a 2019 Democratic presidential primary debate, President Biden raised his hand when candidates 

were asked if their health plans will provide coverage for 

illegal immigrants; 

Whereas, during a 2020 Democratic presidential primary debate, President Biden pledged support for ‘‘sanctuary cities’’ when he stated that illegal immigrants arrested by 


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local police should not be turned over to Federal immigration authorities; 

Whereas, on January 20, 2021, one of President Biden’s first 

actions as President was sending proposed legislation, the 

U.S. Citizenship Act, to Congress, which would provide a 

path to citizenship for an estimated 10,000,000 to 

12,000,000 illegal immigrants who are currently residing 

in the United States; 

Whereas, on January 20, 2021, President Biden issued a 

‘‘Proclamation on the Termination Of Emergency With 

Respect To The Southern Border Of The United States 

And Redirection Of Funds Diverted To Border Wall Construction’’, which halted construction of physical barriers 

along the international border between the United States 

and Mexico; 

Whereas President Biden later terminated existing border 

wall construction contracts and failed to obligate more 

than $1,000,000,000 that Congress had lawfully appropriated for border wall construction; 

Whereas, on January 20, 2021, President Biden halted enrollments in the Migrant Protection Protocols policy, 

which is commonly known as the ‘‘Remain in Mexico’’ 

program; 

Whereas, on February 6, 2021, Secretary of State Antony 

Blinken suspended and terminated the asylum cooperative agreements with the Governments of El Salvador, of 

Guatemala, and of Honduras; 

Whereas, in March 2022, the Department of Homeland Security began implementing the interim final rule titled 

‘‘Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT ProVerDate Sep 11 2014 00:28 Feb 07, 2024 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 E:\BILLS\SR543.IS SR543

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tection Claims by Asylum Officers’’ which authorizes 

U.S. Citizenship and Immigration Services to consider 

the asylum applications of individuals subject to expedited removal and violates the law enacted by Congress 

that requires asylum seekers to offer evidence to persuade a judge in an immigration court; 

Whereas, in August 2022, the Department of Homeland Security terminated the Migrant Protection Protocols (commonly known as the ‘‘Remain in Mexico’’ policy), which 

required aliens with pending asylum claims to wait in 

Mexico; 

Whereas, during fiscal year 2023, U.S. Immigration and Customs Enforcement executed 142,580 removals, which is 

significantly lower than the 226,000 to 410,000 removals 

that occurred every fiscal year between fiscal years 2008 

through 2020; 

Whereas, during fiscal year 2021, U.S. Immigration and Customs Enforcement— 

(1) arrested 48 percent fewer convicted criminals 

than had been arrested during the prior fiscal year; 

(2) deported 63 percent fewer criminals than had 

been deported in the prior fiscal year; and 

(3) issued 56 percent fewer ‘‘detainer requests’’ to 

local authorities than had been issued in the prior fiscal 

year; 

Whereas, during fiscal year 2023, U.S. Immigration and Customs Enforcement arrested 74,000 aliens with pending 

charges or convictions, which is fewer than the more than 

138,000 arrests of such aliens during fiscal year 2018; 

Whereas, during fiscal year 2023, U.S. Customs and Border 

Protection made more than 2,400,000 apprehensions of 


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illegal immigrants along the international border between 

the United States and Mexico, which is the highest level 

ever recorded; 

Whereas, on April 1, 2022, President Biden announced the 

termination of a public health policy used to expel potentially infected illegal immigrants during the COVID–19 

pandemic (commonly known as the ‘‘title 42 policy’’); 

Whereas, on September 30, 2021, the Secretary of Homeland 

Security, Alejandro Mayorkas, issued a memorandum titled ‘‘Guidelines for the Enforcement of Civil Immigration Law’’, which stated that an alien’s illegal status in 

the United States should not be the sole basis of an enforcement action and prioritized for apprehension and removal aliens who are a threat to national security, public 

safety, or border security; 

Whereas, on October 12, 2021, Secretary Mayorkas issued a 

memorandum titled ‘‘Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the 

Individual’’, which included Department-wide guidance to 

cease mass worksite operations, among other instructions; 

Whereas, on October 27, 2021, Secretary Mayorkas issued a 

memorandum titled ‘‘Guidelines for Enforcement Actions 

in or Near Protected Areas’’, which listed numerous protected areas where the enforcement of Federal immigration law should not occur; 

Whereas, in December 2023, U.S. Customs and Border Protection encountered 302,034 illegal immigrants along the 

international border between the United States and MexVerDate Sep 11 2014 00:28 Feb 07, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6300 E:\BILLS\SR543.IS SR543

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ico, which is the highest number of such encounters ever 

recorded in a single month; 

Whereas President Biden’s fiscal year 2023 budget request 

aims to shift the Department of Homeland Security’s 

border management away from enforcement and toward 

‘‘effectively managing irregular migration along the 

Southwest border’’; 

Whereas, in November 2022, Texas Governor Greg Abbott— 

(1) declared a state of invasion at the southern border; and 

(2) increased security at the border to protect the 

state of Texas by invoking— 

(A) section 10 of article I of the Constitution 

of the United States; and 

(B) the invasion clauses in the Texas Constitution; 

Whereas, in March 2023, at a hearing of the Committee on 

Homeland Security of the House of Representatives, U.S. 

Border Patrol Chief Raul Ortiz told lawmakers that the 

Department of Homeland Security did not have operational control of the border; 

Whereas, in March 2023, at a hearing of the Committee on 

the Judiciary of the Senate, Secretary of Homeland Security Alejandro Mayorkas stated that he does not use the 

statutory definition of operational control under section 

2(b) of the Secure Fence Act of 2006 (Public Law 109– 

367; 8 U.S.C. 1701 note) when asked if the Department 

of Homeland Security had operational control of the border; 

Whereas, on January 6, 2023, the Biden Administration 

abused its parole authority under section 212(d)(5) of 


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the Immigration Nationality Act (8 U.S.C. 1182(d)(5)) 

to create a new parole program for nationals of Cuba, 

Haiti, Nicaragua, and Venezuela; 

Whereas, on April 27, 2023, the Biden Administration further abused its parole authority by creating a new family 

reunification parole process, which grants parole to entire 

categories of aliens rather than granting parole on a 

case-by-case basis, as required under such section 

212(d)(5); 

Whereas the Biden Administration created a parole with conditions policy authorizing U.S. Border Patrol agents to 

release aliens through parole before they are given a Notice to Appear or entered into removal proceedings; 

Whereas the Biden Administration has expanded the use of 

the CBP One app, allowing tens of thousands of aliens 

to enter the United States unlawfully to hide the mass 

immigration surge following the termination of the order 

of suspension issued by the Director of the Centers for 

Disease Control and Prevention under section 362 of the 

Public Health Service Act (42 U.S.C. 265) as a result of 

the public health emergency relating to the COVID–19 

pandemic (commonly known as the ‘‘title 42 order’’); 

Whereas drug cartels are receiving an estimated 

$13,000,000,000 each year from their human smuggling 

operations across the southern border of the United 

States, which represents an enormous increase from the 

estimated $500,000,000 the drug cartels received in 2018 

from such operations; 

Whereas, during fiscal year 2023, according to the non-detained docket, an estimated 6,200,000 illegal aliens were 


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at large in the United States, including more than 

400,000 known criminal aliens; 

Whereas the estimated fiscal burden of illegal immigration on 

taxpayers in fiscal year 2023 is estimated to be 

$150,700,000,000, which is a massive increase from the 

estimated fiscal burden of $116,000,000,000 during fiscal year 2017; 

Whereas tax payments from illegal aliens are equal to approximately 1⁄6 of the costs incurred by government entities in the United States on their behalf; 

Whereas, during fiscal year 2022, total Federal justice enforcement expenditures as a result of illegal immigration 

were $25,100,000,000 and total Federal welfare program 

expenditures for illegal aliens were $11,600,000,000; 

Whereas, in April 2023, the Biden Administration proposed 

a plan to expand healthcare access for aliens granted deferred action pursuant to the final rule submitted by the 

Department of Homeland Security titled ‘‘Deferred Action for Childhood Arrivals’’ (87 Fed. Reg. 53152 (August 30, 2022)), further encouraging illegal aliens to 

enter the United States; 

Whereas, on May 3, 2023, the Office of the Inspector General of the Department of Homeland Security issued a 

report titled ‘‘Intensifying Conditions at the Southwest 

Border Are Negatively Impacting CBP and ICE Employees’ Health and Morale’’; 

Whereas, in June 2023, the Committee on Homeland Security of the House of Representatives opened an investigation into Secretary of Homeland Security Mayorkas for 

dereliction of duty; 


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Whereas, in June 2023, an estimated 16,800,000 illegal 

aliens resided in the United States, which represents an 

increase of an estimated 16 percent during the first 2 

years of the Biden presidency; 

Whereas, on June 30, 2023, U.S. Customs and Border Protection announced the expansion of available CBP One 

appointments to 1,450 per day; 

Whereas U.S. Customs and Border Protection has apprehended illegal immigrants from Mexico, Guatemala, El 

Salvador, Nicaragua, Cuba, Haiti, Brazil, other Central 

and Latin American nations, Turkey, India, Russia, and 

other nations outside of the Western Hemisphere; 

Whereas U.S. Customs and Border Protection has apprehended 169 people during fiscal year 2023 along the 

international border between the United States and Mexico who are listed on the Federal Bureau of Investigations’ terrorist screening database; 

Whereas U.S. Customs and Border Protection arrested more 

than 15,627 illegal aliens during fiscal year 2023 who 

have been convicted of 1 or more crimes in the United 

States or abroad, including— 

(1) 284 convicted sexual criminals; 

(2) 29 who were convicted of homicide or manslaughter; 

(3) 307 who were convicted of illegal weapons possession, transport, or trafficking; 

(4) 864 who were convicted of burglary, robbery, larceny, theft, or fraud; and 

(5) 1,254 who were convicted of assault, battery, or 

domestic violence; 


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Whereas, during fiscal year 2023, U.S. Customs and Border 

Protection seized— 

(1) 27,000 pounds of fentanyl; 

(2) 1,500 pounds of heroin; 

(3) 1,000 pounds of methamphetamine; 

(4) 81,100 pounds of cocaine; and 

(5) 7,800 pounds of ketamine; 

Whereas, provisional data from the National Center for 

Health Statistics of the Centers for Disease Control and 

Prevention estimates that there were 107,622 drug overdose deaths in the United States during 2021, an increase of nearly 15 percent from the estimated 93,655 

deaths in 2020, with overdose deaths involving opioids increasing from an estimated 70,029 in 2020 to an estimated 80,816 in 2021, and overdose deaths from synthetic opioids (primarily fentanyl), psychostimulants 

(such as methamphetamine), and cocaine also increasing 

during 2021; 

Whereas clause 1 of section 10 of article I of the United 

States Constitution states, in part, ‘‘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.’’; 

Whereas section 4 of article IV of the United States Constitution states, in part, ‘‘The United States shall guarantee to every State in this Union a Republican Form of 

Government, and shall protect each of them against Invasion’’; 

Whereas, in the context of known security concerns due to a 

lack of proper vetting processes and systems, and in conjunction with how the mass unlawful movement of people 

across the border of the United States directly empowers 


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and enriches cartels and transnational gangs, the totality 

of such activity constitutes an invasion; 

Whereas, on October 26, 2021, Arizona State Representative 

Jake Hoffman sent a letter to Arizona Attorney General 

Mark Brnovich requesting a formal legal opinion determining whether President Biden has violated his obligations to protect Arizona from invasion under section 4 of 

article IV of the United States Constitution; and 

Whereas, on February 7, 2022, Arizona Attorney General 

Mark Brnovich issued a formal legal opinion, which 

states, in part— 

(1) ‘‘The on-the-ground violence and lawlessness at 

Arizona’s border caused by cartels and gangs is extensive, well-documented, and persistent. It can satisfy the 

definition of ‘actually invaded’ and ‘invasion’ under the 

U.S. Constitution.’’; and 

(2) ‘‘Arizona retains the independent authority 

under the State Self-Defense Clause to defend itself when 

actually invaded.’’: Now, therefore, be it 

1 Resolved, That the Senate finds that— 

2 (1) President Biden’s dereliction of duty and 

3 failure to take care that the laws be faithfully exe4 cuted at our southern border has directly put the 

5 citizens of all 50 States in danger and has resulted 

6 in loss of life; 

7 (2) the violent activity and smuggling of drugs, 

8 humans, guns, and other illicit goods carried out by 

9 drug cartels and transnational criminal organiza10 tions, and the crossing of the international border 


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1 between legal ports of entry by significant numbers 

2 of individuals contrary to the laws of the United 

3 States, meet the definitions of— 

4 (A) ‘‘actually invaded’’ under clause 3 of 

5 section 10 of article I of the United States Con6 stitution; and 

7 (B) ‘‘invasion’’ under section 4 of article 

8 IV of the United States Constitution; and 

9 (3) Governors of all 50 States possess the au10 thority and power as Commander-in-Chief of their 

11 respective States to repel the invasion described in 

12 paragraph (2). 

Æ 


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