(WATCH) Border Invasion

More than a year into the Biden presidency, the administration has taken no public measures to stop illegal immigration, which reached the highest point in American history on his watch.

1.9 million illegal border crossers were intercepted or turned themselves in last year. That doesn’t count all the ones who got away. Now, some argue states have the power to deport people without the feds by declaring an invasion. One of those trying to convince state officials to use that authority is Ken Cuccinelli, Deputy Secretary of Homeland Security under President Trump.

Cuccinelli: So under the Constitution, the states can repel an invasion without federal permission. This not immigration law.

Sharyl: —You’re talking about pulling guns and fighting?

Cuccinelli: Well, this isn’t tanks and planes. It is using their war power, but they don’t need the tanks and planes. This is literally just stopping people, in the same way the Department of Homeland Security stops them in the desert, but instead of catching and releasing them, as the federal government does under their immigration agencies today, the states can turn them right back around into Mexico.

Sharyl: And that power exists, you think, or it can be argued that that power is granted to the states in the Constitution?

Cuccinelli: It’s always been there. The states preserved it. They weren’t granted it, because the states created the federal government. So they kept this power to themselves to defend themselves. This isn’t something that wasn’t thought about by the Founders. They incorporated it in. They were very explicit that it doesn’t just cover nation states — that it can cover any sort of hostile band or encroachment. And that’s what we see going on, on a scale we’ve never seen before on our southern border.

Sharyl: You’re part of an effort to try to convince power brokers in these border states to grab and take the powers you say they have within their grasp. What exactly could they do? Let’s say a state says, “Yes, we want to do this.”

Cuccinelli: It would be State personnel doing almost exactly what we were doing in DHS under the public health authority, except they would be doing it under their Constitutional authority to defend themselves. You don’t bring them into facilities. It probably is, you stop a group in the desert, you fingerprint everybody, you take their picture, and you literally drive them back to the border, give them food and water, tell them to go home.

Sharyl: Does this require the governor, or some other authority of a state, to make some kind of declaration and say we’re going to do this?

Cuccinelli: This authority is under the commander in chief of every state, and the governor of every state is also the commander in chief, and it is from that authority. So the governor has the sole discretion to decide this and to execute the authority. Nobody can make the governor do it. And you see candidates for governor, for instance in Arizona, staking out positions on this. And my prediction is, using Arizona as an example, the next governor of Arizona will not be elected in November without committing to exercise this self-defense authority.

Sharyl: This is not just a historic year or two in terms of illegal immigration. This is in the lifetime of our country, we’ve never had so much illegal immigration. Is that accurate?

Cuccinelli: It’s absolutely accurate. We’re shattering every kind of record we ever had for illegal immigration, and that’s what happens when you have a president who essentially invites the whole world in with no conditions. Including, by the way, known or suspected terrorists, criminals, gang members, cartel members. They’re not turning many of these people back.