Melissa Joskow / Media Matters

Ken Cuccinelli, President Donald Trump’s likely pick for a senior position at the Department of Homeland Security, previously told Breitbart.com that states could invoke “war powers” against migrants crossing the U.S. southern border because “it’s an invasion.” He added that doing so would mean “there’s no due process” and states could “point them back across the river and let them swim for it.”  

Trump is reportedly set to hire Cuccinelli, a former CNN commentator and Virginia attorney general, to a senior position at DHS, where he would coordinate immigration policy. Media Matters recently documented Cuccinelli’s long anti-LGBTQ record. Cuccinelli also has a history of pushing anti-immigrant policies and rhetoric, including comparing undocumented immigrants to rats and opposing birthright citizenship.

One of his most extreme anti-immigrant positions came out on the October 23, 2018, edition of Breitbart News Daily, the radio show of the right-wing website that has pushed white nationalist propaganda. (Breitbart.com documented the appearance at the time, but Cuccinelli’s comments have largely gone unnoticed.) Cuccinelli discussed the migrant caravan that was approaching the U.S. southern border. Right-wing media and Republicans frequently fearmongered about the supposed threat of the caravan in the run-up to the 2018 election as a way to drum up votes.

During that appearance, Cuccinelli suggested that states could constitutionally enter into war with the migrant caravan because “we’ve been being invaded for a long time and so the border states clearly qualify here to utilize this power themselves.”

If they did so, “because they’re acting under war powers, there’s no due process,” Cuccinelli said. “They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance and turn people back at the border.”

“You just point them back across the river and let them swim for it,” he later added.

Cuccinelli also expanded on his argument for why the migrant caravan is supposedly an invading force, stating: “When someone comes across your border without your permission, it’s an invasion. Their purpose here is to violate the border, to violate our sovereignty, for their own purposes. That’s an invasion.” He later agreed with host Matt Boyle’s suggestion that the migrant caravan is acting like an “army” and suggested the caravan could be infiltrated by terrorists (in reality, there’s no evidence there were terrorists in the caravan).

The Washington Post recently reported that “in a sign of sensitivity to criticisms from immigration hard-liners,” the president's “advisers are looking at measures behind the scenes such as the Insurrection Act, an arcane law that allows the president to employ the military to combat lawlessness or rebellion, to remove illegal immigrants.” 

From Cuccinelli's appearance:

KEN CUCCINELLI: Article 1, Section 10 of the Constitution, the third paragraph, lists some things that the states can do and under certain circumstances. And it says that no state shall enter into war without the permission of Congress unless they are actually invaded. Well, here it comes. And there are several interesting aspects of that.

First of all, we’ve been being invaded for a long time and so the border states clearly qualify here to utilize this power themselves. And what’s interesting is they don’t need anyone’s permission. They can do it themselves. And because they’re acting under war powers, there’s no due process. They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance and turn people back at the border. Literally, you don’t have to keep them, no catch and release, no nothing. You just point them back across the river and let them swim for it. Maybe you have a little courtesy shuttle and drive them over and leave them there. And the states can do that, interestingly enough, and the federal government can’t. But it really becomes a question of do they want to utilize this power or not.

…

Look, we use things called authorizations for the use of military force in Congress instead of declarations of war. There’s still, as a constitutional matter, it’s a declaration of war, but they’re against non-countries. The Taliban isn’t a country. ISIS isn’t a country. Al Qaeda isn’t a country. Yet we have effectively been declaring war on these amorphous groups that are not countries. And these are not people who are invading.

When someone comes across your border without your permission, it’s an invasion. Their purpose here is to violate the border, to violate our sovereignty, for their own purposes. That’s an invasion. And here, I don’t think with the caravan it’s even debatable because you’ve got an entire group that’s organized itself to come into the country.