Recognition of the State War Power: The Forgotten Constitutional Clause

Heather Dwyer, University of La Verne College of Law

Abstract

This article argues for the existence of a State War Power; a power both antecedent to, and affirmatively acknowledged in, the Constitution. This power permits a state to engage in war if invaded by a hostile force, independent of any federal action. Where a state government and the federal government are at odds, this paper argues that reasonable actions a state takes pursuant to the State War Power can withstand a supremacy challenge by the federal government because the State War Power is a constitutionally enshrined power and provisions of the Constitution must be construed so that the Constitution is not self-destructive. This article proposes that the State War Power is essential to the preservation of federalism. It ensures a vital aspect of the constitutional republic, state sovereignty, and allows states to compensate for the failure of the federal government to protect against invasion as required by the Guarantee Clause. Although, there has been little necessity for states to invoke the State War Power because the federal government has historically fulfilled its obligation under the Guarantee Clause, this paper uses the border states, Arizona in particular, as an example of an appropriate application of the State War Power: defense against invasion by Drug Trafficking Organizations.