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Screenshots of a September 20, 2023 video show Border Patrol agents cutting holes in razor wire erected by the State of Texas along the U.S.-Mexico border (image via court documents).
One of the many immigration-related battles between President Joe Biden’s administration and the state of Texas reached the Supreme Court Tuesday when the federal government asked the justices to step in and allow it to cut razor wire barriers along 29 miles of the Rio Grande.
U.S. Solicitor General Elizabeth Prelogar filed an emergency appeal on behalf of the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) asking that the court overturn an order issued by the U.S. Court of Appeals for the 5th Circuit issued on Dec. 19, 2023.
Texas Gov. Greg Abbott (R) initiated a wide-scale anti-immigration campaign dubbed “Operation Lone Star” in 2021. Abbott’s efforts to increase border security included installation of concertina wire — a type of coiled razor wire — along with a floating barrier of buoys in the Rio Grande and a plan to add thousands of Texas state troopers to patrol parts of the state’s 1,254 mile long border with Mexico. Opponents say the harsh measures will result in racial profiling and will threaten community safety by disincentivizing crime victims to speak with law enforcement.
Texas filed a civil lawsuit in federal court claiming that CPB agents were cutting, destroying, and damaging fencing that Texas had strategically placed along the U.S.-Mexico border on private land, with landowners’ permission. The New Orleans-based 5th Circuit ruled in favor of Texas and issued an injunction against CPB, ordering the government to cease removing the razor wire except in cases of emergency, such as if a migrant is “drowning or suffering heat exhaustion.”
Central to the dispute between Texas and the federal agencies involved in the case is the scope of the federal government’s control over immigration policy. The Supreme Court ruled in 1948 that the federal power to regulate immigration is “broad” and that individual states have “no such powers,” and disputes about state power to regulate borders with a foreign country have been relatively rare.
In its emergency filing, the Biden administration argued that, “Federal law unambiguously grants Border Patrol agents the authority, without a warrant, to access private land within 25 miles of the international border.” Specifically, the government said that the Supremacy Clause of the Constitution authorizes federal agents to act without limitations grounded in state law.
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In a 42-page brief, the Biden administration made its case that the 5th Circuit’s ruling was incorrect because it “inverts the Supremacy Clause by requiring federal law to yield to Texas law.”
The brief argued that the issue is not merely a legal one, but also a practical one: Border patrol agents often make split-second decisions and use their discretion “to prevent the development of deadly situations, including by mitigating the serious risks of drowning and death from hypothermia or heat exposure.” The 10 to 30 minutes required to cut through razor wire may thwart officials from rendering life-saving aid, said the brief.
Furthermore, the administration argued, CPB has no authority to force noncitizens immediately back across the border. Rather, as Congress intended, even a noncitizen who enters the U.S. illegally has certain legal rights.
During its appeal to the 5th Circuit, Texas argued that it would suffer “irreparable injury” if CPB were allowed to continue removing the concertina wires. However, the federal government said that any financial injury Texas might suffer “pales in comparison to the harms shown by the United States” that would result from leaving the dangerous barriers as Texas wishes.
The emergency appeal was submitted to Supreme Court Justice Samuel Alito, who is the justice assigned to administer emergency appeals from the 5th Circuit. The 5th Circuit is also the nation’s most conservative federal appeals court, and is staffed by half a dozen judges appointed by President Donald Trump.
You can read the full emergency filing here.
