Julie Conley: Supreme Court Rules 5-4 Against Texas in Razor Wire Border Battle

Published originally at Common Dreams on January 22, 2024 under Creative Commons CC BY-NC-ND 3.0 license

Immigrant rights advocates and legal experts on Monday applauded as the U.S. Supreme Court ruled that Texas officials cannot impede federal border agents from cutting down razor wire that Republican Gov. Greg Abbott installed near the Rio Grande to stop migrants and asylum-seekers from crossing the U.S.-Mexico border—but expressed shock that four justices opposed the decision. 

The high court voted 5-4 in favor of the Biden administration, which had previously been ordered by a federal appeals court last month to stop removing razor wire. 

Right-wing Justices Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented, while Chief Justice John Roberts and Justice Amy Coney Barrett joined the court’s three liberals in voting to allow border agents to cut down the wire. 

Texas argued last month that under the Biden administration’s orders, border agents had damaged state property and illegally trespassed when they cut through the concertina wire in order to reach migrants who had crossed onto U.S. soil and take them into custody for processing. 

The U.S. Justice Department filed an emergency request asking the Supreme Court to reverse the federal appeals court’s ruling.

In the Biden administration’s filing, officials noted that three migrants—a woman and two children—drowned just over a week ago while trying to cross the Rio Grande. 

The drownings, wrote U.S. Solicitor General Elizabeth Prelogar, “underscore that Texas is firm in its continued efforts to exercise complete control of the border and land… and to block Border Patrol’s access to the border even in emergency circumstances.”

“It is impossible to say what might have happened if Border Patrol had had its former access to the area—including through its surveillance trucks that assisted in monitoring the area,” wrote Prelogar. “At the very least, however, Border Patrol would have had the opportunity to take any available steps to fulfill its responsibilities and assist its counterparts in the Mexican government with undertaking the rescue mission. Texas made that impossible.”

The administration said the appeals court’s ruling turned the U.S. Constitution’s supremacy clause “on its head.” The clause states that federal laws take precedence over statutes put in place by state governments. 

“If that injunction is left in place,” Prelogar said, “it will impede Border Patrol agents from carrying out their responsibilities to enforce the immigration laws and guard against the risk of injury and death, matters for which the federal government, not Texas, is held politically accountable.”

Journalist Peter Sterne was among those who expressed concern over the four conservative justices’ apparent disagreement with the supremacy clause. 

“Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents,” said University of Texas School of Law professor and CNN Supreme Court analyst Steve Vladeck. “That four justices would still have left the lower court injunction in place will be taken, rightly or wrongly, as a sign that some of those long-standing principles of constitutional federalism might be in a degree of flux.” 

Aaron Reichlin-Melnick, policy director of the American Immigration Council, said that considering well-established constitutional law, it was “not a surprise that the Supreme Court ruled in the Biden administration’s favor here. 

“That said,” he added, “the fact that four votes went in Texas’ favor is a worrying sign.”