BORDER SECURITYU.S. Supreme Court Says Texas Can’t Block Federal Agents from the Border

By William Melhado

Published 23 January 2024

The U.S. Supreme Court on Monday ordered Texas to allow federal border agents access to the state’s border with Mexico, where Texas officials have deployed miles of concertina wire. The high court’s order effectively maintains long-running precedent that the federal government — not individual states — has authority to enforce border security.

The U.S. Supreme Court on Monday ordered Texas to allow federal border agents access to the state’s border with Mexico, where Texas officials have deployed miles of concertina wire.

The order did not explain justices’ decisions. For now, it effectively upholds longstanding court rulings that the Constitution gives the federal government sole responsibility for border security.

In October of last year, Texas sued the federal government after Border Patrol agents cut some of the wire strung along the Rio Grande, arguing the Department of Homeland Security destroyed the state’s property and interfered in Texas’ border security efforts.

The 5-4 order from the Supreme Court vacated a previous injunction from the 5th U.S. Circuit Court of Appeals that prevented Border Patrol agents from cutting the concertina wire.

In recent weeks, Shelby Park in Eagle Pass has become the center of a standoff between Texas and the federal government over immigration enforcement. Most recently, Gov. Greg Abbott has ramped up border enforcement around the 47-acre park by surrounding the perimeter by the razor wire and limiting access to the city park.

“The Biden Administration has repeatedly cut wire that Texas installed to stop illegal crossings, opening the floodgates to illegal immigrants. The absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry, while making the job of Texas National Guard soldiers and DPS troopers more dangerous and difficult,” Andrew Mahaleris, a spokesperson for Abbott, said in a statement. “This case is ongoing, and Governor Abbott will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”

Since 2021, Abbott’s Operation Lone Star initiative has created tension between the state and federal government. Under the operation, Abbott has deployed state troopers across the 1,200 mile Texas-Mexico border; ordered state police to arrest migrants who are suspected of trespassing; spent $11 million to install 70,000 rolls of concertina wire along the Rio Grande; and spent $1.5 billion on about a dozen miles of border walls.

As migrants have attempted to get through the wire, Border Patrol has cut through parts of the barrier to assist injured people. Attorney General Ken Paxton filed a lawsuit against DHS, claiming federal agents had illegally destroyed state property.

A U.S. district court judge based in Del Rio sided with the federal government, ruling that Border Patrol agents didn’t violate any laws by cutting the wire. Paxton’s office appealed, and a panel of judges from the 5th Circuit paused the ruling until the case went through the appeals process.

On Jan. 12, National Guard members blocked federal border agents from accessing the Rio Grande after three migrants drowned while crossing the river and two others were still struggling in the water, according to a court filing by the U.S. Department of Justice.

The state denied the federal agency’s version of events, arguing that Mexican officials had the situation under control in subsequent court filings.

On Monday, the Supreme Court vacated the 5th Circuit’s order after the Biden administration sent a cease and desist letter to Paxton for blocking federal access to the border. Chief Justice John Roberts and Justice Amy Coney Barrett joined the court’s three liberal justices in issuing the order.

“The Supreme Court’s temporary order allows Biden to continue his illegal effort to aid the foreign invasion of America,” Paxton said in a statement. “The destruction of Texas’ border barriers will not help enforce the law or keep American citizens safe. This fight is not over, and I look forward to defending our state’s sovereignty.”

Immigration rights groups have criticized Texas officials’ use of the term “invasion” for potentially inciting violence against Hispanic people.

In a separate lawsuit, President Joe Biden sued Texas over the deployment of floating barriers on the Rio Grande, also in Eagle Pass. In December, the 5th Circuit, in a 2-1 decision, ordered Texas to remove the barrier. Texas has asked the appeals court to reconsider the case.

William Melhado is an Austin-based general assignment reporter at the Texas Tribune. This story is published courtesy of the Texas Tribune, a nonpartisan, nonprofit media organization that informs Texans — and engages with them — about public policy, politics, government, and statewide issues.