Supreme Court clears way for border agents to remove Texas wire barrier

The Supreme Court sided with the Biden administration on Monday and cleared the way for U.S. Border Patrol agents to remove razor wire Texas officials installed along a busy stretch of the southern border until the legality of the barriers is resolved in court.

As is typical in emergency actions, the majority did not explain its reasoning for dissolving an order from a lower court. Four conservatives — Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — noted their dissents without explanation.

The case is one of several legal battles between Texas Gov. Greg Abbott (R) and the Biden administration over the governor’s border crackdown, Operation Lone Star. It comes at a time of rising tension over how to handle hundreds of thousands of migrants who have entered the country illegally in recent months.

Even though immigration and border security matters are generally the purview of the federal government, Abbott has mobilized thousands of National Guard troops and lined the banks of the Rio Grande near Eagle Pass with razor wire to try to block illegal entries.

The Supreme Court’s order reversing the conservative U.S. Court of Appeals for the 5th Circuit on Monday does not address Texas’s more recent move to seize control of a riverfront park in Eagle Pass and deny the Border Patrol access to a section of the border there.

The Biden administration cited the takeover in asking the court to expedite its review of the case, but it did not specifically challenge the state’s action regarding park access. That element of the dispute remains unresolved.

The order on Monday was one of several recent actions by the high court affirming federal immigration authority.

“This is the Supreme Court siding with the federal government yet again on immigration, and the Fifth Circuit being overruled yet again,” said Kathleen Bush-Joseph, an attorney and analyst at the nonpartisan Migration Policy Institute in Washington.

Texas Attorney General Ken Paxton (R) criticized the Supreme Court’s order. “The destruction of Texas’s border barriers will not help enforce the law or keep American citizens safe. This fight is not over,” Paxton said in a statement.

Luis Miranda, a spokesman for the Department of Homeland Security, said the department welcomed the court order. “Enforcement of immigration law is a federal responsibility,” he said in a statement. “Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law.”

Border Patrol is not planning to use the order as a green light to remove the razor wire barriers if they do not present an immediate hazard, according to a senior agency official who spoke on the condition of anonymity because they were not authorized to speak publicly about the ruling. The official said agents are trying to amicably resolve disputes related to access along the riverbanks.

Border agencies have been overwhelmed by the record volume of migrants crossing the U.S.-Mexico border. Republicans have been highly critical of President Biden’s immigration record and tried to capitalize on the issue on the campaign trail, bolstered by polls that show voters trust the GOP more than Democrats to manage the border.

In addition to the wire barriers, the Texas governor has shepherded a new state law that would allow local police agencies to detain people they suspect of being in the country illegally and move to deport them — another law enforcement role historically reserved for the federal government, rather than the state. Both the Justice Department and the ACLU have sued Texas to block that law from taking effect.

Texas initiated the lawsuit against the Biden administration last year to prevent agents from removing or cutting the wire barriers, which the federal government says prevent the agents from reaching migrants who have already entered U.S. territory. Under U.S. immigration law, anyone who reaches U.S. soil has the right to seek asylum here.

A District Court judge sided with Texas, finding that the barriers limit illegal crossings, which impose costs on the state. But the lower court denied the state’s request to block Border Patrol agents from accessing the international border or disturbing the barrier while the litigation continued.

Texas appealed that ruling to the 5th Circuit, which issued a temporary order prohibiting Border Patrol agents from cutting, damaging or moving the barriers while the lawsuit makes its way through the courts.

The Biden administration then asked the Supreme Court to intervene on an emergency basis.

Federal officials say the sharp barriers have maimed and bloodied migrants at several locations and pose a hazard to U.S. agents. After border-crossers used blankets and other garments to try to protect themselves from lacerations while crawling under or over the barrier, federal authorities cut a path through the wire to allow safe passage.

The 5th Circuit order allows agents to cut the barrier in a medical emergency, but the Justice Department said the exception is essentially meaningless because it can take 10 to 30 minutes to cut through the thick layers of wire.

Adding to the urgency, federal officials said this month that Texas National Guard personnel had blocked Border Patrol agents who were investigating reports of drowning migrants from a section of the Rio Grande where the state had placed the barriers. The bodies of three migrants, a woman and two children, were found in the river by Mexican authorities days later.

Texas has told Border Patrol officials that agents who want to use the park’s boat ramp have to ask for permission, according to U.S. Customs and Border Protection officials.

Solicitor General Elizabeth B. Prelogar urged the justices to “restore Border Patrol’s access to the border it is charged with patrolling and the migrants it is responsible for apprehending, inspecting, and processing.”

In filing their response, Texas officials said they were unaware of the Border Patrol’s ongoing need to access the area and were investigating the claim. Paxton, the state attorney general, urged the Supreme Court not to intervene before the 5th Circuit has an opportunity to fully consider the case, which is scheduled for argument on Feb. 7.

“Defendants have claimed authority to destroy property that belongs to someone else based on their assurance that doing so is necessary to enforce federal immigration laws,” Texas Solicitor General Aaron L. Nielson said.

Maria Sacchetti contributed to this report.

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