Some Republicans are urging that the State of Texas ignore the Supreme Court decision that gives the border patrol the right to remove razor wire along the border, claiming that the ruling conflicts with the state's obligation to protect its citizens.
"They have a duty under the Constitution… and every other norm of leadership of any sovereign state, to protect your citizens, period, full stop. There is no exception to that," Rep. Chip Roy (R-Texas) told Fox News. "And if the Supreme Court wants to ignore that truth, which a slim majority did, Texas still had the duty, Texas leaders still have the duty, to defend their people."
"It's like, if someone's breaking into your house, and the court says, 'Oh, sorry. You can't defend yourself.' What do you tell the court? You tell the court to go to hell, you defend yourself and then figure it out later."
The Supreme Court voted 5-4 to allow the border patrol to remove the wire as the case moves through the district court. The Supreme Court will probably get another chance to weigh in on the issue. Joining the court liberals in allowing the federal government to remove the razor wire were Chief Justice John Roberts and Justice Amy Coney Barrett.
“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 Steve Vladeck, professor at the University of Texas School of Law. “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 longstanding principles of constitutional federalism might be in a degree of flux.”
Andrew Mahaleris, a spokesman for Gov. Greg Abbott (R-Texas), said in a statement that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”
Whatever the court said, it didn't take in Texas. As of 24 hours after the decision, the razor wire is still up. There is currently “no timetable” on removing the wire, Acting Customs and Border Patrol Commissioner Troy Miller said.
Could a confrontation between border patrol agents and Texas National Guardsmen be in the offing?
The Biden administration is arguing that the actions taken by Texas violate the Constitution's Article VI, Paragraph 2, commonly referred to as the "Supremacy Clause," which simply means that a state, according to Cornell's Legal Information Institute, is prohibited "from interfering with the federal government's exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government."
Longstanding Supreme Court precedent gives the federal government sole authority over immigration enforcement.
The 5th Circuit is currently weighing the legal questions around whether the federal government has the authority to cut the wire that Texas had installed on the banks of the Rio Grande. It’s set to hear oral arguments in the case February 7.
Texas had urged the Supreme Court to deny the Biden administration’s request, telling the justices in court papers that “there is no basis for this Court’s intervention, much less now.”
Attorneys for the state noted that after the Biden administration filed its emergency request to the justices, the appeals court said it would expedite its review of the case – a decision the state had argued undermined a need for quick action by the nation’s high court.
The distinction is important. The Supreme Court decision was not about the federal government's authority to have the wire removed. That's a separate issue that's moving through the district court. The case decided by the high court was to grant the Biden administration emergency relief to remove the wire while the district court makes its determination in the case.
National Border Patrol Council President Brandon Judd argued that the decision would encourage more illegal immigration.
"Agents support what Texas was trying to accomplish in the absence of true border security policies from this administration," he said.
At any rate, Abbott isn't giving up.
“This is not over,” Abbott wrote Monday on X. “Texas’ razor wire is an effective deterrent to the illegal crossings Biden encourages. I will continue to defend Texas’ constitutional authority to secure the border and prevent the Biden Admin from destroying our property.”
