The Supreme Court Is Now Complicit in Texas’ Armed Standoff With the Feds

BY MARK JOSEPH STERN

A sign reads "Law Enforcement Only" in front of a fence with barbed wire.
An officer stands guard on the banks of the Rio Grande in Eagle Pass, Texas, on Friday. Brandon Bell/Getty Images

Texas Gov. Greg Abbott is inciting a conflict between Border Patrol and the state’s National Guard that is inching closer and closer toward a violent clash between armed agents of state and federal law enforcement. The governor, as commander in chief of the Texas Guard, has directed his soldiers to block Border Patrol’s access to migrants, physically preventing federal officers from performing the duties assigned to them by Congress and the president. Abbott has received key assistance from the U.S. Court of Appeals for the 5th Circuit, which cleared the way for him to obstruct federal border enforcement.

Tensions on the ground are escalating by the hour, as the Texas Guard—emboldened by the 5th Circuit—is wiring off an ever-greater portion of the border. The Guard is refusing entry to all federal law enforcement and to active duty service members. Even in an emergency, like the potential drowning of a migrant, the Texas Guard will not let federal officers or service members through to the border. If the Supreme Court does not reverse the 5th Circuit very soon, there is a real possibility that Abbott’s partisan stunt will spiral into open battle between the state and federal governments.

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The current dispute is yet another consequence of Operation Lone Star, Abbott’s cynical effort to usurp authority over immigration from the Biden administration. It’s also symptomatic of the failure of our judiciary and the Supreme Court’s inability, or lack of desire, to check radical Trump-placed judges below it that issue far-right rulings with devastating consequences for democracy and human rights. The multibillion-dollar “operation” in question here directs Texas Guardsmen and state troopers to police the southern border and arrest migrants who cross over without authorization. It has utterly failed to reduce unlawful border crossings, though it has produced egregious acts of cruelty toward migrants; guardsmen have tried to drown these individuals, deprived them of water, and left them to suffer heat exhaustion in the tangle of razor wire set up by the state.

This razor wire, which stretches for dozens of miles, is designed to ensnare migrants and prevent Border Patrol from reaching them. The wire is located on the U.S. side of the border—which means that by the time migrants reach it, they are on American soil. Federal law grants Border Patrol the right to access all land within 25 miles of the border; it also requires border agents to inspect, process, arrest, and detain migrants on U.S. soil. The Texas Guard, however, has barred agents from performing these tasks. It has fenced off a large section of Eagle Pass, an area where migrants frequently cross the Rio Grande into the United States, and has banished Border Patrol from entering. Border Patrol tried to monitor the area by boat, but the Texas Guard put a chain around the gate to the boat ramp so that border agents couldn’t use it. Guardsmen also piled dirt on both sides of the gates that provide access to the Rio Grande in order to block federal access to the river.

The Texas Guard’s actions are in direct conflict with federal law. Moreover, Abbott has directed guardsmen to push unauthorized migrants back across the border, which further contradicts federal law: Congress has deemed these migrants “applicants for admission” once they reach U.S. soil and has granted them certain rights, such as the ability to seek asylum. Texas has effectively nullified multiple federal statutes by trying to turn away migrants and forbidding Border Patrol from intercepting them.

States, of course, have no constitutional prerogative to nullify federal law. This principle was established during the nullification crisis of the 1830s and the Southern resistance to desegregation during the Civil Rights era. Nor, under the Constitution’s supremacy clause, can states interfere with the lawful exercise of federal authority; this rule is one of the oldest and most entrenched in all of constitutional law.

In response to Texas’ illegal nullification scheme, Border Patrol started to cut down the state’s razor wire. Texas responded by suing the Department of Homeland Security for trespassing on the state’s property. A district court rejected the claim, but the 5th Circuit embraced it in a defiant opinion by Judge Stuart Kyle Duncan, a Donald Trump appointee. (Judge Don Willett, another Trump appointee, joined in full; Judge Catharina Haynes, a less extreme George W. Bush appointee, declined to sign on.)

Duncan’s opinion rested largely on a deceptively edited video submitted by Texas that, according to the state, shows border agents cutting the wire to let in migrants, then refusing to intercept them as they wander into the country. This video, Duncan asserted, proved that Border Patrol was not fulfilling its legal duties. (Federal officials have attested that, in reality, these migrants were directed to a staging area where they were detained, an event that was apparently edited out of the footage.) So Duncan and Willett issued an injunction barring border agents from cutting through the wire, except in the case of medical emergencies. (Federal officers would need up to half an hour to cut through the wire, significantly delaying their response to such an emergency.)

The Supreme Court is complicit in Texas’ armed standoff with the feds. (slate.com)

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