DHS v. Texas Update (Jan. 3, 2024)

Amy L. Howe, Jan. 3, 2024

"The Biden administration came to the Supreme Court on Tuesday, asking the justices to block an order by a federal appeals court that generally bars federal Border Patrol agents from cutting or moving razor wire installed by Texas along a portion of the U.S.-Mexico border. Representing the federal government, U.S. Solicitor General Elizabeth Prelogar told the justices that the order by the U.S. Court of Appeals for the 5th Circuit has “serious on-the-ground consequences” because it prevents Border Patrol agents from reaching and apprehending migrants who have already entered the United States.

Texas installed rolls of razor-wire fencing along some stretches of the Rio Grande River, which forms the U.S. border with Mexico in the southern part of the state, earlier this year. The fencing was a response to an increase in the number of migrants crossing the border into the United States, many of whom are seeking asylum.

Texas Gov. Greg Abbott defended the use of the wire fencing, writing on X (then known as Twitter) that “Texas has the sovereign authority to defend our borders” and insisting that the state would “continue to deploy every strategy to protect Texans and Americans — and the migrants risking their lives.”

In October, the state filed suit in federal court in Texas, accusing federal Border Patrol agents of violating state laws when they cut or moved the wire fencing. A federal district court rejected the state’s request to bar Border Patrol agents from cutting or removing the wire.

Texas appealed to the 5th Circuit, which on Dec. 19 issued an order that, except in cases of medical emergencies, temporarily bars agents from cutting or moving the wire in the area around the city of Eagle Pass.

Calling it “manifestly wrong,” the Biden administration on Tuesday asked the Supreme Court to put the 5th Circuit’s order on hold. The appeals court’s order, Prelogar explained, “prohibits Border Patrol agents from cutting or moving Texas’s wire barriers that physically block agents from accessing the international border and reaching migrants who have already entered U.S. territory.” But states can’t use their own laws to keep federal agents from carrying out duties authorized by federal law, Prelogar stressed. And if the lower court’s reasoning were approved, Prelogar contended, it would “leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”

The exception to the 5th Circuit’s order for agents responding to medical emergencies is not, Prelogar wrote, sufficient to address the kinds of “deadly situations” that Border Patrol agents may encounter. The “risk of death along this stretch of the river is very real,” Prelogar observed, and it can take agents between 10 and 30 minutes to cut through the wire fencing.

The 5th Circuit’s order is improper for two other reasons, Prelogar continues. First, the federal government generally cannot be sued without Congress’s consent – which it did not provide for a case like this one. Second, under federal immigration law, the lower court lacked the power to issue its order.

If the Supreme Court does not intervene, Prelogar concluded, Border Patrol agents may be barred from cutting the wire until late spring, despite the potential problems that could ensue.

The Biden administration’s request goes first to Justice Samuel Alito, who fields emergency requests from the 5th Circuit. The court on Wednesday asked Texas to file its response to the Biden administration’s application by 5 p.m. on Tuesday, Jan. 9."