from The Gray Area:
1/22/24:
As
The Wall Street Journal reported,
The Supreme Court, in a 5-4 decision, granted the Biden administration’s emergency request to reinstate federal authority over the U.S.-Mexican border in Texas, setting aside a lower-court order that blocked the U.S. Border Patrol from removing concertina wire Texas officers installed to deter migrants from crossing a 29-mile stretch of the Rio Grande. The court’s action restores the Border Patrol’s authority while the protracted dispute between the Biden administration and the Republican government of Texas plays out in the lower courts.
In December, the Fifth U.S. Court of Appeals, in New Orleans, sided with Texas, which sued the U.S. Department of Homeland Security under state trespass laws and other grounds after Border Patrol agents cut through some of the barbed wire on state property. Although the government generally is immune from lawsuits, the Fifth Circuit concluded that Congress had waived that immunity and ordered the Border Patrol
to leave the wire alone while the litigation proceeds.
“
The public interest supports clear protections for property rights from government intrusion and control,” Judge Kyle Duncan wrote for a Fifth Circuit panel.
“
The injunction prohibits agents from passing through or moving physical obstacles erected by the State that prevent access to the very border they are charged with patrolling and the individuals they are charged with apprehending and inspecting,” U.S. Solicitor General Elizabeth Prelogar wrote. The concertina wire could prevent agents from rescuing migrants from drowning or other perils, she wrote, despite an exception in the order allowing federal agents to remove the obstacle for lifesaving purposes.
This decision confirms that the federal government has authority over immigration enforcement, apparently even if they decide not to enforce immigration law. But, as stated above,
The court’s action restores the Border Patrol’s authority while the protracted dispute between the Biden administration and the Republican government of Texas plays out in the lower courts.
In a separate case, a Fifth Circuit panel last month ordered Texas to remove a 1,000-foot floating barrier deployed in the Rio Grande, after the Biden administration argued it created an illegal obstruction making the river impossible to navigate. A hearing by the full court, at the request of Texas, is set for May.
A larger standoff between the state and Biden administration is still unresolved. The Justice Department earlier this month sued Texas and Abbott over a new state law set to go into effect in March that would allow state police and local judges to arrest and deport migrants suspected of crossing the border between ports of entry. The suit argues that Texas law is pre-empted by federal law.
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