Supreme Court Down to the Wire
Conservative justices would have prevented federal Border Patrol from removing Texas-installed razor wire when they need to.
ON MONDAY, THE U.S. SUPREME COURT, in a one-page order, vacated an injunction by the U.S. Court of Appeals for the Fifth Circuit in the Greg Abbott-vs.-Joe Biden border showdown. The Fifth Circuit’s order had allowed Texas to prevent federal officials from breaking through coils of concertina razor wire that the state installed along some parts of the Rio Grande to keep migrants from crossing the U.S.-Mexico border. In October, Texas filed a lawsuit challenging federal officials’ power to cut the wire, which Texas claims violates state law. The lower district court sided with Texas but refused to stop the federal government from accessing areas blocked by the wire during the appeal. The Fifth Circuit granted the temporary ban and set oral argument on the merits for February 7. The question before the Supreme Court was narrow: whether, while awaiting the resolution of that lawsuit, federal Border Patrol should be able to cut the wire to gain access to certain portions of the border and individual migrants. The order indicates that four conservative justices—Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—would have allowed the Fifth Circuit’s ruling to stay in place, effectively constraining federal power to enforce immigration law along parts of the Texas border, for now.
Some relevant background on this contentious and politically charged issue: Immigration has surged under the Biden administration, which eased Trump-era deportations of illegal immigrants, pulled back on a “public charge” rule that would deny entry to migrants who might try to access public benefits like Medicaid, lifted coronavirus restrictions on entry, and expanded refugee or asylum admissions, which are legal under federal law. In his first three years, Biden has taken 535 immigration-related actions as president while federal officials have encountered at least 6.3 million migrants at ports of entry since he took office (nearly the population of Los Angeles and Houston combined)—all while Congress continues to do nothing, a stalemate that has continued across several presidencies.
Although immigration is politically polarizing, with serious arguments on both sides, let’s not forget that actual lives hang in the balance. On January 12, a woman and two children drowned near the area in question, while the Mexican government had to rescue two additional migrants with hypothermia. According to the Biden administration, the Texas National Guard blocked federal Border Patrol officials from investigating the drownings, which Texas called “tragic.” The Washington Post reports that the sharp wire has also “maimed and bloodied” migrants and can take up to thirty minutes to cut through, creating a serious governmental dilemma around how best to deal with people who have put themselves in harm’s way to come to America.
In court, Texas argues that its property rights to the barbed wire must be respected and that it is acting to combat the influx of “deadly fentanyl” and human trafficking, and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” The Fifth Circuit’s ban on federal interference with the razor wire contained an exception for emergencies, but lawyers for the Justice Department argued that federal agents cannot even see certain areas because of the wire and that “without any ability to view the border or the migrants who may be crossing the river—or to be near the concertina wire along the river to render emergency aid—that exception is largely meaningless.”
The Constitution says nothing about immigration, but the Supreme Court has for a long time recognized that Congress has power to make laws relating to immigration as part of both its express and implied constitutional powers. The president’s power over immigration derives largely from statutes under which Congress delegated that power to the executive branch, although it also ties into presidents’ implied powers to manage foreign affairs. In Trump v. Hawaii, the Supreme Court accordingly held in 2018 that the primary law giving presidents power over immigration, the Immigration and Nationality Act, supported Donald Trump’s ban on entry of certain foreign nationals into the United States, even if it was also unconstitutionally discriminatory.
It’s basic constitutional law that under the Supremacy Clause of the U.S. Constitution, federal law is the supreme law of the land. The Supreme Court has consistently ruled that state laws that attempt to regulate immigration are constitutionally preempted by federal law are thus unconstitutional. Texas Governor Greg Abbott is way out on a legal limb here, having also pushed through a state law allowing local police to detain people believed to be in the country illegally and to take steps to deport them (early this year, DOJ filed a lawsuit challenging that law), and installing floating barriers of buoys, which the Fifth Circuit ordered removed. That four justices signaled a willingness to flout this bedrock principle of federal supremacy over immigration—before having made any ruling or consideration on the merits of Abbott’s unprecedented border clashes with Biden—is puzzling, to say the least. It’s time, once again, for Congress to do its job so the justices aren’t tempted to meddle where they really shouldn’t.
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