Critics such as Rep. Veronica Escobar, D-Texas, claim that Texas Gov. Greg Abbott’s intention to continue securing the border, including with barbed wire, is “unconstitutional” and that he is violating the Supreme Court’s Jan. 22 order. They’re wrong. There has been no such finding by the Supreme Court, and nothing in that order prevents the governor from trying to protect Texans from the massive wave of aliens illegally crossing the border with the connivance of the Biden administration.
This lawsuit was actually initiated by Texas against the Biden administration after the Border Patrol started destroying the barbed or concertina wire barrier that the state had placed along 29 miles of Eagle Pass, one of the most heavily trafficked crossings in Texas. Texas claimed that the Biden administration was trespassing and destroying its property since the wire barrier was only on municipal or private property, not federal property.
The federal district court’s factual findings were all in favor of Texas and cited the federal government’s refusal to enforce immigration law. In fact, as Texas outlined its brief in the U.S. Supreme Court, the district court concluded that the evidence “amply demonstrates the utter failure of the Defendants to deter, prevent, and halt unlawful entry into the United States.” The district court criticized the Biden administration for seeking “judicial blessing of practices that both directly contravene those same [federal] statutory obligations and require the destruction of the Plaintiff’s property.”
But the district court refused to issue an injunction because it believed the federal government was immune from suit under applicable federal law. Texas filed an appeal with the U.S. Court of Appeals for the 5th Circuit, which concluded that the district court’s interpretation of the law was incorrect. The 5th Circuit issued an injunction on Dec. 19 against the federal government pending further appeal with one exception—the right to “cut or move” the wire “if necessary to address any medical emergency.”
The Biden administration then filed an emergency appeal with the U.S. Supreme Court asking that the injunction be vacated (dissolved). The Supreme Court issued a 5-to-4, two-sentence order simply vacating the injunction while the case is on appeal. This was not a decision on the merits of Texas’s claim against the federal government, which will continue to be litigated in the lower courts.
Significantly, there is nothing in the Supreme Court’s order that prevents Texas from continuing to place barbed wire or other barriers along the border on state or private property. But while the case is pending, there is nothing preventing the federal government from tearing down the wire fencing.
So it may end up becoming a race between Texas putting in effective measures to seal off the border, while the Biden administration does everything it can to remove those barriers so the border remains an open sieve as part and parcel of the administration's deliberate policy of flooding the country with as many illegal aliens as possible.
There is no doubt that Texas’s placement of a barbed-wire barrier has been effective. The district court found that the “the wire was so successful that illegal border crossings dropped to less than a third of their previous levels.” The Biden administration knows this is an effective way of diminishing and deterring illegal border crossings—as Texas pointed out in its brief, the “federal government also uses [the same barbed] wire fencing to deter illegal crossings and route migrants to lawful ports of entry."
Yet the district court found that video evidence showed federal agents “cutting multiple holes in the concertina wire for no apparent purpose other than to allow migrants easier entrance further inland.” The video not only showed them cutting holes in the fence, but it also showed them installing a “climbing rope” to make it easier for the aliens to get across the border.
A Border Patrol boat in the middle of the river was just “passively” watching aliens crossing the river, making no attempt whatsoever to stop them from entering the U.S. Once they were across the border, the Border Patrol told the aliens to walk inland “with no supervision in hopes they would proceed to the nearest immigration processing center.”
When Texas officers tried to record what the federal agents were doing, the agents told the Texas law enforcement officers to “back the f*** off” and claimed they were “not authorized to take any pictures.” In other words, the Biden administration was trying to hide what it was doing.
Despite the Supreme Court’s order, Texas has a strong possibility of ultimately winning this case on the merits. Contrary to the Biden administration’s claims, Texas is not interfering in the federal government’s enforcement of federal immigration law. All of the concertina wire was placed on state or private property whose owners granted Texas an easement on their property. It is the federal government that is trespassing and destroying state-owned or private property.
Moreover, under the Supreme Court’s 2011 holding in Chamber of Commerce v Whiting, state laws are not preempted by federal immigration law unless they contravene federal law. There is no provision in any federal law that explicitly or implicitly prohibits the state from erecting barriers on private property. This is especially true given the fact that the illegal entry of aliens is already prohibited by federal law, 8 U.S.C. § 1325. How can Texas make it more difficult for aliens to enter the country illegally violate that or any other provision?
Clearly, the actions that Texas is taking help the federal government’s enforcement of federal immigration law and the ban on illegal entry. But the whole reason for the Biden administration’s actions in this case is to make sure federal immigration laws are not enforced.
The bottom line here is that this case is far from over. While the Biden administration may have won one round, there are a lot more to go. Hopefully, when this case gets to the Supreme Court on the merits, Texas will win by a knockout.
If it doesn’t, aliens, drugs, smugglers, terrorists, and human traffickers will continue flooding across the Texas border and making their way to every city and county throughout the country. And the Biden administration is just fine with that.
This piece originally appeared in Fox News