US Supreme Court allows federal agents to cut Texas border fencing – JURIST

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The US Supreme Court voted 5-4 on Monday to permit federal border patrol agents to cut the razor wire that Texas installed on the US-Mexico border. The Biden administration requested the decision to allow federal agents to access the border without facing tort claims from Texas. The urgency follows recent deaths at the border crossing and the reported inherent danger of the razor wire structures.

The Supreme Court will address the case in full this session. Presently on the emergency docket, Department of Homeland Security et al. v. State of Texas stems from an ongoing border crisis conflict between the Biden administration and Texas Governor Greg Abbott’s Lone Star border control policy. Governor Abbott has issued a series of border control actions in response to the unprecedented rise in illegal border crossings and installed the razor wire along the Rio Grande River as part of a physical barrier construction. 

Counsel for Texas, which includes Texas Attorney General Ken Paxton, responded to the Biden request with, “The loss of any human life in the Rio Grande is tragic—and preventable. That is one reason Governor Abbott ordered installing the concertina wire at issue in this case.” Counsel said the wire serves as a “deterrent” to unlawful entry, and crossings have dropped to “less than a third from previous levels.” Governor Abbot’s office claims since the launch of  Operation Lone Star, there have been over 496,000 undocumented immigrant apprehensions and more than 38,500 criminal arrests, with more than 34,900 felony charges. On X (formally Twitter), the Texas department of Public Safety releases arrest videos to verify the apprehensions and to recruit officers.

In her brief to the court, Solicitor General Elizabeth Prelogar advocated Biden’s request:

[T]he 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 … [u]nder the Supremacy Clause, state law cannot be applied to restrain those federal agents from carrying out their federally authorized activities. That conclusion follows from centuries of this Court’s precedent.

The Supremacy Clause of the US Constitution stipulates that states cannot interfere with federal law and that federal law supersedes conflicting state laws.

At Monday’s White House press briefing, Press Secretary Karine Jean-Pierre answered questions about the border dispute and the recent migrant deaths. She emphasized that Biden has created an emergency supplemental national security request to Congress in response to the increased activity on the US-Mexico border. The Press Secretary said the president feels now is an “urgent time to move forward” on congressional action, so situations such as the one in Texas, can be addressed. 

Chief Justice John Roberts and Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor voted to approve Biden’s request for the court to restrict Texas’ actions. Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas voted to allow the Texas policy. The justices did not comment on the reasoning behind their decision.



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