By: Tess O’Donoghue, Co-Editor in Chief
On January 22nd, the Supreme Court issued an order asserting the federal government’s ability to deconstruct a barrier of razor wire put in place by the Texas military. The order is part of an ongoing dispute: Department of Homeland Security v. Texas. Although this order is an important defense of the department’s authority, the tension between the federal and Texas governments has not been relieved.
As part of his “Operation Lone Star” plan, Texas Governor Greg Abbot authorized military personnel to install thirty miles of concertina wire along the banks of the Rio Grande. The wire is designed to prevent migrants from entering the border city of Eagle Pass. In the past three years, the Texas Military Department spent $11 million to install 70,000 rolls – about 30 miles – of wire. When the wall was being installed in December, Texas officials built it at a rate of about 120 feet per hour. That means it would take 1,320 hours – or 55 days of nonstop work – to build the entire wall.
Texas authorities call the structure an “anti-climb barrier,” but that title does not do justice to the threat it poses. It stands at twelve feet high, and its steel barbs have inflicted severe injuries on migrants who’ve tried to scale it. Despite this danger, the wire does not prevent migrants from entering the country. Once they arrive at the border, migrants are unable to swim back to Mexico due to the strong currents of the Rio Grande. Instead, they are forced onto deadlier paths through desert and mountainous terrain. Furthermore, the wire does not serve as an effective deterrent to future migration. When migrants who have reached the United States share their stories with those looking to make the journey here, the barbed wire is one of many dangers they describe, which include extreme weather, violence, and the hazardous conditions of the Darien jungle. Migrants who are willing to face these life-threatening conditions have few viable alternatives, and the wire simply adds to the hardships they must undergo.
To install the wire, the Texas Military Department took control of Shelby Park, a city park near Eagle Pass, and prevented federal Border Patrol agents from reaching 2.5 miles of the Texas-Mexico border. When federal officials began to forklift the wire, they were blocked by Texas military personnel. Consequently, the Justice Department, the Department of Homeland Security, and the Department of State of the federal government filed a suit against the state of Texas. The Supreme Court took the case after the 5th U.S. Circuit Court of Appeals, a court known for its conservative decisions, issued an order that Border Patrol could not deconstruct the wire.
In its briefs, Texas argued that Abbot had the authority to order the construction of the wire and to block Border Patrol from deconstructing it as part of his larger statewide plan for deterring immigration. However, the federal government reminded the Court of the authority vested in federal law enforcement officers by the Constitution: the second clause of Article VI, also known as the Supremacy Clause, states that the Constitution and other federal laws “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Justice Department also cited a precedent from a 2012 case, Arizona v. United States, in which the Supreme Court asserted the federal government’s ability to set and uphold border policies and use its judgment in the removal process.
On a practical level, lawyers for Texas pointed out that military officials would allow the wire to be deconstructed in emergencies. However, cutting the wire takes ten to thirty minutes, and it is no easy task – a forklift was needed to clear it in the first place. In the case of an emergency, by the time the border was deconstructed, it would be too late. The Justice Department further highlighted the dangers of the wire, telling the Court that a Border Patrol official “saw an ‘unconscious subject floating on top of the water,’ but was ‘unable to retrieve or render aid to the subject due to the concertina wire barrier placed along the riverbank.’”
In response to these arguments, the Court issued an extremely brief order – less than half a page long – vacating the injunction. Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor supported the order, while Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas dissented.
Even though the broader case, Department of Homeland Security v. Texas, is ongoing, Texas authorities must adhere to this order of the high court. Regardless, the wire is being removed very slowly, and some lawmakers in Texas have called for the military to ignore the order and to continue to block Border Patrol agents from performing their duties.
This is just one in a messy slew of border-related disputes that have come before federal courts. In September, another federal court ruled in favor of the Biden administration, which had requested that the Texas military remove floating barriers in the Rio Grande on the grounds that Texas had not received permission from the federal government to place the barriers in the federally controlled waterways. The administration argued that the barriers sparked tensions with Mexico, prevented federal Border Patrol agents from accessing the waterway, and, most importantly, severely endangered migrants.
Although the January order, similar to the September ruling, favored federal agents, the outcomes of these cases are insufficient to suggest that their authority is secure in the eyes of federal courts. In fact, many legal scholars were shocked by the fact that four justices dissented from the order and believed that the Supreme Court may be willing to rule in favor of states’ rights over federal authority in similar instances. As we follow these disputes weaving their way through the courts, we cannot get lost in the tangle of procedure and policy and risk forgetting the real people at its center.
A combat engineer installing barbed wire at the U.S.–Mexico border
Photo Credit: Picryl (Creative Commons Licenses)
The Joritan 