Ruling for the Biden administration, the Supreme Court said Monday that the U.S. Border Patrol may remove barbed wire installed by Texas authorities that prevents the federal agents from monitoring areas along the Rio Grande.
By a 5 to 4 vote, the justices set aside an order handed down by the 5th Circuit Court that prohibited Border Patrol agents from “damaging, destroying, or otherwise interfering with Texas’s concertina wire fence in the vicinity of Eagle Pass, Texas.”
The court did not explain its decision, issuing a one-line order granting an emergency appeal filed by the Biden administration’s solicitor general.
But the ruling decided an important issue: The narrow majority held that federal agents, not Texas authorities, have the power to patrol along the border.
Justice Amy Coney Barrett cast a key vote, joining Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson to rule for the administration.
Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh dissented and said they would have denied the appeal.
Texas Gov. Greg Abbott initiated the dispute by declaring “an invasion at our border” and installing razor wire to block migrants from entering the state. Texas officials on several occasions refused to remove or set aside the razor wire, as requested by U.S. Border Patrol agents.
After Texas sued and won in the 5th Circuit Court, Solicitor Gen. Elizabeth Prelogar filed an emergency appeal at the Supreme Court on behalf of the Department of Homeland Security and argued that the Constitution gives federal agents, not state officials, the power to enforce the law along the border.
“Federal law unambiguously grants Border Patrol agents the authority, without a warrant, to access private land within 25 miles of the international border,” she said in Department of Homeland Security vs. Texas.
Prelogar said Texas has responded to “increased border crossings” by placing “rolls of concertina wire (a type of coiled razor wire) in numerous locations, including as relevant here along a 29-mile stretch of the riverbank in Eagle Pass, much of which is private land.” The wire coils “stand between Border Patrol agents and the border and the noncitizens along the border they are charged with inspecting and apprehending — thus physically obstructing agents from fulfilling their responsibilities under federal law.”
That in turn prompted “agents [to] cut or move the wire in some circumstances,” Prelogar said.
She argued that Texas policy and the court order upholding it conflict with the “foundational constitutional principle that the federal government is not bound by the laws or policies of any particular state in its enactment and implementation of federal law.”
Texas officials argued that the wire “serves as a deterrent — an effective one at that,” causing illegal border crossings to drop significantly. They described the Eagle Pass area as “the epicenter of the present migrant influx: nearly a quarter of migrant entries into the United States happen there.”
The first U.S. district judge to hear the case questioned why border agents needed to cut the wire but nevertheless agreed that they had the right to do so. She cited photos that showed columns of migrants leaving the river area and said the Border Patrol actions appeared to be “for no apparent purpose other than to allow migrants easier entrance further inland.”
Border Patrol agents said they needed access in order to walk migrants inland to a processing center.
Shortly after the Biden administration appealed to the high court, a woman and two of her children drowned trying to cross the river. The Border Patrol said its agents had been blocked from getting to the river to help, but Texas officials said the deaths had been reported before the federal agents arrived.
The case now goes back to the 5th Circuit, and it’s likely that it will return to the Supreme Court in some form this year.
