Supreme Court sides with Biden over razor wire border dispute, clearing the way to remove barriers

Texas Department of Public Safety personnel watch as a large group of migrants cross the Rio Grande into the U.S. at Eagle Pass, Texas, Thursday, Sept. 21, 2023. A surge of migrants started early in the week and continued through Thursday.
Jerry Lara/San Antonio Express-News


Texas National Guard reinforce concertina wire in Eagle Pass, Texas, Thursday, Sept. 21, 2023. A surge in migrant crossings started early in the week and continued through Thursday.
Jerry Lara/San Antonio Express-News


Migrants look for a way through the concertina wire on the banks of the Rio Grande south of Eagle Pass, Texas, Tuesday, July 11, 2023.
Jerry Lara/San Antonio Express-News


A migrant asks for help as a group of them try to get through the concertina wire on the banks of Rio Grande south of Eagle Pass, Texas, Tuesday, July 11, 2023.
Jerry Lara/San Antonio Express-News

Houston Chronicle
By Benjamin Wermund,Washington Bureau
January 22, 2024

WASHINGTON — The Supreme Court on Monday sided with the Biden administration in its ongoing dispute with Texas over razor wire the state has strung along the Rio Grande, clearing the way for the Border Patrol to begin cutting through spools of wire the administration says endangers migrants.  

In a 5-4 ruling, the court struck down a lower court decision that had barred the Border Patrol from cutting or moving state-owned razor wire except to reach migrants in need of emergency medical assistance. Justice Amy Coney Barrett and Chief Justice John Roberts, both conservatives, joined the court’s three liberal members in the decision.

The ruling is a blow to Gov. Greg Abbott’s border security crackdown, which has pushed the bounds of immigration enforcement and drawn multiple lawsuits that could test how far states are permitted to go in securing the international boundary. The full razor wire case is still pending before a district court judge.

The high court’s decision comes as Texas soldiers have been blocking the Border Patrol from a 2½-mile stretch near Eagle Pass in an unprecedented state takeover that escalated the dispute. It was not immediately clear if the state would allow the Border Patrol back into the stretch, which includes a public park, in light of the ruling. 

The Texas Military Department overseeing the takeover did not immediately respond to a request for comment. Abbott, who is directing the border crackdown, was in India for a weeklong economic tour.

A spokesman for the governor said Abbott “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”

The Department for Homeland Security, which includes Border Patrol, cheeredthe Supreme Court order.

"Enforcement of immigration law is a federal responsibility," a DHS spokesperson said. "Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way."

The Justice Department has argued that the takeover is putting migrant lives at risk, pointing to the drownings of a woman and two children in the Rio Grande after the state began blocking the Border Patrol from accessing the park. Abbott says the state has been forced to step in, accusing President Joe Biden of refusing to secure the border. 

The court did not explain the ruling, issuing just one paragraph vacating the lower court ruling. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — all conservative members — dissented. 

Lt. Gov. Dan Patrick called the ruling "extremely disappointing and frustrating" and said Roberts "lets us down again in a critical 5-4 decision as he sides with the liberals on the Court on this important border issue."

Attorney General Ken Paxton in October sued to stop Border Patrol agents from tampering with the wire, arguing that they have no authority to damage or seize state property that is not on federal land and that their actions are thwarting state border operations. The conservative 5th U.S. Circuit Court of Appeals sided with Texas and blocked the Border Patrol from messing with the wire.

But the state takeover and migrant drownings escalated the dispute this month, with the Justice Department urging the Supreme Court to step in and force the state to allow the Border Patrol back into the park.

According to filings in the case, soldiers were preventing the Border Patrol from reaching a key staging area under an international bridge and blocking them from using a boat ramp in the park — the only one for miles along the Rio Grande. The National Guard told the Border Patrol that it would not allow federal agents to apprehend migrants in the area or permit state troopers to turn migrants over to federal agents for processing, according to the filing. The park was the center of Abbott’s migrant crackdown last summer, when the state strung miles of razor wire and lined the Rio Grande with shipping containers. Also, state troopers arrested thousands of migrants on trespassing charges. 

The Justice Department argued that the takeover prevented the Border Patrol from monitoring a critical stretch of the border and kept agents from responding quickly to emergencies, including those the lower court ruling specifically allowed for agents to respond to.

A top Border Patrol official said in a sworn statement before the court that while the recent drownings of the woman and two children already had occurred when agents received a distress call from Mexico, Texas soldiers blocked federal agents from getting to two others who were struggling in the river that night. Those migrants were rescued by a Mexican airboat and were suffering from hypothermia. 

“It is impossible to say what might have happened if Border Patrol had had its former access to the area — including through its surveillance trucks that assisted in monitoring the area,” the filing said. “At the very least, however, Border Patrol would have had the opportunity to take any available steps to fulfill its responsibilities and assist its counterparts in the Mexican government with undertaking the rescue mission. Texas made that impossible.”

The state argued in response that the takeover was irrelevant to the razor wire dispute before the court. It argued that the wire is meant to serve as a deterrent to keep migrants from trying to cross into Texas and that Biden’s border policies were encouraging them to do so.

“The loss of any human life in the Rio Grande is tragic — and preventable,” Paxton wrote in a filing last week. “That is one reason Governor Abbott ordered the installation of the concertina wire at issue in this case.”

This is a developing story. Check back for updates.