Texas Sets Up Showdown Over Federal Control of the Border

Texas has seized a portion of the U.S.-Mexico border in a bizarre, tragic, and high-stakes bid to claim for itself a power which has long been federal: control of the international border.

The confrontation between federal power and an unruly state government came to a head this weekend after Gov. Greg Abbott (R) and Texas state lawmakers have spent years laying the groundwork to annex what has, until now, been a core federal responsibility: securing the U.S.-Mexico border.

Now, Texas is physically blocking border patrol agents from accessing parts of the frontier, an extraordinary usurpation of federal authority.

And, at the same time, there’s relatively little the Biden administration can do to push back. The entire confrontation is reaching a head in part because of a December injunction from a federal appeals court which bans federal agents from removing barriers placed by the state of Texas. The Biden administration is appealing, and dropped a flurry of filings before the Supreme Court this weekend about the confrontation.

On top of it all, three migrants drowned in the Rio Grande on Friday. The Biden administration made clear in a Monday Supreme Court filing that border patrol officials asked for access after the woman and three children had already drowned, though Mexican officials ended up rescuing two other migrants after Texas authorities blocked federal agents from gaining access.

Abbott and other senior Texas officials have spent years trying to assert their state’s authority to police the border over that of the federal government. It’s partly a product of overheated right-wing rhetoric which casts illegal immigrants as an invading force, and partly a gambit to have the Supreme Court rewrite national immigration law. But the move to assert that authority has had real consequences: in one quixotic episode, Texas added state-level customs checks to cross-border freight, sparking shipping delays which ended in mounds of rotting fruit. Lawmakers in Texas passed a law last year giving state law enforcement the ability to arrest illegal immigrants, teeing up a legal challenge to a landmark Supreme Court case affirming federal authority over immigration enforcement.

The state has now spent years and more than $11 billion on Operation Lone Star, in which it’s had state law enforcement to arrest migrants on trespassing charges and the state national guard take up posts along the Rio Grande river with little to show for it. Under the program, state law enforcement and national guard members have also laid miles of concertina wire in areas regularly used by federal border patrol agents.

That’s where the current showdown begins.

Federal border patrol agents began to cut the wire near the small border town of Eagle Pass. Texas sued to block further cutting and, in December, the Fifth Circuit Court of Appeals sided with Texas against the Department of Homeland Security, issuing an emergency injunction barring the federal government from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas” as long as the appeal continues.

The Biden administration filed an emergency appeal of that ban to the Supreme Court this month, arguing that Texas was overriding a core function that the Constitution assigns to the federal government: protecting the border. The Supreme Court has yet to rule on the petition.

The Fifth Circuit injunction, however, did leave open an exception to when border patrol agents could cut state concertina wire: addressing medical emergencies.

After the Biden administration asked the Supreme Court to step in, however, Texas further upped the ante.

On Jan. 10, Texas law enforcement sealed off access to a 2.5 mile stretch of the border near Eagle Pass, officials said, blocking border patrol agents.

Since then, the Biden administration has said in Supreme Court filings, Mexican officials have made routine calls to U.S. border patrol alerting them to migrants in distress along the border. Texas’ blocking has stopped federal agents from being able to respond — and violated the terms of the injunction, Solicitor General Elizabeth Prelogar said.

“Even when there is an ongoing emergency of the type that the court of appeals expressly excluded from the injunction, Texas stands in the way of Border Patrol patrolling the border, identifying and reaching any migrants in distress, securing those migrants, and even accessing any wire that it may need to cut or move to fulfill its responsibilities,” Prelogar said in a Monday filing.

Prelogar said that Mexican authorities were forced to rescue two migrants in distress after federal agents were blocked from responding, but that the three who drowned did so before agents were blocked.

Rep. Henry Cuellar (D-TX) had given local news outlets the opposite timeline — the drownings taking place after federal agents were blocked. But the Biden administration’s position aligns with that put out by the state of Texas, which says that border agents were blocked after the drownings.

Apart from the human cost, the showdown over federal power at the border highlights how far the dehumanizing rhetoric which casts undocumented immigrants as a foreign invasion force has gone.

For Texas officials, it’s served in part as the basis for a legal theory which holds that the state can enforce the border on its own under the Constitutional right for each state to protect against an invasion. Texas Attorney General Ken Paxton (R) said last year that the state was acting partly out of a desire to “test” a 2012 Supreme Court ruling which affirmed that only the federal government could conduct immigration enforcement, but in which Justice Antonin Scalia appeared to lend some credence to the “invasion” argument.

“We’ve got the best chance we’ve ever had to overturn that and give the states the ability to protect their citizens, because if we can’t do it we leave our citizens unprotected in various ways,” Paxton told state lawmakers.