The Biden administration rushed to the Supreme Court on Tuesday to ask permission to slash through the razor-wire fence that Texas has erected along miles of the border with Mexico, saying it’s interfering with how the feds want to run the border.
A federal appeals court has ordered Homeland Security to stop cutting the fence except in cases where there’s an actual medical emergency.
But the Justice Department said that could take too long in real emergencies, and restricts the ability of Border Patrol agents to decide how and where they want to patrol the border.
“Under the Supremacy Clause, state law cannot be applied to restrain those federal agents from carrying out their federally authorized activities,” U.S. Solicitor General Elizabeth Prelogar wrote in asking the justices to erase the appeals court’s injunction.
Texas placed 110 miles of concertina wire on state and private property along the banks of the Rio Grande as a makeshift fence to try to deter illegal border crossings.
Homeland Security says the wire can leave migrants stranded in the river, risking injury. And it also prevents the feds from creating entry points for illegal immigrants where the agents want.
Border Patrol agents took to slashing through the wire, prompting Texas to sue.
A district court sided with the feds and denied an injunction, ruling that the federal government had sovereign immunity.
The 5th U.S. Circuit Court of Appeals disagreed and sided with Texas, issuing the injunction that bars Homeland Security from wire-cutting, except for emergencies, while the case continues to wind its way through court.
Judge Alia Moses, who denied the original injunction, said she found at least 14 instances of wire-cutting, many of which did not involve emergencies.
One she focused on occurred on Sept. 20 where agents cut new holes in concertina wire even though there was already a hole 15 feet away. Agents also dropped a climbing rope to help illegal immigrants surmount the banks of the Rio Grande.
A Border Patrol boat sat in the river observing the people but never attempting to interdict or question them or try to block them from coming. Instead, after the migrants reached U.S. soil, agents let the migrants walk a mile inland without any supervision, hoping they would go to a Border Patrol processing location to be officially arrested and processed.
In her appeal to the justices to erase the injunction, Ms. Prelogar said Homeland Security has long had the power to decide how to run the border, and states cannot meddle with that authority. That includes the ability to enter property without a warrant within 25 miles of the border.
“Indeed, if federal officials cannot cut concertina wire to access noncitizens on private land by the border, it would follow that any jurisdiction opposed to immigration enforcement — or even any individual property owner — could enclose a large area in order to impede federal agents from enforcing [immigration law],” the solicitor general wrote.ˇ
The razor wire is part of Texas Gov. Greg Abbott’s Operation Lone Star, which is an attempt to plug the gaps in border security he said President Biden has left with his lax approach to securing the boundary.
In addition to the razor wire, Texas is building its own border wall, has deployed state police to the border to make arrests under state law, and is busing illegal immigrants out to sanctuary cities in other states.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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