In a recent Supreme Court decision, Texas’ battle with the Biden White House over border security has ignited a heated debate regarding the Lone Star State’s constitutional authority to defend itself against an invasion. The 5-4 decision on an emergency appeal temporarily lifted a lower court’s injunction, allowing the federal government to cut razor fencing installed by Texas along the border near Eagle Pass while litigation continues. This move has prompted Texas Governor Greg Abbott to assert his state’s right to self-defense and criticize the executive branch for failing to enforce federal immigration laws.
Legal experts argue that Texas is well within its constitutional rights to continue building the razor-wire fence, even if the federal government attempts to dismantle it. Gene Hamilton, vice president and general counsel at America First Legal, commends Abbott’s decision, stating that Texas should continue to defend itself until a federal judge explicitly prohibits the use of razor wire. Hamilton also criticizes the Supreme Court’s order, claiming that it gives too much weight to the government’s assertions about the wire’s impact on immigration law enforcement.
While the Supreme Court’s order vacated the injunction against tearing down Texas’ barbed wire fencing, it does not prevent the state from installing additional barriers along the border. However, the federal government can still remove the wire fencing while the case is pending. The question of whether Texas’ actions constitute an “invasion” under Article 1, Section 10 of the Constitution remains controversial and legally undetermined.
The Biden administration’s handling of border security has caused Republican governors, including Abbott, to rally behind Texas, invoking the invasion clause for the first time in history. Experts believe that the issue will ultimately be decided by the Supreme Court, with comparisons drawn to a 2012 case where Arizona lost after empowering state officials to enforce immigration laws. Justice Antonin Scalia, in his dissenting opinion, argued that states retain inherent power to control their borders.
Legal experts suggest that the Supreme Court may eventually revisit the issue of state sovereignty and border control, considering the changes in its composition since the 2012 case. The court’s recent ruling, seen as narrow and limited to emergency circumstances, may prompt Texas to push the boundaries unless the Supreme Court provides clear guidance on what the state can and cannot do.
The Fifth Circuit Court of Appeals is scheduled to hear the merits of Texas’ case on February 7th. This ongoing battle over border security highlights the tension between states’ rights and federal authority, with Texas leading the charge in asserting its constitutional authority to defend itself against what it perceives as an invasion.
