Supreme Court clears way for border agents to remove Texas wire barrier

The Supreme Court sided with the Biden administration on Monday and cleared the way for border patrol agents to remove razor wire that Texas officials installed along a busy stretch of the southern border until the legality of the barriers is resolved in court.

The case is one of several legal battles between Republican Texas Gov. Gregg Abbott and the Biden administration over the governor’s border crackdown, Operation Lone Star. It comes at a time of rising tension over how to handle hundreds of thousands of migrants who have entered the country illegally in recent months.

Even though immigration and border security matters are generally the purview of the federal government, Abbott has mobilized thousands of National Guard troops and lined the banks of the Rio Grande near Eagle Pass with razor wire to try to block illegal entries.

Earlier this month, federal officials said Texas National Guard personnel had blocked U.S. Border Patrol agents who were investigating reports of drowning migrants from a section of the Rio Grande where the state had placed the wire barriers. The bodies of three migrants, a woman and two children, were found in the river by Mexican authorities days later.

Texas sued the Biden administration last year to prevent agents from removing or cutting the wire barriers, which the federal government says prevent the agents from reaching migrants who have already entered U.S. territory.

A District Court judge sided with Texas in October finding the barriers limit illegal crossings that impose costs on the state. But the lower court later denied the state’s request to preliminarily block Border Patrol agents from accessing the international border or disturbing the barrier while the litigation continued.

Texas appealed that ruling to the U.S. Court of Appeals for the 5th Circuit, which issued a temporary order prohibiting Border Patrol agents from cutting, damaging or moving the barriers. The Biden administration then asked the Supreme Court to intervene on an emergency basis.

Solicitor General Elizabeth B. Prelogar urged the justices to “restore Border Patrol’s access to the border it is charged with patrolling and the migrants it is responsible for apprehending, inspecting, and processing.”

U.S. Customs and Border Protection officials have been overwhelmed by the volume of migrants crossing the U.S.-Mexico border. U.S. agents recorded nearly 250,000 illegal crossings along the southern border in December, the highest one-month total ever, according to preliminary CBP data obtained by the Washington Post.

The Biden administration told the justices last week that Texas officials had installed additional wire barriers that are preventing agents from accessing a boat ramp used to patrol a section of the river. The guard has installed its own gates with armed personnel to control entry to the area, the administration said.

In filing their response, Texas officials said they were unaware of the border patrol’s ongoing need to access the area and were investigating the claim. Republican Texas Attorney General Ken Paxton urged the Supreme Court to reject the Biden administration’s view of federal power and not to intervene before the 5th Circuit has an opportunity to fully considered the case.

“Defendants have claimed authority to destroy property that belongs to someone else based on their assurance that doing so is necessary to enforce federal immigration laws,” the state’s Solicitor General Aaron L. Nielson said in court filings.

Federal officials say the sharp barriers have maimed and bloodied migrants at several locations and pose a hazard to U.S. agents. After border-crossers used blankets and other garments to try to protect themselves from lacerations while crawling under or over the barrier, federal authorities cut a path through the wire to allow safe passage.

That prompted the Texas lawsuit, which accused the federal government of destruction of property and trespass.

The 5th Circuit order, the administration says, prohibits officers from carrying out their regular patrol and apprehension duties – and from intervening to prevent deadly situations, including drowning and death from hypothermia or heat exposure.

The order includes an exception that allows agents to cut the barrier in a medical emergency.

But the Justice Department said the exception is essentially meaningless in life-threatening situations because it can take 10 to 30 minutes to cut through the thick layers of wire.