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Biden WH Asks SCOTUS to Allow Fed Removal of Texas’s Razor Wire at Border

A lower court's injunction is currently blocking federal agents from removing the razor wire.

U.S. Border Patrol agents lift children through razor wire as families cross the Rio Grande from Mexico into the United States on September 28, 2023, in Eagle Pass, Texas.

The Biden administration has filed an emergency appeal asking the U.S. Supreme Court to lift a lower court injunction that is blocking the federal government from removing razor wire that Texas set up along the U.S.-Mexico border to deter asylum seekers.

The motion from the Department of Justice (DOJ), which was filed on Tuesday, expedites the process for having an injunction lifted by the Supreme Court. While such requests are not typical, they aren’t unheard of, particularly regarding matters in which a faster response is necessary for national security purposes.

Last fall, at the order of Republican Gov. Greg Abbott, Texas placed 29 miles of razor wire along the Texas side of the Rio Grande River in order to deter migrants from crossing into the state from Mexico — an action that is likely in violation of international law and which has resulted in numerous migrants being injured. U.S. Border Patrol agents began cutting the wire but were told to stop after a lower court ruled that the state hadn’t erred in its actions, after which the Fifth Circuit Court of Appeals placed a stay on Border Patrol’s plan to continue removing the wire.

Texas has implemented several similar wire barriers to deter migrants from crossing the river, including a system of floating buoys that have razor wire on them. At least one internal email from a Texas state trooper describes the governor’s strategy as “inhumane,” and there have been countless reports of migrant children being ensnared and slashed by the wire. In August, two asylum seekers were found dead in the Rio Grande by the razor wire, which one Texas lawmaker later condemned as a “death trap.”

While the Fifth Circuit Court of Appeals has ruled against Texas’s claims that the floating buoys should remain, the appeals court has allowed razor wire barriers to remain on land.

The appeal to the Supreme Court from the DOJ argues that Texas’s claims (and the lower courts’ actions affirming them) require the federal government to yield to the states on issues of immigration, in direct contradiction to the framework set up by the U.S. Constitution.

“The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law,” the federal government’s brief to the Court states. “If accepted, the court’s rationale would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”

The Biden administration said in their motion that there could be “serious on-the-ground” consequences for migrants if the order isn’t reversed, but largely centered its arguments on protecting Border Patrol personnel, telling the High Court that the Fifth Circuit’s actions could make it more difficult for agents to detain and imprison migrants.

“The injunction prohibits agents from passing through or moving physical obstacles erected by the State that prevent access to the very border they are charged with patrolling and the individuals they are charged with apprehending and inspecting,” the motion from the DOJ says.

In addition to this latest action by the Biden administration, the Justice Department has alerted Texas that it will sue in other matters relating to the state’s efforts to circumvent U.S. immigration policy. In late December, for example, a White House official warned Texas that proposed legislation that would authorize state and local law enforcement to arrest migrants and allow state judges to decide whether to deport them was “an extreme law that will make communities in Texas less safe.” The DOJ has vowed to block the bill if it becomes law.

This proposal, as well as other actions already taken by Texas, are deeply unconstitutional, immigration rights attorneys have said.

“Governor Abbott’s efforts to circumvent the federal immigration system and deny people the right to due process is not only unconstitutional, but also dangerously prone to error, and will disproportionately harm Black and Brown people regardless of their immigration status,” said Anand Balakrishnan, senior staff attorney at the ACLU’s Immigrants’ Rights Project, in a statement last month.

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