Texas border showdown escalates

In a 5-4 order on Monday, the U.S. Supreme Court permitted Border Patrol agents to continue cutting through razor wire that Texas officials placed to prevent illegal immigrants from crossing the U.S.-Mexico border. The state had installed about 30 miles of concertina wire—a type of barbed wire rolled in large coils—near the small southwestern border city of Eagle Pass, Texas.

Though the justices did not explain their ruling, the decision effectively affirms—for now—an entrenched legal precedent giving the federal government sole responsibility for border security.

The ruling is a temporary triumph for the Biden administration while the legal dispute plays out. Texas and the federal government are locked in several other legal stalemates over the state’s actions at the border that will likely also make their way to the nation’s highest court.

Texas Attorney General Ken Paxton lambasted Monday’s decision. “The destruction of Texas’s border barriers will not help enforce the law or keep American citizens safe,” he said in a news release. “This fight is not over, and I look forward to defending our state’s sovereignty.” So far, Texas has spent more than $10 billion on Gov. Greg Abbott’s border security measures, collectively known as Operation Lone Star.

The ongoing dispute between federal and state authorities erupted again over a 47-acre public park that abuts the Rio Grande in Eagle Pass. State troopers blockaded the area with wire and erected a large sign stating in red letters: “Restricted area authorized entry only. No migrant processing at this location. Please proceed to the nearest port of entry for processing with U.S. Border Patrol.”

Federal officials claim the troopers are not allowing Border Patrol access to the park. The matter came to a head when the Department of Justice alleged that agents were not allowed to rescue a drowning mother and her two children on Jan. 12. Border Patrol later reported that the three migrants had already drowned by the time agents were notified of the emergency, but two other migrants were struggling in the water and rescued by Mexican authorities.

In another legal battle, the 5th U.S. Circuit Court of Appeals allowed Texas to keep a string of floating buoys afloat in the Rio Grande while it rehears a case over whether the state has the authority to erect the barrier aimed at deterring illegal crossings. A federal district judge ordered the state to remove the buoys last fall.

“The issue with Texas is, what is the proper relationship between the federal government and the state governments in respect to immigration?” said Josh Blackman, a South Texas College of Law Houston professor who focuses on constitutional law. Blackman pointed to the 2012 Supreme Court case, Arizona v. United States, when justices ruled Arizona’s law requiring police to check a person’s immigration status was unconstitutional. The decision affirmed the federal government’s supreme authority over immigration.

But that case didn’t resolve every immigration dispute. “There’s some open questions of whether states can make it a crime to violate federal immigration law,” Blackman said. He referenced Texas’ blockade of the park in Eagle Pass and the state’s new law allowing local judges to charge immigrants who cross the border illegally with a misdemeanor. The Justice Department is also challenging that law in court.

Texas claims these measures don’t interfere with the federal government’s power to enforce immigration law, arguing the Biden administration is doing little to prevent high numbers of crossings. Last month, illegal crossings topped 10,000 per day more than once.

Joshua Treviño, chief of intelligence and research at the nonprofit Texas Public Policy Foundation, repudiated claims that the state is acting unconstitutionally. “Texas is actually not trying to assert any kind of control over the border that is not fully 100 percent consonant with actual federal law. Federal law already prohibits illegal entry,” he said. “Federal law already mandates that you enter through a lawful port of entry. That’s all Texas is doing: attempting to see that federal law is followed.”

Treviño believes the justices came to the wrong conclusion in Arizona v. United States, and he hopes the Supreme Court will reconsider the precedent. “This is a question that’s overdue,” he argued. “We need a ruling that allows American states, American communities, and the American people at large to protect themselves.”

The legal row between Texas officials and the federal government isn’t likely to be resolved anytime soon, leaving communities like Eagle Pass in the lurch in the meantime. Democratic State Rep. Eddie Morales, who represents Eagle Pass, is tired of what he calls “political theater” meant to rile up potential voters.

“The local community, the constituents, are fed up with the current status, whether you’re an independent, Democrat, or Republican.” Morales told me. “I think every step taken by top state leadership here in Texas has shown that they have no real need to resolve this issue.”

Morales describes himself as a moderate to conservative Democrat, and believes an effective immigration solution must crack down on illegal crossings while providing pathways for more immigrants to fill labor shortages.

That starts with a temporary moratorium on admitting asylum-seekers, he said. Asylum hopefuls often spend everything they have to make the journey, exploited by smugglers along the way. And many don’t meet the criteria. Morales pointed to the 3 million cases pending in immigration court. “We’re in no condition as a country to continue to allow these migrants to come,” he said. “A direct humanitarian act on our part would be to make sure that we send a strong message to the migrants in Latin America and in Mexico.”

Republicans in the U.S. Senate have conditioned any further aid to Ukraine on strengthening border restrictions, and bipartisan negotiations are inching toward a proposal. But it is unlikely that a significant crackdown on asylum admissions will make it through Congress.

Morales argued the asylum pause should last until Congress passes comprehensive updates to the system, including expansions to worker visa programs. He wants to see Texas leaders included in these negotiations and conversations with Mexican and Central American leaders since immigration is so critical to the state’s economy. Instead, Texas is wasting taxpayer dollars on legal fees, he said, locked in a standoff with the federal government.

Morales’ Texas Migrant Processing and Jobs Plan, which he proposed last fall, would allow immigrants who pay a $2,000 entrance fee and a special state income tax to live and work in the Lone Star State for three years. “Any farmer, any rancher, and any developer or contractor in big cities will tell you that they have a need for these individuals,” he said. Morales is working with the legislative council to ensure the plan wouldn’t violate the Texas Constitution or wind up in legal trouble because of Arizona v. United States. Morales said Abbott has yet to acknowledge the proposal, which Morales views as an indication that he doesn’t “actually want to solve the issue.”

At both the state and national level, nothing will happen without compromise, Morales emphasized. “There has been a number of congressional legislation that has been filed to address this,” he said. “It has a solution.”