Justice Barrett sides with Supreme Court liberals to allow federal agents to cut and remove Texas' razor wire border barriers

 January 27, 2024

Controversy erupted this past week when the Supreme Court issued an emergency order that sided with the Biden administration in a dispute against Texas over that state's effort to protect and secure the southern border from illegal incursions by migrants and traffickers with razor wire barriers.

In a shock to many observers, conservative-leaning Justice Amy Coney Barrett, along with Chief Justice John Roberts, sided with the court's three liberal justices to essentially allow federal agents to cut through and remove the razor wire barriers installed by Texas, Business Insider reported.

No analysis or explanation was given for the 5-4 emergency order that vacated an injunction imposed by the Fifth Circuit Court of Appeals that blocked federal agents from cutting or removing the wire, resulting in widespread speculation about why the justices ruled as they did.

The border enforcement dispute between Texas and Biden

Last year, in response to the Biden administration's nearly non-existent enforcement policies on the southern border, Texas stepped up with its own border security enforcement efforts that included the installation of razor wire barriers in certain high-traffic areas along the Rio Grande River, such as Eagle Pass in Texas, SCOTUSblog explained.

It wasn't long before U.S. Border Patrol agents began to cut and remove portions of the razor wire barriers to allow illegal migrants through so they could be processed and released into the interior of the U.S., which prompted Texas to file a lawsuit that eventually resulted in the injunction from the appeals court that barred the federal agents from interfering with Texas' border barriers, except in cases of medical emergencies.

The Biden administration then filed an emergency appeal to the Supreme Court and argued that the barriers erected by Texas, and the injunction prohibiting federal agents from cutting or removing it, prevented them from performing their normal duties and obligations -- an ironic argument, given that the initial reason for the barriers was the overt non-performance of normal duties and obligations by federal agents at the southern border.

Prior status quo restored after injunction vacated

As a result of the Biden administration's appeal, a brief unsigned order was issued on Monday that stated, "The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated."

The order added, "Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction," which served to reveal how Chief Justice Roberts and Justice Barrett had aligned themselves with the court's three liberals, Justices Sonia Sotomayor, Elena Kagen, and Ketanji Brown Jackson.

Looking past the immediate freakout over Barrett siding with the liberal justices, it is notable that this order from the high court does nothing more than return the situation to the prior status quo and does not specifically bar Texas from taking action on its own to defend the border, meaning Texas can still install its razor wire barriers and federal agents can once again subsequently cut and remove those same barriers.

Why did Barrett side with the liberal justices?

On Wednesday, TheBlazeTV host Glenn Beck spoke with Sen. Mike Lee (R-UT) about the Supreme Court's ruling and asked the senator to speculate on why Justice Barrett ruled the way that she did.

Lee seemed to offer two possible explanations, the first of which was that Barrett and Chief Justice Roberts, mindful of public perception of court partisanship, purposefully aligned themselves with the three liberals to undercut the narrative that they are beholden to always side with the party of the president who nominated them to the bench.

The conservative senator's other theory was that Barrett and Roberts merely adhered to the idea, bolstered by the U.S. Constitution and past precedent, that the federal government maintains jurisdictional supremacy over the individual states in terms of securing and defending the nation's southern border and the enforcement of border security and immigration laws.

That said, both Beck and Lee referenced a different section of the Constitution -- Article I, Section 10, Clause 3 -- that provides an exception for states to act independently of the federal government during times of "invasion" of their sovereign territory, with the "invasion" in this case being the daily flood of thousands of illegal migrants and illicit traffickers who are essentially waved across the border by federal agents to be processed and released instead of detained and deported.

It must also be noted that this legal fight between Texas and the Biden administration is not yet over, according to SCOTUSblog, as the Supreme Court's order only pertained to the injunction and the appeals court is scheduled to hear arguments on the merits by each side on February 7.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
© 2015 - 2024 Conservative Institute. All Rights Reserved.