Supreme Court allows Biden administration to open Texas border barrier

 January 23, 2024

The U.S. Supreme Court ruled on Monday to allow the Biden administration to open Texas’s border barrier, reversing an appeals court ruling that had stopped the administration from doing so and kept Texas’s solution in place.

The barrier of concertina wire is Texas’s way to keep at least some illegal immigrants from coming across the border in what state leaders consider the abdication of responsibility by federal policy.

In addition, Texas wants to keep illegal fentanyl and terrorists from coming into its territory.

The ruling is a temporary stay, but could signal how an eventual case will go.

Texas vs. Border Patrol

It seems that the disagreement is not over the barrier itself, but over whether U.S. border agents are allowed to cut the wire in an emergency without notifying the state.

Texas agrees that Border Patrol can cut the wire for emergencies, but Border Patrol has been cutting it for other reasons, which led Texas to sue claiming trespass and violation of the Administrative Procedure Act.

Ironically, Attorney General Merrick Garland claimed immunity and tried to dismiss the case, but the appeals court based in New Orleans rejected that argument under Section 702.

The appeals court rejected all of the DOJ’s arguments about the case and found that Border Patrol exceeded its authority by cutting the wire for other reasons than a “medical emergency, inspection or detention.”

“The public interest supports clear protections for property rights from government intrusion and control,” it wrote.


Many were surprised by the Supreme Court’s stay of the injunction, which came 5-4 with Chief Justice John Roberts and Justice Amy Coney Barrett joining the liberal wing of the court.

Even if the court ultimately rules in Texas’s favor, the damage could already have been done, although cutting the concertina wire to allow a huge stream of illegal immigrants to enter through the resulting hole is not a likely scenario.

At this point, it seems that Texas is quibbling with Border Patrol about a small matter that doesn’t have a large impact on the overall situation.

The decision could have an impact on future decision-making, however, by determining whether the federal government or a state has precedence.

Until then, the federal government has the advantage and can act as they wish with regard to Texas’s border wire.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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