SCOTUS Rules Border Agents Can Cut Texas Border Barriers - and They're Wrong

P. Gardner Goldsmith | January 23, 2024
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In the latest in a long train of transformations and usurpations of the US Constitution, a majority of the US Supreme Court late Monday, January 22, ruled that the US Border Patrol (USBP) can cut razor-wire and destroy other barriers that the Texas government has erected in order to prevent illegal immigrants from coming north from Mexico and into the state.

It’s an empty decision that likely will inspire many calls for a change both in the presidency and in the composition of the Supreme Court. But such a response misses the point. Such a response is akin to the indoctrinated reaction of an unjustly incarcerated man in a bleak prison cafeteria, who, rather than calling for his just liberation, hopes that the warden or the cafeteria staff might change, and feed him something slightly sweeter.

At the most basic level, the case is tragic and pits state interests against Biden policy-in-practice.

Amy Howe covers the timeline, for SCOTUSBlog:

"In response to an increase in the number of migrants (many of whom are seeking asylum) crossing the border into the United States, Texas installed rolls of razor-wire fencing along some stretches of the Rio Grande River, which forms the U.S. border with Mexico in the southern part of the state, last year. In October, the state went to federal court, where it argued that Border Patrol agents violated state laws when they cut or moved the fencing.

On Dec. 19, a federal appeals court (the 5th Circuit) in New Orleans issued an order that, except in cases of medical emergencies, temporarily barred (federal) Border Patrol agents from cutting or moving the wire in the area around the city of Eagle Pass.”

On January 2, Biden Administration Solicitor General Elizabeth Prelogar opposed that move, citing in the Supreme Court the need for the federal border bureaucracy very swiftly to reach in-distress river-crossers (and citing subsequent reports of drownings in the Rio Grande) as justification for its claim to be able to destroy the Texas barriers.

“The exception that the appeals created for medical emergencies is not enough, Prelogar insisted, because of the time that it takes to cut through the wires and the ‘very real’ ‘risk of death along this stretch of the river.’”

Of course, that directs attention away from what the Constitution actually says.

And the Texas argument also does not focus on the Constitution.

“Texas told the justices that there was no need for them to get involved in the dispute because the court of appeals has fast-tracked the case and is scheduled to hear oral argument on Feb. 7. But in any event, Texas dismissed the underlying premise of the Biden administration’s argument – that Border Patrol agents are carrying out their responsibilities under federal law when they move or cut the wire – as ‘false.’ To the contrary, Texas contended, as the federal district court in this case found, Border Patrol agents are not actually apprehending or processing migrants who cross through holes in the wire that the agents create. And more broadly, Texas concluded, the public interest favors not only respecting the state’s property rights, but also supporting efforts to combat the influx of ‘deadly fentanyl,’ human trafficking, and “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.’”

And the final Biden argument, which seems to have carried the day in the Supreme Court, also has absolutely nothing to do with the Constitution.

“In a filing on Jan. 12, Prelogar indicated that Texas had recently added new razor-wire barriers and fencing along the border and blocked access by Border Patrol agents to sites used to launch patrol boats on the river and for mobile surveillance. As a result, Prelogar wrote, agents are effectively barred ‘from accessing or getting near the border along this 2.5-mile stretch of the river’ and therefore ‘effectively prevented … from monitoring the border to determine whether a migrant requires the emergency aid that the court of appeals expressly excepted from the injunction.’ The Supreme Court, Prelogar argued, should lift the 5th Circuit’s order 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.’”

As Ms. Howe notes, yesterday saw Amy Coney Barrett and Chief Justice John Roberts join Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, splitting from conservatives Clarence Thomas, Sam Alito, Brett Kavanaugh, and Neil Gorsuch to grant Prelogar’s request to block the Fifth Circuit ruling and allow the feds to destroy Texas’s border barriers as the Biden BPS sees fit.

Related: Biden Is Challenging Texas in the Supreme Court Over Illegal Immigration

Thus, the situation has been thrown into chaos, seeing the Texas government and many of Texas' residents undercut by a federal establishment that repeatedly has been questioned for actually facilitating ingress, rather than stopping it.

But the systemic constitutional problems are just as important, and are obvious in their absence from this Supreme Court decision.

Space does not allow me to run through the entire discourse on the constitutional problem of believing the federal government is supposed to handle “the border,” but it is essential to spell out matters of extreme importance.

First, as I noted in more detail last week for MRCTV, the Founders left the matter of immigration to the states. The word “immigration” does not appear in the US Constitution. Many contemporary Americans see the power over naturalization that is granted to Congress in Article One, Section Eight, of the Constitution and conflate it with a power over immigration.

In his 1798 Kentucky Resolution Four, Thomas Jefferson reminded his contemporaries that the power to handle their immigration policies lay with the states. James Madison also made the same point.

In 1869, when Texas entered the union, the state constitution included a Bureau of Immigration, and it was not until an errant Supreme Court ruling in a case called “Chy Lung v Freeman” that a group of corrupt “justices” made-up a federal “power” over immigration.

The fight over that “one size must fit all” centralized power has raged ever since, and this new, leftist-majority decision allowing the feds literally to work AGAINST the constitutionally reserved purview of the Texas government merely shows us its most immediate, extreme manifestation.

Related: SCOTUS Inexplicably Re-Opens Texas Border Fence to Flood of Illegal Immigrants

It also reminds us of the warning about the Supreme Court that Robert Yates offered in 1788. Writing as “Brutus,” the wise “Anti-Federalist” (the term used for patriots who actually favored real federalism over the centralizing move by Alexander Hamilton and his allies to gather more power in the hands of the central US government under the Constitution) predicted: “…the supreme court under this constitution would be exalted above all other power in the government, and subject to no control.”

Exactly, and by extension, the federal government players who appoint those “justices” typically see the Supreme Court facilitate a continual expansion of central government power over our lives.

The patterns and pageantry of their offices, the titles and trappings of the court and the Congress, and the Presidency, are worthless. They are the ingredients of a thin, synthetic gruel no different than the “Victory Gin” Winston Smith drank as he embraced Big Brother. And in order to restore sense and constitutionality, we must break free from the mental prison in which decisions like this have caged us.

Texas’ government has the power to disregard this decision, to nullify it.

We will watch to see what the state government and Governor Abbott do.