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US asks Supreme Court to step in on Texas border barrier

Razor wire along Rio Grande part of broader border policy clash between Lone Star State and Biden administration

The Supreme Court building.
The Supreme Court building. (Al Drago/CQ Roll Call file photo)

The Justice Department asked the Supreme Court on Tuesday to intervene in its ongoing fight with Texas over border policy and immigration laws and allow border agents to remove razor wire on the Texas side of the Rio Grande river.

The application asked the justices to set aside an order from the U.S. Court of Appeals for the 5th Circuit that barred U.S. Border Patrol agents from removing wire the state had placed along a 29-mile stretch of the river.

The DOJ told the Supreme Court that Border Patrol agents have a federal responsibility to assist migrants in need of medical aid and arrest those who cross the border at Eagle Pass — regardless of Texas state policy.

And the government said Texas cannot use a state tort law to restrain federal Border Patrol agents carrying out their federal duties.

“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 application states.

The Justice Department argues that federal law gives Border Patrol agents authority to enter any private lands within 25 miles of an international border to “interrogate” and “arrest” anyone who crosses the border illegally, the application said. To carry out those duties, federal agents can access land along the Rio Grande, the application said.

The application also noted that federal law has won out over state law before, such as when the U.S. Court of Appeals for the 9th Circuit threw out a California law that barred for-profit immigration detention centers.

The application pointed out that the exemption in the law for medical emergencies may be useless since it could take as much as half an hour for agents to cut through the razor wire and reach anyone in need of aid.

Tuesday’s application is the latest turn in a monthslong legal battle over Texas’ use of razor wire and buoys to block the border with Mexico, which includes a separate suit brought by the DOJ alleging Texas’ activities violate federal law.

The case involved in Tuesday’s application started when Texas sued the Biden administration earlier this year, alleging Border Patrol agents had violated state law when they cut the razor wire to assist migrants in crossing the border.

After entering a brief injunction against the Biden administration, Judge Alia Moses of the U.S. District Court for the Western District of Texas ruled in favor of the Biden administration in November.

Texas appealed the decision to the 5th Circuit, which last month enjoined the Biden administration from having agents cut the wire while the case plays out in court.

Texas Gov. Greg Abbott had state officials install the wire and buoys as part of Operation Lone Star, a state-based effort that officials claim is meant to counter illegal immigration and drug trafficking.

The operation, which has become part of broader Republican pushback against Biden administration border policy, has drawn challenges from the DOJ particularly for the installation of buoys in the river and razor wire at Eagle Pass.

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