The Supreme Court's latest parallel decision in Texas' battle with the Biden White House has sparked a showdown over the Lone Star State's constitutional authority to defend itself, with the federal government seemingly standing in its way.
On Monday, in a 5-4 decision in an emergency appeal, the Supreme Court ruled to temporarily overturn a lower court's injunction barring the federal government from cutting razor fences that Texas had installed along the border near of Eagle Pass as litigation continues.
Late Wednesday night, Texas Gov. Greg Abbott declared his constitutional authority under Article 1 to reserve his state's right to self-defense against invasion, adding that the executive branch has broken its constitutional compact. with states by failing to enforce federal immigration law. laws.
Legal experts told Fox News Digital that Texas is within its constitutional rights and within the Supreme Court's order to continue building the barbed wire fence, even if the feds continue cutting it, before an appeals court addresses the issue. matter on the merits. .
BORDER BATTLE LINES: OTHERS ASK FOR BID TO TAKE CONTROL OF TEXAS NATIONAL GUARD, AS GOP ALLIES BACK ABBOTT
Texas Governor Greg Abbott (Brandon Bell/Getty Images)
Gene Hamilton, vice president and general counsel of America First Legal and a former Justice Department official in the Trump administration, said Abbott continuing to install the razor wire is “exactly the right move.”
“Unless a federal judge comes along and says, 'State of Texas, you can no longer put razor wire along the border, Texas should continue doing exactly what it needs to do.' And eventually, this becomes a game.” of will between the feds and the state of Texas,” Hamilton said.
Hamilton noted that he believed the Supreme Court's controversial order was wrong and gave too much weight to the government's claims about the cable's effect on the federal government's ability to enforce immigration laws.
He asserted that Texas was not interfering with government enforcement by creating additional barriers along the border and argued that those barriers actually facilitate the federal government's ability to deter and prohibit illegal crossings where were present.
ABBOTT DECLARES TEXAS HAS 'RIGHT TO SELF-DEFENSE' AGAINST MIGRANT 'INVASION' AMID ENJOYMENT WITH BIDEN ADMINISTRATOR
Texas National Guard soldiers install razor wire along the border in an effort to prevent immigrants from crossing illegally into the country from Mexico. (Texas Governor Greg Abbott)
“The Supreme Court's two-ruling order simply overturned the court's injunction preventing the federal government from taking down the barbed wire fences that Texas has placed on state property while the case is on appeal,” said Hans von Spakovsky, senior legal researcher. from the Edwin Meese III Center. of Legal and Judicial Studies told Fox News Digital.
“The Supreme Court's order does not prevent Texas from continuing to place razor wire or other barriers along the border on state or private property. But while the case is pending, there is nothing stopping the federal government from tearing down the border fences. wire,” he said. saying.
Regarding Abbott's claims about Article 1, von Spakovsky said that “whether or not what is happening is an 'invasion' within the meaning of the Constitution is a controversial and legally indeterminate question.”
Article 1, Section 10, which Abbott said was “triggered” by Biden's inaction in the border states: “No State shall, without the consent of Congress, impose any tonnage duty, maintain troops or warships in time of peace, enter into any Agreement or Pact with another State, or with a foreign Power, or engage in a War, unless actually invaded or in such imminent Danger as to admit of no delay.”
“It is truly shocking and outrageous that the Biden administration has so willfully and deliberately mismanaged the security of our southern border that states like Texas, for the first time in our history, feel the need to invoke the invasion clause,” von Spakovsky said.
Ultimately, he says, the matter will have to be decided by the Supreme Court.
In 2012, the Supreme Court decided a case against Arizona brought by the federal government, which sued after Arizona empowered state officials to enforce immigration laws.
Arizona lost that case, but the late Justice Antonin Scalia disagreed, writing that “as sovereign, Arizona has the inherent power to exclude people from its territory, subject only to limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent to sovereignty.
REPUBLICAN GOVERNORS STAY BEHIND TEXAS AS ABBOTT CHALLENGES BID: 'RELIEF OF DUTY'
A U.S. Border Patrol agent monitors more than 2,000 migrants at a field processing center on December 18, 2023 in Eagle Pass, Texas. (John Moore/Getty Images)
William Lane, a partner at Wiley Rein LLP and a former Justice Department official, suggested to Fox News Digital that the Supreme Court could eventually consider the Texas case on the merits, or a host of other challenges between the states and the executive branch. that are filtering through the courts. If the Court decides to weigh in, it may be asked to reconsider Justice Scalia's theory.
“A decade ago, the Supreme Court rejected an attempt by Arizona to regulate immigration. Justice Scalia, dissenting, argued that states retain at least some inherent authority under the Constitution to control their borders,” Lane said.
“The Court has changed significantly since then, and it will be interesting to see if there is any desire to revisit that decision as states like Texas try to address illegal immigration on their own,” he said.
“It should come as no surprise that Governor Abbott has chosen to embrace Justice Scalia's theory of state sovereignty in defending Texas' actions,” he added.
CLICK HERE TO GET THE FOX NEWS APP
Josh Blackman, a professor at South Texas College of Law, emphasized that the high court's Monday ruling, as an emergency decision, was “very limited.”
But, he said, “I think what we're getting closer to is that unless the Supreme Court says what Texas can and can't do, Texas is overstepping the line.”
The Fifth Circuit Court of Appeals will hear the merits of the Texas case over the Eagle Pass barbed wire on February 7.
