Biden administration asks SCOTUS to intervene in Texas concertina wire lawsuit

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The Biden administration appealed to the U.S. Supreme Court to intervene in one of its border lawsuits with Texas, one of several expected to eventually be ruled on by the nation’s highest court.

At issue is a lawsuit Texas filed against the Biden administration after Border Patrol agents destroyed concertina wire barriers erected on Texas soil by officials working through Gov. Greg Abbott’s border security mission, Operation Lone Star. As the case progresses before a federal district court, the Fifth Circuit last month handed Texas a win, issuing an administrative stay preventing the federal government from cutting, removing or destroying the wire, with few exceptions.

A separate federal lawsuit challenging Texas’ marine barriers is currently before the Fifth Circuit. In a third lawsuit, an Eagle Pass kayaking company sued over the marine barriers in a broader attempt to end OLS.

Because the federal government has abdicated its responsibility to secure the border and prevent illegal entry, Abbott maintains, he implemented OLS and several border security measures including erecting a range of barriers along the Rio Grande River. In response to some of the OLS efforts, the Biden administration ordered the destruction of the concertina barriers and sued over the marine barriers.

In a case that went through multiple rulings, the Fifth Circuit last month ultimately issued an injunction barring Border Patrol agents from cutting, removing or destroying the concertina barriers, with exceptions, in an area near Eagle Pass, Texas. After the ruling, Abbott said Texas will continue to hold accountable the Biden administration “for attacking Texas’ sovereign authority and their attempts to obstruct our border security efforts.”

On Tuesday, U.S. Solicitor General Elizabeth Prelogar, representing the federal government, asked the justices to intervene. According to court documents, she said the Fifth Circuit ruling has “serious on-the-ground consequences” because it prevents Border Patrol agents from apprehending foreign nationals after they crossed the Rio Grande River to illegally enter Texas between ports of entry. She said the Fifth Circuit’s ruling was “manifestly wrong” because it “prohibits Border Patrol agents from cutting or moving Texas’s wire barriers that physically block agents from accessing the international border and reaching migrants who have already entered U.S. territory.”

There are 29 ports of entry where foreign nationals can attempt to legally enter Texas, Abbott argues, more than any other state in the U.S. Border Patrol agents are also stationed along 1,250 miles of Texas’ shared border with Mexico.

If the Fifth Circuit’s injunction is allowed to stand, Prelogar argued, it 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.”

Abbott maintains that the federal government isn’t enforcing federal immigration laws, necessitating the need for OLS. From April 2021 to December 2023, Texas officers under OLS have apprehended more than 491,100 illegal foreign nationals and made more than 37,800 criminal arrests, with more than 34,300 felony charges. They’ve also seized more than 450 million lethal doses of fentanyl, enough to kill more than everyone in the U.S. and Canada.

“Every individual who is apprehended or arrested and every ounce of drugs seized would have otherwise made their way into communities across Texas and the nation due to President Joe Biden’s open border policies,” Abbot argues. The Texas Legislature has expressed support for Abbott’s efforts, having allocated over $11.5 billion to border security efforts for a four-year period.

On Wednesday, Abbott responded to a video posted by U.S. Rep. Matt Gaetz, R-Florida, showing Border Patrol agents cutting concertina wire. He said, if this video was taken on Jan. 3, “it means that the Biden Admin. is in direct violation of a current court order by the 5th circuit court of appeals prohibiting the border patrol from cutting the razor wire erected by Texas. If true, we will seek contempt of court.”

The high court on Wednesday gave Texas a deadline of Jan. 9 to respond to the administration’s application.

Justice Samuel Alito, the circuit justice for the Fifth Circuit, will first review the case.

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