Biden’s Legal ‘Victories’ at the Border Are Losers for America
Dealing a double blow to Texas border security efforts, federal courts ruled last week that the Biden administration can take down the state’s razor wire fencing along the Rio Grande, and that river buoy barriers must be removed.
But the legal fight is far from over.
The razor-wire decision turned on a technical issue of whether the United States waived its sovereign immunity to legal challenge in that case. “The weight of precedent is that it did waive its sovereign immunity,” says Chris Hajec, director of litigation for the Immigration Reform Legal Institute (IRLI), FAIR’s affiliated legal organization.
Texas Attorney General Ken Paxton immediately appealed the decision.
Despite denying Texas’ claim, U.S. District Judge Alia Moses thrashed Washington’s arguments that the wire fencing interferes with the Border Patrol’s ability to perform its duties.
“The evidence presented amply demonstrates the utter failure of the defendants to deter, prevent, and halt unlawful entry into the United States. The [Biden administration] cannot claim the statutory duties they are so obviously derelict in enforcing as excuses to puncture [Texas’] attempts to shore up the [administration’s] failing system,” Moses wrote.
In the floating barriers case, there were two principal issues:
- Whether Texas violated an old statute called the Rivers and Harbors Appropriations Act.
- Whether Texas had a right to do so under the State Self-Defense Clause of the U.S. Constitution.
IRLI, joining the case, argued that the issues of whether a state has been invaded and what steps it may take in self-defense are both political questions, and that Texas’ exercise of direct constitutional power to defend itself in the specific circumstance of an invasion overrode a general law passed by Congress.
A three-judge panel of the Fifth Circuit Court of Appeal did not rule on the self-defense question, and instead remanded it for trial. Judge Dana Douglas — appointed to the court by President Joe Biden and writing for the majority — meantime reinstated a preliminary injunction against the barriers based on the court’s finding that Texas had violated the rivers and harbors statute.
“This was a victory of sorts,” Hajec said. “The panel did not deny anything we had said. The vital issues of the scope and consequences of the State Self-Defense Clause are still to be decided.”
While the legal wrangling continues, the Biden administration temporarily closed one of two international bridges at Eagle Pass, where Texas had placed its barbed wire and buoys. How ironic that Washington closes a legal border crossing while preventing Texas from shutting down illegal ones.
Acknowledging what everyone knows, the administration complained, “The U.S. is continuing to see increased levels of migrant encounters at the Southwest Border, fueled by smugglers peddling disinformation to prey on vulnerable individuals and encourage migration.” Sadly, the administration’s complaint is the real disinformation. Smugglers prey on migrants, but their assertion that our borders are wide open is absolutely true.
If Biden & Co. genuinely want to do something constructive, they would stop fighting Texas in court and join the state’s efforts to stanch the tide of illegal aliens.