Supreme Court Says Biden Admin Can Cut Texas's Border Wire Fencing

(John Moore/Getty Images)
January 22, 2024

The U.S. Supreme Court on Monday agreed to temporarily let U.S. Border Patrol agents cut or remove razor-wire fencing that Texas officials placed along part of the Republican-governed state's border with Mexico to deter illegal border crossings.

The justices, in a 5-4 decision, granted a request by President Joe Biden's administration to pause a lower court's ruling that temporarily blocked federal agents from disturbing the fencing while litigation over the issue proceeds.

Two conservative members of the court—Chief Justice John Roberts and Justice Amy Coney Barrett—joined the three liberal justices in the majority, with conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissenting.

The New Orleans-based 5th U.S. Circuit Court of Appeals, which issued the disputed interim ruling, is set to hear arguments on Feb. 7 over whether Border Patrol agents violated Texas law by cutting the razor-wire barrier.

The fencing at issue in the dispute was installed on private property along the Rio Grande river by the Texas National Guard as part of what was called Operation Lone Star, launched by Republican Texas governor Greg Abbott in 2021 to deter illegal border crossings.

Texas sued the administration in October 2023 over what it said was an intensified practice by U.S. Customs and Border Protection agents of cutting, destroying, or otherwise damaging fencing that the state had strategically placed on private land with the permission of landowners.

U.S. District Judge Alia Moses, while criticizing the Biden administration for its "utter failure" to prevent unlawful entries into the United States, ruled in November that the legal claims made by Texas could not overcome the federal government's sovereign immunity in the case. Such immunity protects the federal government from civil lawsuits and criminal prosecution.

After Texas appealed, the Fifth Circuit on Dec. 19 granted the state's request to temporarily block federal agents from "damaging, destroying or otherwise interfering with" the razor-wire fencing while the case played out, except "if necessary to address any medical emergency."

The Fifth Circuit in its ruling said Moses misinterpreted a law granting the U.S. government immunity from some legal claims by states, and that Texas was likely to prevail in its lawsuit.

The Biden administration, in a Jan. 2 court filing, urged the justices to halt the Fifth Circuit's ruling, saying there was no indication that the wire had deterred migrants from crossing into the United States. In a subsequent Jan. 12 filing, the administration said Texas had set up new barriers along part of the state's border with Mexico that impeded the ability of Border Patrol agents to monitor and respond to emergencies.

Republicans have sharply criticized Biden's immigration policies and the flow of illegal entries across the U.S. border with Mexico—an issue certain to heat up ahead of the Nov. 5 election in which the Democratic president is seeking another four years in office.