WASHINGTON—In an important victory, the Fifth Circuit Court of Appeals has ordered Border Patrol to cease trespassing on Texas’s chattels by cutting the razor-wire the state has put on the border to block illegal entries. The Immigration Reform Law Institute (IRLI) had submitted a brief to the court urging that result.
The Biden Administration claimed that the barriers are preempted under the Supremacy Clause because they interfere with Border Patrol’s efforts to let illegal aliens in. IRLI pointed out, however, that mere executive policies—especially ones, such as these, that violate federal law—have no preemptive force. Also, Texas, as a sovereign state, has the inherent authority to protect its territory in a way congruent with federal law. And the barriers here are not inconsistent with federal law, but rather are an effective means of advancing Congress’s purpose, in that law, of stopping illegal immigration.
IRLI also showed that Texas’s razor wire cannot be preempted because of the state’s constitutional power to make war if invaded—as Texas has been invaded by the trafficking cartels. And how Texas chooses to defend itself is not subject to the control of the federal government. As the Constitution puts it, an invaded state may “engage in War” even “without the consent of Congress.”
In its ruling blocking the wire-cutting, the court agreed, making short work of the administration’s preemption argument and concluding that there is no “conflict between federal law and Texas’s assertion of property rights.”
Hailing the ruling, Texas Governor Abbott vowed to go on building razor wire barriers, which are very effective at stopping illegal entries, and which the court’s ruling now protects.
“As the Biden Administration fades out and the Trump Administration begins, Texas and other states will have a big role in helping Trump end the illegal immigration crisis,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The task will be a mammoth one, and we are pleased that large-scale assistance at the state level has been put on a stronger legal foundation by this ruling.”
The case is Texas v. DHS, No. 23-50869 (Fifth Circuit).
