The latest shadow Supreme Court decision in the Texas-Biden race has set off a showdown over the lone star state's constitutional right to self-defense as the federal government appears to stand in the way.
On Monday, the Supreme Court in a 5-4 decision on an emergency appeal overturned a lower court's ruling barring the federal government from cutting razor-edge fencing that Texas installed along the border near Eagle Pass while litigation continues. The court issued a judgment temporarily revoking the suspension order.
Late Wednesday night, Texas Gov. Greg Abbott declared the state's constitutional authority under Article I to reserve the right to defend itself against invasion and the executive branch's failure to enforce federal immigration enforcement. He added that by doing so, he had broken constitutional agreements with the states. law.
Legal experts told Fox News Digital that Texas is within its constitutional rights and that the federal government will continue building the razor wire fence before an appellate court will consider the issue on the merits. He said it was within the scope of the court's order.
Border front: Republicans back Abbott, Democrats call on Biden to take control of Texas National Guard
Texas Governor Greg Abbott (Brandon Bell/Getty Images)
Gene Hamilton, vice president and general counsel at America First Legal and a former Justice Department official in the Trump administration, said Abbott's continued installation of razor wire is “exactly the right thing to do.”
“Unless a federal judge comes along and says, “Texas, you can't put any more razor wire along the border,'' Texas should keep doing exactly what it's supposed to do. And ultimately, this is a game. It's a will between the Fed and the state of Texas,” Hamilton said.
Abbott declares Texas has 'right to defend itself' against immigrant 'invasion' amid feud with Biden administration
Hamilton said he believes the controversial Supreme Court order is wrong, giving too much weight to the government's arguments about the power lines' impact on the federal government's ability to enforce immigration law.
He argued that Texas is not hindering the government's law enforcement efforts by building additional barriers along the border, and that these barriers actually deter illegal border crossings where there is a federal presence. It claimed to be promoting the ability to ban.
The Texas National Guard has installed razor wire along the border to deter illegal entry from Mexico. (Texas Governor Greg Abbott)
“The Supreme Court's two-sentence order requires the state of Texas to tear down the barbed wire fence it has erected on state property while the federal government appeals,” said Hans von Spakovsky, senior legal fellow at the Edwin Mies III Center. It simply revoked the injunction that prevented it from happening.” a law and justice studies researcher told FOX News Digital.
“The Supreme Court's order does not prevent the state of Texas from continuing to erect barbed wire and other fencing at state lines and on private property. However, while the case is pending, the federal government will not be able to take down the barbed wire.” There's nothing stopping us from doing that,” he said. He said.
Regarding Abbott's Article I claim, von Spakovsky said, “Whether what is happening is a 'trespass' within the meaning of the Constitution is debatable and legally an open question. There is,” he said.
Article I, Section 10, which Abbott said Biden's inaction at the border “triggered,” states: “No nation shall impose tonnage obligations in times of peace without the consent of Congress.” “No country shall possess an army or warships.'' We shall not enter into treaties or treaties, or wage war with other countries or foreign powers, unless we are actually invaded or there is imminent danger that we cannot afford to delay. ”
Republican governors rally behind Texas as Abbott accuses Biden of 'dereliction of duty'
“The Biden administration has intentionally and deliberately mishandled the security of our southern border, leading states like Texas to feel the need to invoke the invasion clause for the first time in our nation's history,” von Spakovsky said. This is truly shocking and outrageous.”
Ultimately, he says, the issue will need to be decided by the Supreme Court.
In 2012, the Supreme Court decided a lawsuit brought by the federal government against Arizona after the state authorized state authorities to enforce immigration laws.
Although Arizona lost that case, the late Justice Antonin Scalia dissented, stating that “Arizona, as a sovereign nation, is subject only to the limits expressly written in the Constitution or constitutionally imposed by Congress.'' “It has an inherent power to exclude people from its territory, subject to the following conditions. That power.” Exclusion has long been recognized as inherent to sovereignty. ”
U.S. Border Patrol agents monitor more than 2,000 migrants at a field processing center in Eagle Pass, Texas, on Dec. 18, 2023. (John Moore/Getty Images)
William Lane, a partner at the law firm Wiley Lane and a former Justice Department official, told Fox News Digital that the Supreme Court could eventually consider the Texas case on its merits, or that the court could see through. He suggested that many other issues between the states and the executive branch could be considered. If the court chooses to consider it, it could be required to reconsider Justice Scalia's theory.
“Ten years ago, the Supreme Court rejected Arizona's attempt to regulate immigration. Justice Scalia dissented, arguing that each state retains at least some inherent constitutional authority to control its borders. ,” Lane said.
“The court has changed significantly since then, and it will be interesting to see whether there is a willingness to reconsider its decisions as states like Texas attempt to deal with illegal immigration on their own,” he said. It will happen,” he said.
“It is 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 the South Texas College of Law, emphasized that Monday's high court decision was “very narrow” as an emergency document decision.
But he said, “What we're getting closer to is unless the Supreme Court makes clear what Texas can and can't do, Texas is going to push the envelope.” .
The Fifth Circuit Court of Appeals is scheduled to hear the merits of the Texas lawsuit over Eagle Pass razor wire on February 7th.
