The Collapse of Law at Our Border

National Review Online

Thursday, January 25, 2024

 

The Supreme Court has spent much of the Biden administration telling the president and his agencies to stop doing things that aren’t their job, such as regulating apartment evictions, mandating vaccines for workers, and declaring student-loan amnesties unapproved by Congress. But not every problem of flouting the law has a straightforward courtroom solution.

 

When the president refuses to do things that are his job, the remedy isn’t always to be found with the courts. Moreover, when major constitutional questions are at stake, the courts are rightly cautious about intervening on the basis of fast-moving emergency requests.

 

With the administration refusing to detain or expel illegal entrants to the country, the burden has fallen hardest on border states such as Texas. In response, Governor Greg Abbott launched Operation Lone Star, undertaking to protect his state’s sovereignty with its own resources. Among other things, Texas constructed barriers on state and private land. The barriers include concertina wire, a form of coiled razor wire. This is controversial precisely because it is effective.

 

Outrageously, the federal government has treated Texas, not the flood of illegal migrants, as the problem. Border Patrol agents have been caught on video destroying sections of the wire in order to let migrants pass through, without any effort to question or detain them. This is an open conspiracy to subvert federal law, seemingly emanating from the top of the executive branch — as illustrated by the Justice Department’s tenacious defense of the practice in court.

 

Texas countered by suing the Department of Homeland Security, Secretary Alejandro Mayorkas, and the Border Patrol, arguing that they were trespassing and destroying property in violation of Texas law. The suit raised a number of complex issues of sovereign immunity, federal preemption of state law, the scope of the Border Patrol’s powers, and the power of courts to enjoin federal immigration-enforcement actions. In December, the U.S. Court of Appeals for the Fifth Circuit issued a temporary injunction to prevent the federal government from destroying more wire while the appeal was pending. Texas’s request for more permanent relief is scheduled to be argued before the Fifth Circuit on February 7.

 

The Biden administration went to the Supreme Court on January 2 and asked it to lift the temporary injunction. On Monday, the Court granted the request, leaving the Border Patrol free to keep destroying wire until the Fifth Circuit rules.

 

The Court’s 5-4 decision lifting the injunction was issued without an opinion, and without a written dissent. Chief Justice John Roberts and Justice Amy Coney Barrett both voted with the liberals to lift the temporary injunction, while the other four conservatives would have left it in place. This has led to an explosion of anger at Roberts and Barrett.

 

We might have sided with the dissenters, and it would have been better if the justices on both sides had explained their thinking. But we can think of a number of reasons why the justices may have ruled as they did. The case is a complex one, and could require the Court to revisit aspects of its 2012 decision finding that plenary federal powers over immigration preempted Arizona laws on illegal entrants. The Court was inundated with dueling factual contentions by Texas and the administration, including the solicitor general claiming that the razor wire was impeding the Border Patrol from enforcing the law. The Supreme Court is poorly situated to resolve those disputes on the fly.

 

True, the Court could have stayed out of the issue and left the Fifth Circuit ruling in place, but Roberts and Barrett may have felt that the lower court needed to hear these arguments and resolve them in more detail. Barrett in particular has been sensitive to criticisms that the Court decides too many portentous questions in summary fashion without full briefing and argument. Also, this is not the last word: The Fifth Circuit can still rule on the Texas lawsuit soon.

 

The underlying problem of a rogue administration discarding federal law is one that cannot be solved by piecemeal federal court orders around the margins. Congress has the power of the purse, oversight hearings, and impeachment as remedies. Abbott is escalating the issue by invoking his authority to repel invasions — a further crisis engendered by this administration’s dereliction of duty. The voters, too, will judge Biden’s fidelity to his oath to enforce the law before the year is out. Among the questions they will be asked is whether we can afford to let law fall silent at the border.