The Supreme Court says no, Texas can’t use razor wire to restrain federal agents

By a bare 5-4 majority, the Supreme Court reaffirms that federal law still applies to Texas.

One of the most well-settled questions in US constitutional law is that duly enacted federal laws overcome all state laws that conflict with them, and that states may not prevent federal officials from performing their official job duties.

This principle is written into the Constitution itself, which provides that federal law “shall be the supreme law of the land; and the judges in every state shall be bound thereby.” The Supreme Court has even held, in In re Neagle (1890), that states may not bring murder charges against a federal official who killed someone while performing his official duties.

Nevertheless, last month a federal appeals court reached the astonishing conclusion that the state of Texas may erect razor wire barriers to prevent federal border patrol officers from doing their jobs, and it ordered the border patrol not to cut these wires except in very limited circumstances. The decision was handed down by the United States Court of Appeals for the Fifth Circuit, a far-right court dominated by MAGA judges, that frequently hands down decisions that are wildly at odds with existing law.

On Monday, the Supreme Court handed down a very brief order in Department of Homeland Security v. Texas blocking this Fifth Circuit order. The order was decided in a 5-4 vote — which means that four justices appear to believe that Texas may use razor wire to restrain federal officials engaged in their official duties.

The four dissenters were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Chief Justice John Roberts and Justice Amy Coney Barrett, both Republican appointees, crossed over to vote with the Court’s three Democratic justices.

The Texas case arises out of that state’s attempt to limit border crossings in Eagle Pass, Texas by lining nearly 30 miles of the US-Mexico border with razor wire. Much of this wire is along a river bank where migrants sometimes cross into the United States.

This razor wire barrier, moreover, is one of several steps Texas’s government has taken to limit migration, often in defiance of the Biden administration and of federal law. Texas also enacted a law that will allow state judges to issue deportation orders, a power that belongs to the federal government. And it is engaged in another court fight regarding a floating barrier of buoys the state erected in the Rio Grande.

The immediate issue before the Supreme Court is not whether Texas is allowed to construct such a barrier against the wishes of the federal government, which is itself a doubtful proposition. The Supreme Court has long held that “the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution.”

Rather, the question in the Texas case is whether the state of Texas may obtain a court order forbidding federal agents from cutting the razor wire barriers when they need to do so in order to perform their official duties. In at least one instance, according to the Justice Department, an agent “saw an ‘unconscious subject floating on top of the water,’ but was ‘unable to retrieve or render aid to the subject due to the concertina wire barrier placed along the riverbank.’”

Nevertheless, the Fifth Circuit reached the flabbergasting conclusion that it should issue an order allowing Texas to block federal officials with razor wire.

Despite the Fifth Circuit’s decision, Texas’s arguments in favor of such an order are so weak that they border on frivolity. Again, the Constitution says explicitly that states must yield to federal law, and that they must permit federal officials to perform their duties when those officials’ actions are authorized by federal law.

And there’s simply no question that federal law permits border patrol agents to approach migrants entering the United States, even if they do so on non-public land. Among other things, federal law explicitly gives border patrol agents the power, without first obtaining a search warrant, to “have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”

So this case is a slam dunk for the federal government. And the only thing that should be surprising about the Court’s Monday order is that some of the justices dissented.