Texas governor doing 'exactly right thing' amid constitutional battle over border enforcement: legal experts

 The latest Supreme Court decision in Texas' battle with the Biden White House has set up a showdown over the Lone Star State's constitutional right to defend itself and the federal government getting in the way.

On Monday, in a 5-4 decision on an emergency appeal, the Supreme Court ruled to temporarily overturn a lower court injunction that prohibited the federal government from cutting the razor fence erected by Texas along the border near Eagle Pass. Did it while the trial was going on.

Late Wednesday night, Texas Governor Greg Abbott declared his constitutional right to reserve his state's right to self-defense against invasion, saying the executive branch had failed to enforce federal immigration laws. Has broken its constitutional agreement with the states.

Legal experts told Fox News that Digital Texas is within its constitutional rights and the Supreme Court's order to continue building the razor-wire fence, even if the federal government continues to cut it down before an appeals court addresses the case.

Gene Hamilton, vice president and general counsel of America First Legal and a former Justice Department official in the Trump administration, said Abbott's installation of razor wire is "absolutely the right move."

   "Until a federal judge comes and says, 'State of Texas, you can no longer put razor wire on the border,' Texas should keep doing what it needs to do. And, ultimately, it turns to a feds And the game of wills between the state of Texas,” Hamilton said.

Hamilton said he believed the Supreme Court's controversial order was wrong and gave too much weight to the government's claim about the impact of the wire on the federal government's ability to enforce immigration laws.

He insisted that Texas is not interfering with the government's enforcement of laws by building additional barriers at the border and argued that these barriers would actually facilitate the federal government's ability to prevent and restrict illegal crossings at those locations. Where they were present.

Hans von Spakovsky, senior legal fellow at the Edwin Meese III Center, said, "The Supreme Court's two-sentence order vacated an injunction preventing the federal government from tearing down barbed wire fences erected on state property while the case is appealed. But it is.” Legal and judicial studies reported for Fox News Digital.

   He said, "The Supreme Court's order does not prevent Texas from erecting barbed wire or other barriers along the border on state or private property. But while the case is pending, there is nothing to stop the federal government from tearing down the wire fence. " Said.

As to Abbott's Article 1 claim, von Spakovsky said that "Whether or not what is happening constitutes an 'invasion' within the meaning of the Constitution is a controversial and legally unsettled issue."

Article 1, Section 10, which Abbott says "arised" from Biden's inaction on the border, says, "No State shall, without the consent of Congress, perform any duty of tonnage, peace shall not maintain troops or ships of war during the , enter into any compact or agreement with another State, or with any foreign power, or engage in war, unless actually invaded, or in such imminent danger as to permit no delay."

Von Spakovsky said, "It is truly shocking and outrageous that the Biden administration has knowingly and knowingly mishandled the security of our southern border, causing states like Texas to feel the need to invoke the Invasion Clause for the first time in our history." happened."

He says that ultimately the Supreme Court will have to decide this matter.

In 2012, the Supreme Court decided a case against Arizona brought by the federal government, which had sued after Arizona gave state officials the authority to enforce immigration laws.

Arizona lost that case, but the late Justice Antonin Scalia dissented, writing that "As a sovereign, Arizona has the inherent power to exclude persons from its territory, except as expressed in the Constitution or constitutionally imposed by Congress." That power of exclusion has long been recognized as inherent in sovereignty."

William Lane, partner at Wiley Rein LLP and former DOJ official, suggested to Fox News Digital that the Supreme Court could eventually consider the Texas case on the merits or a number of other challenges between the states and the executive branch ongoing in the courts . If the Court wishes to decide, it may be asked to reconsider Justice Scalia's doctrine.

 

"A decade ago, the Supreme Court rejected Arizona's attempt to regulate immigration," Lane said. Justice Scalia dissented, arguing that the state has at least some power under the Constitution to control its borders. retain inherent rights."

 

He said, "The court has changed significantly since then, and it will be interesting to see if there is any willingness to revisit that decision as states like Texas attempt to address illegal immigration on their own."

 

"It should come as no surprise that Gov. Abbott has chosen to adopt Justice Scalia's doctrine of state sovereignty to defend Texas's actions."

South Texas College of Law professor Josh Blackman emphasized that the high court's Monday decision, as an emergency docket decision, was "too narrow."

"I think we're getting closer to that, until the Supreme Court says Texas will continue to push the boundaries of what Texas can and cannot do," Blackman said.

The Fifth Circuit Court of Appeals will hear on the merits of Texas' case over the Eagle Pass razor wire on February 7.