News

Did Supreme Court Side with Biden Administration on Removing Razor Wire from Texas-Mexico Border?

The 5-to-4 ruling temporarily gives the U.S. Border Patrol permission to cut and move the razor wire installed along the border by the state of Texas.

Published Jan 23, 2024

Updated Jan 25, 2024
 (John Moore / Getty Images)
Image Via John Moore / Getty Images

On Jan. 22, 2024, the U.S. Supreme Court issued a ruling allowing U.S. Border Patrol agents to cut and move concertina wire, commonly called razor wire, set up by the state of Texas along the Mexican border. The razor wire was one of several barriers installed along the banks of the Rio Grande to deter illegal immigration, but according to the appeal filed by the Department of Homeland Security (DHS), the razor wire has prevented Border Patrol agents from doing their jobs.

The state of Texas sued the DHS for altering the barriers in late 2023, and a federal circuit court of appeals barred Border Patrol agents from cutting or moving the razor wire. This appeal to the Supreme Court overturned that decision, allowing the Border Patrol to alter the barrier. Here's what you need to know about the situation:

Operation Lone Star

In 2021, Texas Gov. Greg Abbott announced Operation Lone Star, an initiative aimed at stopping immigrants from entering the country without legal permission. As part of the initiative, he declared states of emergency in counties on the southern border, sent in the Texas National Guard and created the "Texas Tactical Border Force," and increased the presence of physical barriers like the razor wire and buoys with what U.S. Rep. Joaquin Castro called "chainsaw devices."

The program has been controversial since it began, and there have been ongoing debates about the legality of many aspects of Abbot's initiative. In July 2023, The Texas Tribune reported that the Mexican government sent a letter to the United States complaining about the barriers installed on the Texas border.

Many of the complaints about the program revolve around safety, with critics claiming that the barriers are incredibly dangerous and have led to unnecessary injuries and deaths. According to a report from Human Rights Watch, between March 2021 and July 2023, "at least 74 people were killed and another 189 injured as the result of 49 pursuits by Texas troopers or local law enforcement, or both, in Operation Lone Star counties."

The Lawsuit

The injuries caused by these barriers have led to tricky situations for U.S. Border Patrol agents, who, by federal law, are allowed to access private property within 25 miles of the international border without a warrant. According to a report in SCOTUSBlog, Border Patrol agents cut and moved the razor wire installed by the Texas government, in order to apprehend and administer first aid to migrants. In response, Texas sued the federal government on the grounds that the agents had violated Texas state law by cutting or moving the wire.

On Dec. 19, 2023, the 5th U.S. Circuit Court of Appeals, which handles cases in Texas, Louisiana and Mississippi, issued an order preventing Border Patrol agents from tampering with the razor wire except in cases of medical emergency. On Jan. 2, 2024, the Biden Administration asked the Supreme Court to review the decision, arguing that the razor wire prevented Border Patrol agents from performing their normal duties and that accepting the 5th Circuit Court's ruling meant that Texas state law would take precedent over federal law.

The appeal was submitted to the Supreme Court's emergency docket, also called the shadow docket, which operates a bit differently from how the American public generally thinks about the Supreme Court's rulings. An emergency docket ruling will uphold or strike down a decision temporarily while appeals proceed through the lower courts, but because it is (historically) reserved for time-pressing matters, the court does not hear an oral argument, nor does it always explain the rationale for its decision.

The Decision

This is one of those cases where the court did not provide much explanation. The entire ruling reads:

The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.

It was a 5-4 vote. Chief Justice John Roberts was joined by Justices Sotomayor, Kagan, Barrett and Jackson in the decision. Only Sotomayor, Kagan and Jackson are considered liberal justices.

This decision temporarily allows the Border Patrol agents to continue cutting and moving the razor wire installed by Texas. However, since the ruling came through the emergency docket, the case is now passed back down to the lower court, who will hear the case with oral arguments.

Ken Paxton, Texas's Attorney General, issued a statement after the ruling was announced: "Although the Supreme Court has permitted the continued destruction of Texas’s border security measures, this appeal remains ongoing, and the Office of the Attorney General will argue the case in front of the Fifth Circuit on February 7."

In the wake of the decision, Abbott doubled down, announcing that the Texas National Guard would continue putting up razor wire. GOP governors from across the country announced their support for his actions.

You can review all of the documents involved in the Supreme Court's decision here.

Sources

9395 and 194. The Supreme Court ‘Shadow Docket’ | Brennan Center for Justice. 8 Dec. 2020, https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket.
Abdelfatah, Rund, et al. “The Supreme Court’s Shadow Docket.” NPR, 2 Nov. 2023. NPR, https://www.npr.org/2023/11/02/1198908186/throughline-draft-11-02-2023.
Attorney General Ken Paxton Responds to SCOTUS Ruling on Concertina Wire Case | Office of the Attorney General. https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-responds-scotus-ruling-concertina-wire-case. Accessed 23 Jan. 2024.
Bach, Noah Alcala. “Mexico Files Diplomatic Complaint over Gov. Greg Abbott’s Floating Border Barriers.” The Texas Tribune, 15 July 2023, https://www.texastribune.org/2023/07/15/mexico-border-buoys/.
Cole, Devan. “Supreme Court Allows Biden Administration to Remove Razor Wire on US-Mexico Border in 5-4 Vote | CNN Politics.” CNN, 22 Jan. 2024, https://www.cnn.com/2024/01/22/politics/supreme-court-texas-razor-wire/index.html.
“Court Allows Border Patrol to Cut Texas’ Razor Wire along Rio Grande.” SCOTUSblog, 22 Jan. 2024, https://www.scotusblog.com/2024/01/court-allows-border-patrol-to-cut-texas-razor-wire-along-rio-grande/.
Downey, Renzo. “Gov. Greg Abbott Focuses on Border Security in First Address since Allen and Brownsville Tragedies.” The Texas Tribune, 8 May 2023, https://www.texastribune.org/2023/05/08/abbott-title-42-press-conference-allen/.
Hernandez, Emily. “What Is Operation Lone Star? Gov. Greg Abbott’s Controversial Border Mission, Explained.” The Texas Tribune, 30 Mar. 2022, https://www.texastribune.org/2022/03/30/operation-lone-star-texas-explained/.
“Https://Twitter.Com/JoaquinCastrotx/Status/1689015922202132480.” X (Formerly Twitter), https://twitter.com/JoaquinCastrotx/status/1689015922202132480. Accessed 23 Jan. 2024.
Liptak, Adam. “Supreme Court Backs Biden in Dispute With Texas Over Border Barrier.” The New York Times, 22 Jan. 2024. NYTimes.com, https://www.nytimes.com/2024/01/22/us/politics/supreme-court-texas-border-barbed-wire.html.
Prelogar, Elizabeth B. APPLICATION TO VACATE THE INJUNCTION PENDING APPEAL ENTERED BY THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. 2 Jan. 2024, https://www.supremecourt.gov/DocketPDF/23/23A607/294669/20240102145055112_23A%20DHS%20v.%20Texas%20app.pdf.
“‘So Much Blood on the Ground.’” Human Rights Watch, Nov. 2023. Human Rights Watch, https://www.hrw.org/report/2023/11/27/so-much-blood-ground/dangerous-and-deadly-vehicle-pursuits-under-texas-operation.
Staff, Al Jazeera. “Operation Lone Star: All You Need to Know about Latest US Border Flashpoint.” Al Jazeera, https://www.aljazeera.com/news/2023/8/9/operation-lone-star-all-you-need-to-know-about-latest-us-border-flashpoint. Accessed 23 Jan. 2024.
“Supreme Court Allows Border Agents to Remove Razor Wire in Texas.” POLITICO, 22 Jan. 2024, https://www.politico.com/news/2024/01/22/supreme-court-allows-border-agents-to-remove-razor-wire-in-texas-00137059.
“Supreme Court Allows Federal Agents to Cut Razor Wire at US-Mexico Border.” Al Jazeera, https://www.aljazeera.com/news/2024/1/23/supreme-court-allows-federal-agents-to-cut-razor-wire-at-us-mexico-border. Accessed 23 Jan. 2024.
Totenberg, Nina. “The Supreme Court and ‘The Shadow Docket.’” NPR, 22 May 2023. NPR, https://www.npr.org/2023/05/22/1177228505/supreme-court-shadow-docket.

Updates

Jan. 24, 2024: This story was updated to add additional information about Texas Gov. Greg Abbott's response to the decision.

Jack Izzo is a Chicago-based journalist and two-time "Jeopardy!" alumnus.