The feud between the Biden administration and the state of Texas over the southern border has set the stage for one of the biggest immigration fights between the federal government and a state government in more than a decade.
Republican Texas Gov. Greg Abbott recently had his authorities seize city property along the southern border, arresting migrants crossing illegally for trespassing, which the federal government has vocally opposed.
The Biden administration subsequently asked the Supreme Court to intervene, arguing that Texas is overstepping its authority, sparking a legal battle the high court hasn’t seen since 2012.
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“Courts traditionally have said that states have only a limited role to play when it comes to enforcing our immigration laws. Texas is now challenging that traditional assumption and we’ll have to see how the courts rule on this important issue,” Stephen W. Yale-Loehr, professor of immigration law practice at Cornell, said in an interview with the Daily Caller News Foundation.
In 2012, the Supreme Court ruled in a case known as Arizona v. United States that states can’t enforce immigration laws after the state tried to take matters into its own hands.
Texas’ takeover of Shelby Park in Eagle Pass led to the Biden administration’s Department of Homeland Security (DHS) saying Texas prevented Border Patrol agents from responding to the drowning of a migrant mother and two of her children in the Rio Grande River on Jan. 13.
It was later discovered that federal authorities informed Texas of the drownings after they had occurred, according to a Jan. 15 Department of Justice filing in the Supreme Court.
The Biden administration and Texas have also sparred on whether or not the state has the right to erect razor wire along the southern border, whether or not state authorities can arrest migrants for illegal entry and whether or not Abbott can have buoys placed in the Rio Grande.
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Given that the makeup of the high court bench has changed since the Arizona case, where the Supreme Court ruled 5-3 in favor of the federal government, there is a chance for some hope for Abbott’s case, Yale-Loehr and South Texas College of Law Professor Josh Blackman Josh Blackman told the DCNF.
“The question is now that we’ve got three different justices on the Supreme Court, than we’re on the court and the Arizona case with the current Supreme Court rule the same way and I suspect that Texas is hoping that with more conservative justices on the Supreme Court now, they might be able to come out with a different result than Arizona,” Yale-Loehr said.
Although the Arizona case was a victory for the federal government, it still left lingering questions about whether the state has any authority when it comes to offenses tied to the border, Blackman said.
“The Arizona case was more or less a victory for the federal government, but there were parts of Justice Kennedy’s opinion which said, we don’t decide certain issues and one of the issues that it did not decide was whether the state could actually make an offense to violate federal law. In other words, it’s a state offense if you’ve illegally entered the country. The court said we’re not defining that now” Blackman said.
“I’m fairly confident that if the same issue arose today with this current court it would not come out the same way, Justice Kennedy was a swing vote back then in 2012. I think the doctrine doesn’t squarely foreclose with Texas. I think there’s still some wiggle room, and the court might chart a different path,” Blackman said.
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