Democrat accomplice media have been misrepresenting nearly everything about Texas’ efforts to secure the border. But it’s time to separate fact from fiction.
For starters: No, Texas isn’t flouting the Supreme Court. Last week, the court vacated a lower court injunction that prohibited the federal government from removing razor-wire fencing that Texas had erected on the border. Coverage of both the decision and Texas’ response was replete with errors.
For instance, Vox inaccurately headlined its article on the high court’s decision, “The Supreme Court Says No, Texas Can’t Use Razor Wire to Restrain Federal Agents.” And soon after the court released its order and Texas vowed to continue using razor wire, the media began peddling the false narrative that the Lonestar State was ignoring the Supreme Court’s decision.
However, both assessments are wrong: The Supreme Court did not hold (or even imply) that Texas could not erect razor wire, and the state did not flout the court’s decision because the court didn’t order Texas to do anything.
Rather, the Supreme Court’s order merely removed the injunction a lower court had entered against the Biden administration, meaning the federal government could continue to remove Texas’ fencing — and Texas could keep installing it.
Supremacy Clause Doesn’t Dissolve State Sovereignty
The media have also inaccurately presented the import of the supremacy clause. Members of the legacy press, politicians, and academics are framing the supremacy clause as bestowing on the Biden administration an automatic win in every disagreement with Texas. But the clause does no such thing.
The supremacy clause, which is found in Article VI of the U.S. Constitution, provides that the Constitution and all federal laws are “the supreme law of the land.” The clause thus provides that federal law trumps state law, but which state laws are trumped and when is a complex question. Thus merely invoking the supremacy clause says little to nothing regarding the propriety of Texas’ efforts to secure the border.
Further, those proclaiming that Texas’ every action is an attack on our constitutional system are also ignoring that our Constitution’s view of federalism recognizes that both the federal and state governments are sovereigns that the other must abide, however complex that line of state sovereignty might be.
Sovereignty, Supremacy, and the Standoff
Coverage of the Eagle Pass standoff provides an apt illustration of the inaccurate reporting surrounding the supremacy clause and the disregard for Texas’ sovereignty.
Eagle Pass is the border town in Texas where, earlier this month, Gov. Greg Abbott declared an emergency and seized control of Shelby Park. Under the governor’s directive, the Texas National Guard then limited access to the park, including by federal Border Patrol agents.
In response, the Department of Homeland Security, which had been using Shelby Park as a staging area for illegal aliens, sent two letters to the state demanding unlimited access to the park. Those letters and Texas Attorney General Ken Paxton’s responses expose the fallacy of many of the legal arguments critics make to condemn Abbott’s efforts.
DHS’s first letter to Texas, dated Jan. 14, 2024, demanded that “Texas cease and desist its efforts to block Border Patrol’s access in and around the Shelby Park area and remove all barriers to access in the Shelby Park area.” DHS based that demand on its claims that “the State of Texas [has] impeded operations of the Border Patrol,” further arguing Texas’ conduct “conflict[s] with the authority and duties of Border Patrol under federal law and are preempted under the Supremacy Clause of the Constitution.”
“Texas’s actions also improperly seek to regulate the federal government,” DHS added. “[T]he entire area to which Border Patrol has been denied access is well within 25 miles of the international border and thus within the zone to which Border Patrol has an express statutory right of access without a warrant.”
Border Patrol no doubt has both authority and duties related to immigration enforcement. And given the federal government’s use of Shelby Park to “stage” the aliens, Texas’ decision to block access likely did interfere with DHS’s operations. But the supremacy clause does not allow DHS simply to commandeer private property or the property of another sovereign by just demanding it. (Cases of emergency raise other issues, but Texas maintains that Border Patrol may access any part of the park in the event of an emergency.)
DHS knows this, which is why in its initial letter to Texas, it referenced two different theories purporting to justify the Border Patrol’s access to the park. First, the letter claimed that a Memorandum of Agreement entered between DHS and Eagle Pass in December 2015 granted DHS the right to “continuous and uninterrupted access to all gate locations.”
Whether that Memorandum of Agreement gave DHS a property right in Eagle Pass is unclear. Texas argues that under the state Constitution, Eagle Pass could not grant Border Patrol a property right without the state’s approval. A court may eventually have to decide whether the Memorandum of Agreement gives DHS unimpeded access to Eagle Park, but that dispute has nothing to do with the supremacy clause.
Second, DHS claimed that Border Patrol has an express statutory right of access because the Shelby Park area “is well within 25 miles of the international border.” But as Paxton stressed in his response letter to DHS, the federal statute that authorizes “U.S. Border Patrol warrantless access to land within 25 miles of the border,” expressly provides that such access is “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”
On the contrary, DHS is seeking to facilitate illegal entry and use the property to process the migrants. Thus, that statute does not grant DHS the access it demands.
In response to Paxton’s letter rejecting DHS’s demands, DHS sent a second missive. In it, the federal agency made no reference to the supremacy clause or a statutory right to access the property — a tacit admission that its initial arguments were bunk. Instead, DHS claimed the federal government actually owned the property in and around Eagle Pass, having obtained title by condemnation.
To support that assertion, DHS referenced a final judgment entered in 2016. The docket from that case does indeed show that the George W. Bush administration obtained ownership of various plots of land in and around Eagle Pass. And if the federal government does, in fact, own the property under dispute, Texas said it “would of course remove any obstructions to federal land.”
Texas, however, suggested it had “serious reasons to question both of your new claims of federal property rights.” DHS’s own map, Paxton wrote, “shows most of the tracts you reference fall outside the perimeter area secured by Texas at Shelby Park.” And for those parcels identified as in the vicinity of the park, “publicly available records suggest the United States does not even purport to own what your latest letter claims.” Paxton ended his letter by asking DHS to provide it with official plat maps and deeds identifying the property the United States owns, as well as an explanation of how exactly Texas is preventing federal agents from accessing those parcels.
DHS has yet to reply, but this last exchange confirms it is the Biden administration treading on Texas’ sovereignty, not the other way around.
If the Biden administration actually owns the property at issue, it could have said that long ago and proven it, but it didn’t. Instead, DHS merely invoked the supremacy clause, even though neither the Constitution nor federal law provided Border Patrol with the right to compel access to Shelby Park. (Again, emergencies are a different situation.) The Biden administration took this tack even though it could have instead expeditiously obtained access to the property by filing a condemnation proceeding.
The Constitution authorizes condemnation proceedings, and Congress provided the U.S. government authority to obtain ownership over real property when needed to control and guard U.S. borders, with the property owner receiving the fair value of the land. In fact, the federal government obtains rights in the property upon filing the condemnation petition, ensuring timely access.
Texas might not like the Biden administration taking by condemnation ownership of Shelby Park, but that’s where the supremacy clause comes in. Federal law is the supreme law of the land, and Texas’ sovereignty is now secondary.
That the Biden administration hasn’t yet used the power to condemn Shelby Park suggests the president knows most Americans wouldn’t be too happy if the federal government ripped a park away to provide an encampment for those illegally entering our country.
DHS can avoid that spectacle, though, if it can establish that an earlier administration already obtained title to the disputed property. But even then, the Biden administration’s fight with Texas over border security is just beginning.