Biden Admin Urges Supreme Court to Let CBP Agents Remove Razor Wire on Southern Border

The wire fencing was installed on privately owned land along the Rio Grande by the Texas National Guard.

A Texas National Guard soldier installs additional razor wire at the U.S.-Mexico border in Eagle Pass, Texas on Dec. 20, 2023. John Moore/Getty Images

The Biden administration has urged the U.S. Supreme Court to allow Customs and Border Protection (CBP) agents to cut a razor wire barrier installed by Texas along the U.S.-Mexico border as its legal battle with the state escalates.

The Department of Homeland Security (DHS) filed an emergency motion with the nation’s highest court on Jan. 2 seeking to temporarily remove the wire barrier placed between the Lone Star State and Mexico as part of efforts to prevent illegal border crossings.

Tuesday’s filing comes after the U.S. Court of Appeals for the Fifth Circuit last month temporarily blocked the administration’s removal of the wire, arguing that doing so could potentially thwart Texas’s efforts to secure the border.

Under that appeals court ruling, CBP agents are prohibited from removing parts of the razor barrier unless in emergency cases, such as if the migrant is at risk of drowning or is suffering heat exhaustion.

However, in the administration’s emergency motion filed Tuesday, Solicitor General Elizabeth Prelogar argued the exemption would do little to help migrants.

“While Texas and the court of appeals believed a narrow exception permitting agents to cut the wire in case of extant medical emergencies would leave federal agents free to address life-threatening conditions, they ignored the uncontested evidence that it can take 10 to 30 minutes to cut through Texas’s dense layers of razor wire; by the time a medical emergency is apparent, it may be too late to render life-saving aid,” Ms. Prelogar wrote.

The solicitor general further argued the wire barrier prevents agents from reaching migrants who have already crossed over the border into the U.S.

“By preventing Border Patrol agents from reaching noncitizens who have already entered the United States, Texas’s barriers in Eagle Pass impede agents’ ability to apprehend and inspect migrants under federal law,” Ms. Prelogar wrote in the motion.

“The wire can also obstruct Border Patrol from providing emergency assistance to migrants in the river or on the riverbank,” she added.

The wire fencing was installed on privately owned land along the Rio Grande by the Texas National Guard under the administration of Texas Gov. Gregg Abbott, a Republican.

The fencing is part of Mr. Abbott’s “Operation Lone Star,” initiated in 2021 to respond to a surge in illegal immigration, which has placed a significant burden on border towns.

Texas has alleged that border patrol agents under the Biden administration have cut through some parts of the razor wire barrier and damaged state property.

Solicitor General Prelogar argued in Tuesday’s court filing that Border Patrol agents have authority under federal law to access private land at the border.

“Federal law unambiguously grants Border Patrol agents the authority, without a warrant, to access private land within 25 miles of the international border,” Ms. Prelogar wrote.

As seen from an aerial view a U.S. Border Patrol agent supervises as immigrants walk into the United States after crossing the Rio Grande from Mexico on Sept. 30, 2023 in Eagle Pass, Texas. The agent had cut coils of razor wire to let them pass through for processing. John Moore/Getty Images

“The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law,” she continued. “If accepted, the court’s rationale would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”

‘See You in Court’

Gov. Abbott responded to the Biden administration’s latest request on Tuesday, writing on X, “See you in court.”

The Republican governor added that “Americans and courts will reject Biden’s hostility to immigration laws” and that Texas “will continue to deploy National Guard to build border barriers & repel illegal immigrants.”

More than 302,000 illegal immigrants crossed into the U.S. in December, according to U.S. Rep. Glenn Grothman, a Republican from eastern Wisconsin; marking the highest record for any month.

In a post on X on Tuesday, House Speaker Mike Johnson claimed President Biden’s administration had diverted the stream of illegal immigrants to another location along the border ahead of a visit to Eagle Pass by a group of more than 60 Republican House lawmakers—including House Judiciary Committee Chair Jim Jordan (R-Ohio) and Homeland Security Committee Chair Mark Green (R-Tenn.)—on Wednesday.

“Don’t be fooled, they are still being released into our country. Under President Biden, our Southern border is a disaster,” Mr. Johnson wrote.