Experts Turley, Painter say Texas on shaky legal ground in border razor-wire fight

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Texas is battling President Biden in the courts and on the ground over illegal immigration at the southern border.

The Lone Star State defied the Biden administration this week after the Supreme Court granted an emergency appeal to allow federal officials to cut razor wire Gov. Greg Abbott ordered to be installed at the southern border.

The Republican governor responded to the court by posting pictures of the Texas National Guard bolstering the border, declaring on Wednesday that Texas has a right to “self-defense” from a migrant “invasion” at the southern border.


Texas defied the Biden administration this week after the Supreme Court granted an emergency appeal to the Biden administration to cut razor wire installed at the southern border. (Brandon Bell/Getty Images)

Abbott’s move led to Democrats’ calls for Biden to take control of the Texas National Guard.

George Washington University law professor and Fox News contributor Jonathan Turley told Fox News Digital that while “many agree” with Texas’ objections and “oppose” how the Biden administration is handling the border, the federal government now has a “sufficient basis” to “move forward.”

“After the Supreme Court lifted the injunction on the removal, Texas is without legal cause to prevent access by the federal agents,” Turley said. “Texas would need to secure another injunction, but it is hard to imagine what that basis would be in light of the decision of the court.

“It can resume litigation, but legally it could be ‘all hat, no cattle’ in defying the federal orders,” Turley added.

“Texas can seek an alternative means to secure the border. However, it is unlikely to get much support in the federal courts.”

President Biden

The Lone Star State is battling President Biden in the courts and on the ground over illegal immigration at the southern border. (Yasin Ozturk/Anadolu via Getty Images)

University of Minnesota law professor Richard Painter told Fox News Digital the issue boils down to federal supremacy doctrine and that “the general problem here is we have no consistent arguments from anybody about who’s in charge of immigration law.”

“Whether it’s the federal government only, the federal government and the states … and do we have combined control or a partnership or do we have just the federal government?” Painter wondered.

Painter said “neither party is being completely consistent here,” criticizing the Democrats for supporting sanctuary city policies and adding it is “unacceptable” that there are cities that will not enforce immigration law.

Additionally, Painter said Texas is going against Biden on the issue because “they believe that Biden is not adequately protecting the United States against illegal immigration, even though that’s really the Biden administration’s job.”

Texas border wire

Concertina wire lines the path as members of Congress tour an area near the Texas-Mexico border Jan. 3, 2024, in Eagle Pass, Texas. (AP Photo/Eric Gay, File)

“And so Texas now is taking advantage of some ambiguity in the law, to do what it wants to do itself to address the problem they feel that President Biden is not adequately addressing,” Painter said. “And states have the right to do that unless they’re clearly preempted by federal law.”

Abbott issued a lengthy statement Wednesday, saying the federal government broke the compact between the U.S. and the individual states.


“The executive branch of the United States has a constitutional duty to enforce federal laws protecting states, including immigration laws on the books right now,” Abbott said. “President Biden has refused to enforce those laws and has even violated them.”

Abbott is fighting multiple legal battles with the Biden administration, which has threatened legal action over Texas’ seizure of Shelby Park near Eagle Pass. Texas has also filed lawsuits against the administration, which cut razor wire set up by the state on the Rio Grande to prevent migrants from illegally crossing into Texas.

Fox News Digital’s Adam Shaw and Greg Wehner contributed reporting.


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