WASHINGTON — The Supreme Court sided with the Biden administration Monday in a dispute over a concertina-wire barrier erected by Texas along the Mexican border. The justices temporarily lifted an appeals court’s ruling that had generally prohibited federal officials from removing the wire.
The Supreme Court’s brief order gave no reasons, which is typical when the justices act on emergency applications. The vote was 5-4, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the court’s three liberal members to form a majority.
The dispute is part of an escalating legal battle between Texas and the Biden administration over border security.
Since 2021, Governor Greg Abbott, a third-term Republican, has mounted an aggressive multibillion-dollar campaign to impose more stringent measures at the southern border to deter migrants from entering the country. Those include erecting concertina wire along the banks of the Rio Grande as well as installing a barrier of buoys in the river.
A three-judge panel of the Fifth US Circuit Court of Appeals last month limited the ability of federal Border Patrol agents to cut the wire.
The panel prohibited agents “from damaging, destroying or otherwise interfering with Texas’ c-wire fence” while the appeal is pending, but made an exception for medical emergencies that are likely to result in “serious bodily injury or death.”
The high court’s decision came as Senate negotiators said they were nearing a deal that involves border policies and US wartime aid for Ukraine.
A core group of negotiators has been laboring for nearly two months over changes to US border and immigration policy and hoped to unveil the legislation later this week.
But the bipartisan group is treading on one of the most explosive issues in American politics, and the legislation faces heavy skepticism from the wings of both political parties, including Donald Trump, the Republican presidential front-runner, and House Speaker Mike Johnson, an archconservative who has shown little willingness to compromise on border policy.
With the House on recess, the Senate has an opportunity this week to gain momentum for the initiative. Republican senators want a robust showing of GOP support for the bill to pressure Johnson to take it up. Senate Republican leader Mitch McConnell’s ability to marshal his conference for the border measures could ultimately decide the fate of one of his key priorities: bolstering US support for democratic allies around the world.
“The entire world understands what’s at stake here in the Senate in the coming weeks,” McConnell said in a Senate floor speech.
It’s a goal shared with President Biden, who is requesting $110 billion from Congress to provide wartime aid for Ukraine and Israel, support allies in the Asian-Pacific, and overhaul the immigration system. However, the emergency funding package has been delayed months in Congress after Republicans insisted that border policy changes also be included in the package.
It remains to be seen whether the border policy changes, which have been negotiated in private with top White House officials, will be enough to satisfy most Republican senators. Democrats have questions of their own, including whether the border policies will harm migrants seeking asylum, and some in the party are pushing to condition military aid for Israel on humanitarian standards.
A small group of three senators has tried to craft a package that gains support from centrists of both parties.
“You get as many votes as you can on both sides,” said Senator Kyrsten Sinema, the Arizona independent who has been central to the negotiations. “But yeah, not everyone’s going to be happy.”
The proposal would toughen the asylum process with a goal of cutting the number of migrants who come to the southern border to make an asylum claim. The group has mostly reached agreements on policy changes, but on Monday was working with Senate appropriators to determine funding levels for the programs.
Texas has been a flash-point along the border. Texas Attorney General Ken Paxton sued the Biden administration in October, saying that Border Patrol agents had unlawfully destroyed state property and thwarted the state’s efforts to block migrants from crossing the border. According to the lawsuit, border agents cut the wire at least 20 times “to admit aliens illegally entering Texas.”
Migrants have been injured by the wire, and drownings in the Rio Grande’s swift currents have become more common. In court papers, Paxton argued that federal officials using bolt cutters and forklifts had destroyed parts of the barrier for no reason other than to allow migrants to enter.
In the Biden administration’s emergency application, Solicitor General Elizabeth Prelogar rejected the contention that federal officials had done anything improper. “Border Patrol agents’ exercise of discretion regarding the means of enabling the apprehension, inspection and processing of noncitizens in no way suggests that they cut wire for impermissible purposes,” she wrote.
Calling the appeals court’s injunction “manifestly wrong,” Prelogar said the barrier interfered with Border Patrol agents’ responsibilities.
“The injunction prohibits agents from passing through or moving physical obstacles erected by the state that prevent access to the very border they are charged with patrolling and the individuals they are charged with apprehending and inspecting,” she wrote. “And it removes a key form of officer discretion to prevent the development of deadly situations, including by mitigating the serious risks of drowning and death from hypothermia or heat exposure.”
The exception for medical emergencies was insufficient, Prelogar wrote. “It can take 10 to 30 minutes to cut through Texas’ dense layers of razor wire,” she wrote. “By the time a medical emergency is apparent, it may be too late to render lifesaving aid.”
Paxton asked the justices to strike a different balance.
“It is in the public interest to deter unlawful agency action and to respect property rights,” he wrote. “It is also in the public interest to reduce the flow of deadly fentanyl; combat human trafficking; protect Texans from unlawful trespass and violent attacks by criminal cartels; and minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.”
Material from the Associated Press was used in this report.