SUPREME AUTHORITY — A clash over miles of razor wire on the Texas border threatens to dramatically change the relationship between federal and state governments on matters of immigration enforcement. After the Supreme Court issued a brief, three-sentence order last Monday granting a Justice Department’s request to remove the state-installed wire — designed to keep migrants from crossing into Texas — the rift between state and federal authorities has exploded into public view, marked by statements of defiance from Texas Republican Gov. Greg Abbott and support from many of his GOP gubernatorial colleagues across the country. The result has been an escalation of the dispute into both a political and potential constitutional crisis with no end in sight. Abbott argues that Texas has the constitutional right to defend itself from an “invasion” and claims that this authority “is the supreme law of the land and supersedes any federal statutes to the contrary.” He also says that Texas will keep adding wire along the border, notwithstanding the Supreme Court’s ruling. Republican governors across the country issued a statement in support of Abbott. Former President Donald Trump, who is campaigning in 2024 on the idea that the U.S. has lost control of its borders, lent his vocal support as well. The roots of the conflict began late last year, after Texas installed concertina wire along nearly 30 miles of land on the U.S. side of the Rio Grande as part of the state’s effort to combat what officials claim is a steady flow of illegal immigration under the Biden administration. Federal agents tasked with patrolling the border disturbed that wire as part of their work, which includes providing assistance to people attempting to cross the border whose lives may be in danger. Texas then sued in federal court, claiming that federal agents had broken state law by interfering with the wire. In mid-December, the Fifth Circuit Court of Appeals sided with Texas and issued an injunction that prohibited federal agents from cutting or moving the wire unless necessary to address a “medical emergency.” The Justice Department then went directly to the Supreme Court early this year and asked them to reverse — or “vacate” — that injunction. Last Monday, the court issued a brief, three-sentence order granting the Justice Department’s request. The decision was 5-4, with all three liberals, Chief Justice John Roberts, and Justice Amy Coney Barrett in the majority. In the ordinary course, that might have put the matter to rest while Texas’s case continues to work its way through the courts on a standard schedule. But that is not what happened. In recent days, some observers have claimed that Texas is disobeying or defying the Supreme Court’s order, but that is not quite right, at least as a technical matter. The court’s order merely allows the federal government to cut or move Texas’ wire. For better or worse, it does not explicitly direct Texas to stop installing the wire or to do anything else. On the legal side of this issue, Abbott’s position — that he has the unilateral right to disregard federal law and policy because he decided that there is an “invasion” at the border — is highly dubious, if not clearly wrong, under the current state of the law. That is because the Supreme Court has repeatedly and consistently held that immigration policy and enforcement are matters that should be entrusted largely (if not entirely) to the federal government. There is also no meaningful legal authority to support Abbott’s claim that he has the power to supersede federal law because he believes that there is an “invasion” at the border. We are, however, in a period of constitutional instability and change, thanks in large part to the Trump-era overhaul of the federal judiciary and the conservative super-majority of justices installed by Trump. After all, there used to be a constitutional right to abortion in this country. Affirmative action in higher education used to be legal. Neither of those things is true anymore, and it is not difficult to envision a similarly dramatic change in the law in this area if — or when — the Supreme Court gets its hands on a case that squarely presents the issue. Then there are the political stakes. Those are comparatively easy to identify and, perhaps, help to explain the legal posturing of Abbott, Trump and their allies. And polling suggests that immigration and border enforcement are bad issues for Biden and the Democrats that could hamper the president and his party’s reelection efforts. That means for Republicans like Abbott there is both a short game and a long game here. The short game is political — to shape the public’s perceptions about the situation at the border in the run-up to the 2024 election. The long game is legal — to fundamentally alter the constitutional relationship between the federal government and the states on a signature policy issue for Republicans — and it is just as important as what happens between now and November. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at ankush.khardori@gmail.com.
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