WASHINGTON (CN) — A border standoff between Texas and the Biden administration has caught the Supreme Court in its crosshairs with Republican governors suggesting the Lone Star state defy a high court order to defend the border.
Oklahoma Governor Kevin Stitt laid out his stance on the state’s authority in an interview with CNN. Stitt was asked directly if he supported resisting an order from the justices.
“If the Supreme Court gets something wrong, for example, if they tried to ban and say that we didn't have a Second Amendment right to bear arms, I think the Constitution supersedes somebody in Washington, D.C. telling us,” Stitt said.
The governor’s comments were driven by a vague two-paragraph order handed down by the Supreme Court on Jan. 22 granting an emergency application filed by the Biden administration.
The Biden administration asked the Supreme Court to block a Fifth Circuit order preventing Border Patrol from cutting concertina wire placed along the border by Texas in almost all circumstances. Federal law requires Border Patrol to apprehend migrants who illegally cross into the U.S., and agents say the wire is preventing the government from carrying out that task. Texas retorts that its efforts are a result of the government not apprehending migrants in the first place.
As the application sat before the justices, Texas escalated its efforts to prevent migrants from entering the county — and in turn its efforts to prevent the federal government from intercepting those same migrants. The state used its national guard to shut down a park along the border, blocking agents from reaching migrants attempting to swim through the Rio Grande.
In three sentences, the court granted emergency relief, threw out a lower court ruling, and noted four dissents to the ruling. The court did not explain why the majority chose to rule the way it did or detail how its edict should be carried out. Although typical of orders on the court’s emergency docket, the result created a wash of disagreement over what compliance with the ruling meant and if Texas would abide by it.
“Everybody will use a court decision that says nothing, like the Texas order, to say whatever they want to say,” Eric Segall, a law professor at Georgia State University, said in a phone call. “Even when the court explains itself, the American public has a hard time getting it right. But when they don't explain themselves, those dangers are multiplied 10 times.”
For state Senator Roland Gutierrez, Texas had fallen into noncompliance territory.
“Greg Abbott is actively defying a ruling by the United States Supreme Court,” Gutierrez wrote on X, formerly known as Twitter. “This is not how the law works, you cannot ignore rulings you disagree with. Abbott, Cruz, and Texas Republicans must be stopped. We cannot allow this charade to move forward any longer.”
Steve Vladeck, a law professor at the University of Texas School of Law, said Abbott hadn’t actually done anything to defy the court since the justices didn’t tell Texas to do anything. Rather, the justices merely allowed border patrol to cut concertina wire without preventing Texas from installing more.
“All that #SCOTUS did on Monday was allow federal officials to remove razor wire along the border.” Vladeck wrote on X. “There’s no way Abbott *could* defy that ruling — even if he wanted to. His ‘invasion’ claim is posturing with an eye toward future judicial rulings; not a thumb in the eye of this one.”
The Biden administration fell somewhere in the middle of those two positions. In a letter to Texas Attorney General Ken Paxton, the Department of Homeland Security said the high court restored the government’s right to cut and remove concertina wire placed by Texas. As the letter continues, it said DHS must also have access to the border in Shelby Park, an area currently being occupied by Texas National Guard troops.
White House Press Secretary Karine Jean-Pierre would not directly say Texas had or had not violated the court’s order, stating instead that Abbott was making it harder for Border Patrol to do its job.
“They need access, and right now, they don't have that,” Jean-Pierre said in a press briefing. “It's under the Constitution of the United States that federal law is the supreme law of the land and any conflicting state is preempted. That's the law.”
Texas’ response to the court’s order focused less on what the justices said and more on the Biden administration. The state claims it is under invasion and therefore has the right to self-defense. Texas argues its authority in this realm is supreme to any federal statutes.
This is not the first time the court’s unexplained orders from the emergency docket — sometimes called the shadow docket — have caught the ire of court watchers. It does, however, provide a demonstration of the results of those decisions.
“They could have issued an opinion saying the circuit court order is vacated, and we hereby direct that the state of Texas or any other state not interfere with the federal government's decision to do whatever it wants to do at the border,” Segall said. “They could have said that. They should have said that and that would have ended everything.”
If the Biden administration did think Texas had defied an order from the Supreme Court, it would have to be the one to enforce the ruling. The justices themselves are relegated to fighting their battles with pen and paper, but the federal government has National Guard troops at its disposal.
A similar situation played out in response to the court’s ruling in Brown v. Board in 1957 when nine Black students attempted to attend Little Rock Central High School. Arkansas Governor Orval Faubus ordered the state’s National Guard to block the students from entering the building. President Dwight Eisenhower was forced to federalize the National Guard and send U.S. Army troops to guard the nine students as they attended class.
That history is not lost on Abbott, who in an interview with Fox News suggested he was prepared for such an outcome.
“If Joe Biden federalized our National Guard, that would be the biggest political blunder that he could make and that's why I think he will not do it,” Abbott said. “That said, of course, I am prepared in the event that they do make such a blunder to make sure that Texas will be able to continue to secure our border.”
Follow @KelseyReichmann
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