The dispute over barbed wire began in October 2023 when Texas’ attorney general, Ken Paxton, sued the Biden administration, claiming that U.S. Border Patrol agents were illegally destroying the state’s concertina wire fencing.
Credit...Cheney Orr for The New York Times

Appeals Court Again Blocks U.S. From Cutting Texas Border Wire Along Rio Grande

The injunction is the second time that the U.S. Court of Appeals for the Fifth Circuit has sided with Texas in a yearlong dispute over barbed wire around the city of Eagle Pass.

by · NY Times

For the second time, a federal appeals court has limited the Biden administration’s authority to cut barbed wire that Texas authorities have erected along the country’s southern border to deter migrants from crossing into the United States.

But the ruling, issued Wednesday, required something of Texas authorities as well. The court order would protect the state’s concertina wire so long as federal agents had “necessary access” to both sides of it — including in Shelby Park, a local park in the border city of Eagle Pass that the state seized and kicked federal authorities out of this year.

The ruling is the latest development in an ongoing clash between state and federal authorities for control over border enforcement, as Texas has repeatedly tried to effectively set its own immigration policy. Since 2021, Gov. Greg Abbott has been deploying state law enforcement and National Guard members along the U.S.-Mexico border as part of an initiative called Operation Lone Star. Texas’ efforts to arrest migrants under a new state law and to place floating barriers along the Rio Grande have also led to court battles.

The legal dispute over barbed wire began in October 2023 when Texas’ attorney general, Ken Paxton, sued the Biden administration, claiming that U.S. Border Patrol agents were illegally destroying the state’s concertina wire fencing. The state, Mr. Paxton said, had the right to curb what he called an “alien surge.”

A district court judge declined to give Texas the injunction it requested, finding that the federal government was likely to win the ongoing case because of sovereign immunity, a legal doctrine that can often shield state and federal governments from lawsuits. In December 2023, the U.S. Court of Appeals for the Fifth Circuit issued a temporary order limiting the Biden administration’s ability to remove the wire only in cases of medical emergencies. That ruling was vacated by the Supreme Court in January, sending the case back to the lower courts.

Wednesday’s order, from the Fifth Circuit, rejected claims by the Biden administration that sovereign immunity and the Supremacy Clause of the U.S. Constitution meant that Texas couldn’t challenge federal actions along the border. Texas, the appeals court found, was seeking “not to ‘regulate’ Border Patrol, but only to safeguard its own property.”

The Fifth Circuit has been hailed by some Trump-aligned Republicans as a model for the future of conservative jurisprudence. Three of its judges are often discussed as possible Supreme Court nominees during President-elect Donald J. Trump’s second term. One of those three, Stuart Kyle Duncan, wrote Wednesday’s ruling.

In a post on X, Mr. Paxton called Wednesday’s ruling a “huge win,” and said that his office had “fought every step of the way for Texas sovereignty and security.”

The Homeland Security Department did not immediately respond to a request for comment.

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