The Biden administration has asked the U.S. Supreme Court to allow border patrol agents to destroy or remove concertina wire fencing erected by the state to halt illegal crossings at the Texas-Mexico border. 

In a 96-page court brief, U.S. Solicitor General Elizabeth argued Tuesday that federal law permits border patrol agents authority to access private land without a warrant within 25 miles of the international border. 

“Under the Supremacy Clause, state law cannot be applied to restrain those federal agents from carrying out their federally authorized activities,” the brief reads. 

“The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law,” the brief continues. “If accepted, the court’s rationale would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.”

This is the latest development in the ongoing legal battle over border security between the Biden administration and the state of Texas. 

Previously, Texas Attorney General Ken Paxton secured an injunction that prevented the destruction of the state’s wire fencing—prompting the U.S. Department of Homeland Security to take the fight to the Supreme Court. 

The Biden administration and U.S. Department of Homeland Security Secretary Alejandro Mayorkas increased their efforts to obstruct Texas border security measures in pursuit of an open-border policy during 2023 and are expected to continue to do so into 2024.

Yet, Texas is continuing to fight back in the courts and through legislation. For example, Senate Bill 4—which was signed into law by Governor Greg Abbott last year—would empower law enforcement officers to detain those who cross the Texas-Mexico border illegally. 

Though the American Civil Liberties Union filed a lawsuit against the legislation in December arguing that it is unconstitutional, the law is still expected to go into effect in March of this year unless halted by the courts. 

Previously, State Rep. David Spiller (R-Jacksboro), who sponsored SB 4, told Texas Scorecard, “SB 4, in my opinion, is completely constitutional because it is not in conflict with Arizona v. United States, it is not preempted by federal law, it is not in conflict with federal law, and Texas has the constitutional right, authority, and ability to protect its borders.” 

Texas Scorecard reached out to Attorney General Ken Paxton for comment but has not received a response before publication. 

Will Biagini

Will was born in Louisiana and raised in a military family. He currently serves as a journalist with Texas Scorecard. Previously, he was a senior correspondent for Campus Reform.