Fox News contributor and George Washington University law professor Jonathan Turley argued Friday that the federal government has the “upper hand” in the ongoing showdown between Texas and the Biden administration.
The Supreme Court, in a 5-4 decision Monday, agreed to vacate an injunction that temporarily blocked Border Patrol from cutting wire Texas had placed along the border.
The ruling does not require Texas to take any action to remove the wire fencing at the behest of the Supreme Court. Rather, the ruling states that federal border patrol agents have the right to remove the fencing if it impedes their ability to carry out the Biden Administration’s orders.
Turley first began by arguing that the open border crisis is a “violation of the understanding between the federal government and the states,” adding the federal government has not “fulfilled its pledge.” (RELATED: CNN Host Spins Misleading Falsehood About Texas Border Battle)
“The problem is that federal courts are unlikely to agree that this is the ‘invasion’ referenced in the Constitution. There’s also a reference to ‘imminent danger’ and certainly looking at hundreds of thousands of people crossing, an effectively, open border presents an imminent danger, but the courts are likely to define that in the context of that provision in the context of an invasion by – as with a foreign state. So I think Texas is going to have a hard time making that constitutional argument in court,” Turley said.
The law professor added while judges may be sympathetic to Texas being overwhelmed by migrants, “the federal government has the upper hand legally. They tend to get a lot of deference along the border.”
Turley said while he understands that Texans see the mass migration as an imminent danger to the state, the “problem” is that the court will disagree.
“The courts are likely to say that lax enforcement has been a problem all along, there’s been a problem with people crossing that border, and that this provision was really written at a time when those border states were in constant danger of an actual invasion by a foreign power. So that’s the reason I think Texas will have a hard time threading this needle in federal court. But that does not relieve the Biden Administration politically or even legally as Texas invokes its other authority as a state power to protect its citizens. Its citizens are at risk.”
A handful of Democratic lawmakers have called on President Joe Biden to federalize the Texas National Guard.
Texas Gov. Greg Abbott has vowed to defend the state’s constitutional right to protect itself, with the state putting up more wire fencing after the Supreme Court’s ruling.
“The federal government has broken the compact between the United States and the States,” Abbott said in a statement. “The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now.”
“President Biden has ignored Texas’s demands that he perform his constitutional duties.”
Border Patrol agents have recorded a record-breaking amount of illegal migrants. More than 2.2 million illegal migrant encounters were recorded in fiscal year 2022 at the southern border and more than 2 million in fiscal year 2023, federal data shows.
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