On Monday, the Supreme Court issued a 5-4 ruling that temporarily sided with the Biden administration, allowing federal officers to cut concertina wire placed on the southern border by the state of Texas to block migrants from entering the state illegally.
However, former federal prosecutor Andy McCarthy argued in a Thursday piece for National Review that the law regarding border protection is actually on Texas’ side.
The Supreme Court vacated an order from the Fifth U.S. Circuit Court of Appeals that blocked the Department of Homeland Security from cutting the wire while the case between the Biden administration and Texas proceeds in court.
“The Supreme Court (with no opinion, and over the objection of four justices, who also did not write) held that, for now, the lower courts may not prevent the federal authorities from dismantling barriers,” McCarthy explained.
“The Supreme Court did not order Texas to do anything,” he added.
“In any event, no court has presumed to tell Texas that it may not erect more barriers. Texas can install more razor wire, even if the feds keep cutting it, until there is some resolution (the underlying case is on an expedited schedule before the Fifth Circuit),” McCarthy wrote.
Texas Gov. Greg Abbott told Fox News on Thursday that’s just what he intends to do, citing his constitutional authority.
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“There are criminals coming across our border. Texas has a right as a state to stop criminals from coming into our state, to make arrests of those criminals. We have National Guard, as well as Texas Department of Public Safety officers, who are there to make those arrests and to deny illegal entry,” Abbott said.
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He noted that the states created the federal government and established the nature of their relationship in the Constitution.
“Included in that agreement was the compact that the federal government would take care of the states, and Article IV, Section 4 of the Constitution speaks to that and says that if the federal government does not take care of the states and the states are in danger, we can ask the federal government to live up to its obligation,” Abbott said.
Article IV, Section 4 requires the federal government to protect the states against “invasion.”
“The authors of the Constitution knew there would be times when the federal government would not live up to its duty and so they empowered states in Article I, Section 10 — the right of self-defense,” the governor explained.
Article I, Section 10 says that states may not “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
“What Texas is asserting is our Article I, Section 10 right of self-defense because the president of the United States is not fulfilling his duty to enforce the laws passed by Congress that deny illegal entry into the United States,” Abbott said.
McCarthy agreed with that assessment.
“Biden’s actions are in gross violation of the law,” he wrote.
McCarthy cited U.S. Code Title 8, part of which provides, “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”
In other words, migrants citing a “credible fear of persecution” are to be kept in custody while their claim is reviewed.
McCarthy pointed out that there are only two exceptions.
If an alien arrives “from a foreign territory contiguous to the United States,” the attorney general “may return the alien to that territory” pending a removal proceeding. This is what former President Donald Trump did with his “Remain in Mexico” policy, which Biden ended after taking office.
The attorney general may also parole aliens, but only “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”
The law specifically provides, “The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest … require that the alien be paroled into the United States rather than be admitted as a refugee.”
McCarthy asserted, “The mass-parole authority that Biden has claimed does not exist.”
Indeed, Biden has been accused of grossly abusing the parole exception.
According to the Center for Immigration Studies, from the beginning of fiscal year 2014 to January 2017 under President Barack Obama, Customs and Border Protection’s Office of Field Operations “released a total of 138,687 inadmissible aliens at the Southwest ports on parole, just fewer than 3,470 per month on average.”
“During Trump’s presidency, from February [2017] to January 2021, CBP officers in OFO released 67,492 inadmissible Southwest border aliens on parole, at an average rate of just over 1,400 per month,” the CIS added.
“In FY 2023, Biden’s OFO at the Southwest border paroled nearly 30,850 inadmissible aliens per month, roughly 22 times the monthly average under the prior administration,” the CIS said.
GOP Sen. Lindsey Graham of South Carolina noted in a news release this month that although the final statistics are not in yet, it is likely the Biden administration paroled approximately 1.2 million migrants in FY 2023 alone, compared to Obama’s 138,700 over a three-year period and Trump’s 67,500 in four years.
McCarthy concluded, “If we’re going to talk about who is defying the law, that’s easy — it’s Biden, not Texas. When it is said that the states must comply with federal law, that means statutory law, not the whims of the executive branch.”
George Washington University law professor Jonathan Turley agrees that Biden is not fulfilling his constitutional duty to protect the states, but he believes the federal court system may side with the president.
“I don’t think anyone can honestly look at the southern border and say that the federal government has fulfilled its pledge. This is an unprecedented crisis brought about, I believe, by President Biden’s policies,” Turley told Fox News on Friday.
“The problem is that federal courts are unlikely to agree that this is the ‘invasion’ referenced in the Constitution,” he continued.
“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, as with a foreign state.”
