Texas went before a federal appeals court Thursday to defend its own get-tough border policies, asking judges to revive an order preventing the Biden administration from slashing through its razor-wire border fence to help illegal immigrants enter the U.S.
The Justice Department says federal law gives the Border Patrol the right to cut the concertina wire if it’s interfering with how agents want to control the border.
But Texas Solicitor General Aaron Nielson said the law only grants access if the Border Patrol is attempting to arrest and deport people. He said that doesn’t cover the Biden administration, which is cutting holes to let people in.
“This is black and white trespass under Texas law,” he said.
Texas has placed more than 100 miles of razor wire along the banks of the Rio Grande as part of Gov. Greg Abbott’s effort to plug gaps in the border he says have been opened by the Biden administration’s more relaxed approach.
The Border Patrol then cut or smashed the wire in some locations to make it easier for migrants to ascend the banks and enter the U.S.
A district court ruled that the federal government was acting too aggressively in trampling on Texas, but ruled that the feds had sovereign immunity so the lawsuit failed.
A panel of the 5th Circuit disagreed and sided with Texas, issuing the injunction. The Supreme Court stepped in and erased the injunction after the Biden administration sought to blame several drownings in the Rio Grande on the wire.
It was all going down at the same time that Mr. Abbott deployed National Guard troops to occupy a park in Eagle Pass that the Border Patrol had been using as a staging area for welcoming illegal immigrants.
Texas has since argued that the administration misled the justices over the deaths. The state says the Border Patrol could have asked for emergency access but never did — and indeed wasn’t prepared to make a rescue anyway.
Mr. Nielson also said the federal official who was telling the justices what was going on was actually in Detroit at the time, far from the events at the southern border.
Texas still occupies the park and bars the Border Patrol from access, with exceptions for a boat ramp or emergency incidents.
The judges who heard the case Thursday — two GOP appointees and a Democratic appointee — did not give a clear indication of which way they are leaning.
The case could end up serving as a proxy for Gov. Greg Abbott’s broader border efforts as he claims powers under the U.S. Constitution to repel an “invasion” at the border.
President Biden’s new executive action this week trying to shut down bogus asylum claims at the border is also implicated in the case.
Mr. Biden’s team has argued in the razor wire case that once a migrant sets foot on U.S. soil he can’t be turned back and must be processed, including for asylum, and the razor wire interferes with that.
But Texas says that clashes with Mr. Biden’s new policy that says people will be categorically rejected from claiming asylum if the border chaos gets to be too bad.
“They’ve told the district court, and this court and the Supreme Court essentially the told-hold theory — if you get one toe into the United States you are entitled to the asylum process. That is not consistent with what the president said two days ago, that they can turn off the asylum process if too many people are trying to come into the country,” Mr. Nielson said.
Melissa Patterson, arguing for the Justice Department, disagreed about Mr. Biden’s new policy. She said it might be harder for migrants to win asylum cases but the Border Patrol still has to let them in, even under the new Biden rules.
“Congress has provided people who make entry into the United States the right to apply for asylum and nothing about that has changed,” she said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.