Pursuant to recently passed legislation, on Jan. 11, the Texas Military Department was deployed to Shelby Park in Eagle Pass, Texas — a known hotspot for illegal migration into the U.S. — where state authorities enhanced security measures. As part of the effort to regain control over the U.S. border with Mexico, the Texas National Guard prevented other officials from accessing the area, including Border Patrol agents. In the weeks prior, Border Patrol agents had used Shelby Park to hold migrants who had entered the U.S. illegally before they were transported for processing. The incident put the federal government on a collision course with a state government, which Texas officials argue has the constitutional right to enact border security measures when the federal government refuses to secure the border itself. Shortly after Texas authorities took control, three migrants drowned while attempting to cross the Rio Grande. DHS officials blamed Texas for the deaths, saying that Texas National guard troops prevented Border Patrol agents from rescuing the migrants. However, Texas Attorney General Ken Paxton said in a statement that DHS’s claims are contradicted by a Justice Department filing with the U.S. Supreme Court on Jan. 12, explaining that “federal agents on the ground informed Texas of the situation only after the emergency situation had ended and Mexican officials had recovered several bodies.” On Jan. 14, DHS General Counsel Jonathan Meyer sent a cease and desist letter to Paxton, ordering state officials to stop blocking Border Patrol’s access to the area around Shelby Park, and also to remove armed soldiers and barriers (which include concertina wire) along the southern border. Meyer also cited multiple court cases and federal statues he says gives the federal government exclusive rights to conduct border operations. He also blamed Texas officials for the deaths of the three migrants who last week attempted to cross the Rio Grande. Paxton responded with a letter dated Jan. 17, informing DHS officials that because “the facts and law side with Texas, the state will continue utilizing its constitutional authority to defend her territory, and I will continue defending those lawful efforts in court. The [DHS] should stop wasting scarce time and resources suing Texas, and start enforcing the immigration laws Congress already has on the books.” Countering the assertion Texas policy was the reason for the migrant deaths, Paxton said the allegation was “vile” and “inaccurate.” He said blame for the tragedy lies with the federal government, given that the Texas Military did not prevent Border Patrol from entering Shelby Park to attempt a water rescue, federal agents “did not even have a boat,” and federal agents did not request entry based on a medical emergency. Paxton also rebuffed DHS’s claim to have sole border enforcement authority, writing that federal officials have statutory power only to patrol “the border to prevent the illegal entry of aliens into” the U.S. “President Biden has ordered your agency to do the exact opposite, in keeping with his open-borders campaign promise. There is not even a pretense that you are trying to prevent the illegal entry of aliens,” Paxton wrote. Presenting a direct challenge to the legal theory that Texas has no ability to secure its border with Mexico, Paxton continued:Texas is refusing to comply with a cease and desist order from the U.S. Department of Homeland Security (DHS), escalating a dispute between state and federal officials over southern border enforcement authority.
According to your letter, “[t]he U.S. Constitution tasks the federal government with . . . securing the Nation’s borders.” When were you planning to start? President Biden has been warned in a series of letters, one of them hand-delivered to him in El Paso, that his sustained dereliction of duty in securing the border is illegal. By instructing your agency and others to ignore federal immigration laws, he has breached the guarantee, found in Article IV, § 4 of the U.S. Constitution, that the federal government “shall protect each of [the States] against Invasion.” Texas, in turn, has been forced to invoke the powers reserved in Article I, § 10, Clause 3, which represents “an acknowledgement of the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., concurring in part and dissenting in part). Although you invoke the majority opinion in that case, it never addressed these crucial constitutional guarantees because Arizona did not raise them. Having abandoned the field of immigration enforcement, in defiance of Congress’s commands, your agency is in no position to claim preemption under Arizona v. United States and the Supremacy Clause.
