Border Patrol must stop cutting Texas razor wire, appeals court says

WASHINGTON – An appeals court ordered the Border Patrol on Tuesday to stop cutting razor wire installed by Texas, handing a win to state officials as the surge of migrants hits unprecedented levels.

The ruling reverses a lower court order allowing federal authorities to remove the sharp fencing at will, infuriating Gov. Greg Abbott, who has deployed massive resources to tighten security along the Rio Grande.

State Attorney General Ken Paxton sued the Department of Homeland Security and accused its agents of illegally destroying state property.

The ruling applies to 29 miles of wire installed in Maverick County, which includes Eagle Pass, where tens of thousands of migrants have arrived this week – an overwhelming surge that prompted federal authorities to shut down an international rail crossing to free up personnel.

The 19-page ruling focused mostly on whether the state has the right to sue the federal government in this case. It does, the judges said.

The ruling also suggested that, rather than impeding federal law enforcement, Texas’ actions supplement it. There is “substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations,” the court wrote, citing an earlier case.

Razor wire is one of many tools Abbott has used as part of his $10 billion Operation Lone Star, the state’s effort to address a border crisis that Republicans blame on lax enforcement by the Biden administration.

On Dec. 1, a different three-judge panel of the New Orleans-based 5th Circuit appeals court handed a major defeat to Abbott, ordering removal of a 1,000-foot buoy barrier the state installed in the river to deter migrants.

Texas and federal authorities agree that the concertina wire must be cut in case of emergency – to save a migrant from drowning, for instance, or when officers witness an assault on the far side.

“We’re doing it to go rescue somebody,” Texas Department of Public Safety Director Col. Steve McCraw recently told The Dallas Morning News. “We’re not doing it to allow a large number of migrants to enter between the ports of entry. We want them to go to the ports of entry.”

He and other state officials say federal agents have removed concertina wire simply to let migrants enter the United States, and sometimes without notification.

On Oct. 30, federal Judge Alia Moses of the Western District of Texas issued a temporary order barring Border Patrol agents from destroying, damaging or removing the razor wire that Texas has installed along the border, except in an emergency.

She found that, as Texas asserted, Border Patrol sometimes cuts the concertina wire “for no apparent purpose other than to allow migrants easier entrance further inland.”

That was a temporary win for Texas. But a month later, the judge issued a new order – this time siding with the Biden administration, agreeing federal authority preempts state authority at the border.

Tuesday’s ruling came from a panel of three judges, all named to the bench by Republicans: Catharina Haynes, appointed by George W. Bush, and Don Willett and Kyle Duncan, both appointed by Donald Trump.

Judge Moses is also a Bush appointee.

The 5th Circuit is among the most conservative federal appeals courts. The panel on the buoys case included two judges named by Democratic presidents, both of whom sided against Texas.

Texas is appealing that ruling.