After four years of battling President Joe Biden over the Southern border, Texas Governor Gregg Abbott pulled off another legal win this week.
On Wednesday, the Court of Appeals for the Fifth Circuit ruled the federal government does not have the authority to remove razor wire placed along the Texas-Mexico border on the orders of Abbott.
The ruling said the wire could remain provided federal agents have “necessary access” to both sides of it. This includes wire placed in Shelby Park in Eagle Pass, which the Texas Military Department took over in January 2024 to guard against illegal immigration.
Abbott has been at odds with the Biden administration over the past few years, in particular over how to prevent irregular migrants crossing into Texas from Mexico. In January 2024 the Supreme Court ruled federal agents could remove razor-wire placed along the border on Abbott’s orders, sparking a furious response from the governor who invoked his state’s “constitutional authority to defend and protect itself.”
Following his election victory on November 5, Donald Trump will be inaugurated as president in January, likely providing a far more sympathetic federal counterpart for Abbott to work with. Tom Homan, a former Immigration and Immigration and Customs Enforcement director who Trump has picked as his “border czar,” praised Abbott for having “done a great job so far” during a recent visit to the border.
He added: “I guarantee you the Trump administration isn’t going to constantly sue him for trying to secure the border. We’re going to partner up and help him do 100 percent security.”
In its ruling, the court said that “after days of testimony, the district court agreed with Texas on the facts: not only was Border Patrol unhampered by the wire, but its agents had breached the wire numerous times ‘for no apparent purpose other than to allow migrants easier entrance further inland.'”
Speaking to Newsweek Erin B. Corcoran, an immigration law expert who serves as executive director of the University of Notre Dame’s Kroc Institute of International Peace Studies, said the ruling was a “surprising to me.” She added: “Historically the courts have been fairly deferential to the federal government with respect to immigration enforcement.”
Former federal prosecutor Neama Rahmani, president of West Coast Trial Lawyers, described the ruling to Newsweek as “a setback for the Biden administration and the federal government” though he said it “won’t necessarily set a precedent in other cases.”
He added: “Although many view this as an immigration law issue, which has historically been exclusively controlled by the federal government, the Fifth Circuit couched this as a private property rights issue. It will be interesting to see if the Biden administration appeals to the Supreme Court yet again, and whether the Trump Department of Justice abandons the appeal when he takes office.”
In March 2021, Abbott launched Operation Lone Star, a collaboration between the Texas Department of Public Safety and the Texas Military Department, in a bid to secure the state’s border with Mexico. T
he initiative has seen thousands of Texas National Guard soldiers and law enforcement personnel sent to the border, along with the construction of physical obstacles such as razor wire fences. Floating buoys, separated by saw-like sheets of metal, have been placed in the Rio Grande in a bid to discourage river crossings.
Abbott’s scheme has led to ongoing tensions with the federal government, resulting in a number of court cases. Corcoran described the move as a “power grab” arguing it amounted to “a real attempt at least to say that states have the ability to take immigration, at least enforcement functions, into their own hands which is not how it’s been in the past.”
Photo Illustration by Newsweek/Getty Images
The legal expert said the confrontation between Abbott and the Biden administration is part of an ongoing tension between the dueling powers of state and federal government, which she said goes “back and forth in different administrations based on who has power.”
In January 2024, Abbott received a blow when the Supreme Court ruled Border Patrol agents could remove razor wire placed along Texas’s border with Mexico, though Corcoran said this decision was on a technical matter rather than the merits of the case.
Abbott hit back with an explosive letter claiming illegal immigration into Texas constituted an “invasion,” and thus invoking the state’s “constitutional authority to defend and protect itself” which he said, “Is the supreme law of the land and supersedes any federal statutes to the contrary.”
Texan authorities then became embroiled in legal controversy over their floating buoys in the Rio Grande, securing a legal victory in June when a magistrate rejected testimony from Adrian Cortez, an official working for the International Boundary and Water Commission. In July, an appeals court ruled floating buoys placed in the Rio Grande could remain in a big win for the Texas governor, then he had another boost this week with the razor wire ruling.
The Biden administration made no effort to federalize the Texas National Guard, removing them from Abbott’s direct control, despite facing calls to do so from a number of Democratic politicians.
Corcoran told Newsweek that Abbott’s four-year confrontation with Washington could have a lasting impact on the balance between federal and state power, in favor of the latter.
She said: “but I think for me, from a structural perspective, in some ways it’s a power grab that’s not necessarily just about immigration. You could see situations in which states feel more empowered to enact or enforce their own priorities regardless of what political party is in charge in the federal government space.”
Abbott’s team adopted the strategy of bussing thousands of suspected irregular migrants to Democratic run cities, such as New York, Chicago, Washington D.C. and Denver. However, in August, a Republican Party of Texas official told Newsweek this was no longer needed as the number of attempted migrant crossings into the state had fallen sharply.
Referring to the incoming Trump administration, Corcoran added: “Immigration tensions may be resolved but I think it can embolden the state to feel that they have the ability to regulate and enforce issues that have been historically and traditionally understood by the courts to be federal in function.”
Speaking to Newsweek, Daniel Miller, president of the secessionist Texas Nationalist Movement and an advocate for tighter border control, described Wednesday’s court ruling as “not unexpected.”
He added: “In terms of practicality, the Biden administration is essentially out of time to do anything with it before the new administration takes office.”
Newsweek has contacted the White House press office and Abbott for comment via email.