AMAC Exclusive – By Ed Martin
The story of DHS v. Texas – the Supreme Court case stemming from the federal government’s efforts to destroy border barriers created by the Lone Star State – is a dramatic one, complete with heroes, villains, and a wild west standoff like no other in recent times. As it comes to a head in some ways, it is critical to note that this saga is far from over. Here is where things stand now.
At the heart of the dispute between Texas and the federal government is the foundational American principle of federalism.
Like E=MC2 and the Pythagorean Theorem, federalism is a concept that everyone learns about in high school but few remember once they take off their gown and pointy hat.
Essentially, a federalist system is one where power is divided between a central authority and constituent political units, such as states or provinces. It allows for a balance between national unity and regional autonomy, with each level of government possessing its own spheres of authority.
Unlike math or science, federalism has no magic formula to govern its implementation or even how it works. In the case of the United States, the balance between the federal government and the states is a crucial piece of how the American Republic works. When that balance is disrupted, a constitutional crisis ensues.
It will come as no surprise that illegal entries at our southern border have seen a dramatic increase under President Joe Biden, while deportations have only gone down. In fact, deportation of criminal aliens plummeted 67 percent under President Biden’s first two fiscal years as compared to the same time period under President Trump.
Governor Greg Abbott saw the massive influx of illegal aliens flooding his state and took matters into his own hands by initiating Operation Lone Star via the Texas National Guard. Among other efforts to secure the border, Texas strategically placed concertina wire (a form of razor wire known as “c-wire”) on state and private property along the border.
Texas was, in other words, doing what the federal government refused to do.
Federal agents with U.S. Customs and Border Protection triggered a wild west showdown by cutting and otherwise destroying this state-placed c-wire.
This act was not just some inefficient federal agency embracing apathy over doing their job. This was a federal agency, working on Joe Biden’s orders, actively trying to entice more aliens to violate federal law and denying a state its right to protect itself from a border invasion.
As Governor Abbott so eloquently put it in an open letter to the White House, “By wasting taxpayer dollars to tear open Texas’s border security infrastructure, President Biden has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border — bridges where nobody drowns — and into the dangerous waters of the Rio Grande.”
This is where Texas Attorney General Ken Paxton steps into the story. He knows his duty is to the people of the Lone Star State, which is why he is taking on the federal bureaucracy working to keep our southern border open. He filed a complaint in the U.S. District Court for the Western District of Texas to get federal agents to stop destroying Texas’s property.
Now we must dust off our high school civics textbooks to look at the Constitution’s definition of federalism. In just 28 words, the 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, unless a state is specifically preventing the federal government from doing what the Constitution empowers it to do, the federal government cannot interfere with what a state is doing.
With that in mind, the question in DHS v. Texas very quickly becomes whether the federal government is granted a right in the Constitution to destroy c-wire that Texas has placed on its own land. Paxton included six arguments in his complaint, but the two key arguments fall under the common law torts of trespass of chattels and conversion. (Torts are not criminal laws, but legal principles that allow one party to seek redress from another party.)
“Trespass of chattels” deals with situations where one party prevents another from using their personal property the way it was intended. Texas held that by cutting their c-wire, federal agents diminished “the wire’s utility as a barrier fence.”
Conversion, meanwhile, is a stronger tort that involves taking someone else’s property as though it were your own. This can be clearly seen at the border as well. Legally speaking, trespass of chattels and conversion have a lower legal threshold for proof, meaning that Texas doesn’t even have to prove that a crime was committed in order to get the ruling they are seeking.
The U.S. District Court found that video evidence showed federal agents “cutting multiple holes in the concertina wire for no apparent purpose other than to allow migrants easier entrance further inland.” Yet, the same District Court also failed to grant Texas a temporary order restraining the federal CBP agents from cutting more c-wire.
Texas then went to the Circuit Court of Appeals, which is the next rung up the judicial ladder. There, the temporary order was granted in Texas’s favor. The Biden administration appealed the matter to the Supreme Court, which issued a brief two-sentence response removing the temporary order. That does not settle the matter, but simply means that while the case is being litigated in the lower courts, CBP can keep cutting the wire and Texas can keep laying more down.
The Biden administration shockingly claims that federalism demands that CBP agents be able to destroy the c-wire. They say that the federal government’s authority over immigration enforcement is made more difficult by the wire’s presence. Yet, video evidence and raw data show that the exact opposite is true. Biden’s argument is a clear case of the tail wagging the dog.
In reality, the Biden administration is viewing the crisis at the border through the eyes of Obama’s right-hand man Rahm Emanuel, who infamously said to “never let a serious crisis go to waste.” They are capitalizing on the suffering of Texans and others for their own gain.
Federalism holds the key to relieving the Americans who suffer from the crime and burdened public support systems that come with rampant illegal immigration. We the People give our sovereignty to the federal government only via our states. As Texas so capably demonstrates, our states have a unique position standing in the gap between We the People and the federal government.
State attorneys general like Ken Paxton are the ultimate embodiment of that principle. When legal fights that make their way to the Supreme Court incur costs that easily go into the millions, We the People depend on our state attorneys general to challenge federal mismanagement and intrusion.
The Biden administration acts as though it is their prerogative to secure the border, when in fact it is their duty to do so. This difference – between what you want to do and what you must do – is a crisis if left unchecked.
The state of Texas is both physically and constitutionally filling the gap left by Biden, which brings much-needed attention to Biden’s inaction. This negative attention may be the only thing President Biden hates more than the idea of a secure border.
Ed Martin is a lawyer who succeed iconic conservative leader Phyllis Schlafly as President of the Phyllis Schlafly Eagles, the pro-family organization with leaders in every state. He clerked for the federal court of appeals and has served chief of staff to the governor of Missouri, chairman of the St. Louis board of elections, and in 1997 as special assistant to Pope John Paul II.
