Texas Can Defend Itself

February 1, 2024

IRLI shows Fifth Circuit state’s razor wire is lawful

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the Fifth Circuit Court of Appeals urging it to order Border Patrol to cease trespassing on Texas’s chattels by cutting the razor-wire the state has put on the border to block illegal entries.

The Biden Administration claims that the barriers are preempted under the Supremacy Clause because they interfere with Border Patrol’s efforts to let illegal aliens in. IRLI points out, however, that mere executive policies—especially ones, such as these, that violate federal law—have no preemptive force. Also, Texas, as a sovereign state, has the inherent authority to protect its territory in a way congruent with federal law. And the barriers here are not inconsistent with federal law, but rather are an effective means of advancing Congress’s purpose, in that law, of stopping illegal immigration.

IRLI also shows that Texas’s razor wire cannot be preempted because of the state’s constitutional power to make war if invaded—as Texas has been invaded by the trafficking cartels. And how Texas chooses to defend itself is not subject to the control of the federal government. As the Constitution puts it, an invaded state may “engage in War” even “without the consent of Congress.”

“The Biden Administration is in the preposterous legal position of arguing that, because it is doing nothing about the border, Texas can’t do anything, either,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Fortunately, our Constitution was better drafted than that. According to its provision, when one constitutional actor—the administration—betrays the country, others—the states—can come to its defense. We hope the Court sees this fully, and protects Texas’s defensive measures.”

The case is Texas v. DHS, No. 23-50869 (Fifth Circuit).