TEXAS — The fight between Texas and the federal government over the razor fence was back in court Thursday.
“You think what the Supreme Court did should bear on what we’re deciding now?” asked Judge Kyle Duncan, United States Court of Appeals, Fifth Circuit.
Duncan appeared frustrated by Department of Justice attorney Melissa Patterson, who suggested the Fifth Circuit judges should consider the U.S. Supreme Court decision that stopped Texas from putting up more razor wire.
“In order for us to have secured vacatur from the Supreme Court, we had to show that we had a fair prospect of succeeding on the merits,” said Patterson.
The Supreme Court made its decision in part based on new evidence from the Department of Justice linked to facts on drowning. Texas Solicitor General Aaron Nielson says the high court’s decision should not be considered.
“The idea that they can, one, tell the Supreme Court new things, but, two, this court has to take the Supreme Court’s decision as somehow a reflection on the merits — those two things can’t both be true,” said Nielson.
The state is also arguing that the federal government can’t destroy state property, referring to the razor wire.
“Destroying this property enables drug smuggling, weapon smuggling and human trafficking,” said Nielson.
Immigration attorneys suggest the state’s argument about property rights is misleading and say the case comes down to the Constitution’s supremacy clause, where federal laws supersede state laws.
“It’s more than anything else — and this is, again, from the perspective of the federal government — a nuisance to the customs agents who have a job to do, and that job involves not just physically stopping people but also interrogating people,” said Eric R. Welsh, a partner at Reeves Immigration Law Group.
The conservative makeup of the circuit court could indicate a favorable outcome for the state.
“As an exercise of raw political power by interested judges on the Fifth Circuit, I think it’s entirely plausible and possible that they will side with the state of Texas,” said Pratheepan Gulasekaram, a University of Colorado Boulder professor of constitutional and immigration law.
Immigration experts say regardless of the outcome of this case and the policies that follow, it won’t discourage people from crossing the border.