EAGLE PASS, Texas (Nexstar) — Disputes over who has final authority on immigration enforcement are coming to a head at the southern border in Eagle Pass, after Texas took over a city park along the Rio Grande and denied access to Border Patrol agents.
The Department of Justice has sent a memo late Monday to the U.S. Supreme Court, asking justices to give federal agents access to Shelby Park — a high-traffic area for illegal border crossings along the Rio Grande. The closure of the park is now associated with an incident where three migrants, including two children, who drowned while attempting to cross the river near the park on Friday.
Customs and Border Patrol accused Texas of not allowing agents to access the park for lifesaving care. Additionally, the Department of Homeland Security is threatening Texas —saying Gov. Greg Abbott is violating the Constitution by blocking border patrol’s access to the park.
The Biden administration argued that the migrants could have been saved if federal agents had still been in the area.
U.S. Representative Henry Cuellar, D-Laredo, told Nexstar that he does not think that the Texas National Guard had authority to block off access to the park. He and other Democrats have speculated that if Border Patrol had not been kicked out, their equipment and gear might have been in place and they could have helped rescue the migrants.
“The state should have never kicked out the very agency that has the power under federal law to arrest illegals, number one, and provide humanitarian care,” he said. “With that equipment, Border Patrol would have seen people on the Mexican side would have sent people in the river.”
However, Brandon Judd — president of the National Border Patrol Council — disagrees with this assessment. Judd noted that CBP does not patrol the river on boats at night and that the response time would have been insufficient to prevent the drownings.
“Drownings happen in a matter of minutes, not hours. And that’s what it would have taken to get the resources to that area. But we weren’t notified in in a timely manner. Those individuals had already been deceased,” he said. “There was just nothing that we could do about it in this particular case, and is unfortunate, as unfortunate as it is. There wouldn’t have been anything that we could have done but yet DHS tried to pin the blame on Governor Abbott.”
DHS and the Texas Military Department have provided different timelines about when the drownings took place. In the Monday letter to the high court, the DOJ said that the migrants drowned around 8 p.m. and Border Patrol was notified by Mexico about an hour later on Friday.
The department’s memo to the Supreme Court was a part of a separate lawsuit from the Biden adminstration over the concertina wire Texas has been placing around the border. Currently, federal agents are prohibited from cutting or moving the razor wire, per a November appellate court ruling.
The DOJ said this is the latest example of Texas preventing federal agents from doing their job.
“Texas has continued to impede Border Patrol’s ability to access the border,” the Monday memo read. “Texas stands in the way of Border Patrol patrolling the border, identifying and reaching any migrants in distress, securing those migrants, and even accessing any wire that it may need to cut or move to fulfill its responsibilities.”
Constitutional law experts point to a clear precedent favoring federal authority in such matters, drawing parallels to historical cases like school desegregation. Steve Vladeck, a constitutional legal expert at the University of Texas Austin’s law school, said this situation has exacerbated previous battles over authority on the border.
“There’s no question that as long as the federal government is within the bounds of its authority, the federal government wins. And that’s a lesson that was learned over and over again — in the school desegregation cases in the 1950s and 1960s,” he said. “I think the tricky part here is that Texas is relying upon a series of very legalistic arguments about where its authority extends, and where it’s not necessarily conflicting with the federal government’s authority.”
Judd applauded Texas’ move, saying that the presence of Texas guard members in Shelby Park allows CBP to focus on other areas along the border.
“With National Guard taking this area over, we can deploy our resources to more troubled spots, areas that we haven’t been able to patrol for at least a year and go after what we consider the more dangerous aspects of border security, the got-aways, [where] the cartels are bringing in the drugs,” Judd said. “So it is a huge help. We consider it a force multiplier.”
The on-going conflict is expected to lead to a larger legal battle, with the DHS threatening legal action against Texas if it does not restore access to Shelby Park by Wednesday.
“These are all just flashpoints for the broader attempt by Governor Abbott, to basically claim the mantle of immigration enforcement in a way that we’ve really never seen a state governor tried before,” Vladeck said.
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