All’s Quiet on the Eagle Pass Front

At least publicly, and it will likely remain that way while border ‘negotiations’ continue in Congress

By Andrew R. Arthur on February 7, 2024

A February 2, Wall Street Journal editorial weighed the constitutional implications of what the editorial board referred to as “scuffling” between Texas Gov. Greg Abbott (R) and the Biden administration over control of a municipal park adjacent to the Rio Grande in Eagle Pass, Texas. For all of the attention paid to a state-federal standoff over that section of the border ever since the Supreme Court ruled that CBP can destroy state concertina-wire (c-wire) barriers there, things have been remarkably quiet. Of course, they’re likely to remain that way, at least as long as Congress is discussing border “reforms”.

A Brief C-Wire Recap. Texas state troopers and National Guard troops have been assisting overwhelmed Border Patrol agents to secure the border ever since March 2021, when Abbott launched a program called “Operation Lone Star”. Troops keep watch over the river, and report to Border Patrol agents and troopers when they spot migrants and smugglers.

Most of the reasoning behind Lone Star is practical: Tens of thousands of migrants crossing the Rio Grande every month, traversing into border towns, and trespassing on private property harms the state, as do smugglers who bring everything from marijuana to fentanyl across and run it on Texas highways.

Part is political, however, an attempt by Abbott and his administration to bring national attention to the border crisis the Biden administration has midwifed, nurtured, and ignored. As Abbott explained when he launched Lone Star:

The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration. ... Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.

Biden has largely left it to his acolytes in the media to deride the operation as “costly” and “ineffective” (though even critics admit it’s popular) because by and large, CBP’s grateful for the help.

In advance of the end of Title 42 in early May, the state expanded its efforts by erecting c-wire fences along the river to deter illegal migrants and smugglers. Again, all indications are that CBP is also happy with those barriers, too — except for along 29 miles of the Rio Grande in the vicinity of Eagle Pass, in Maverick County.

For reasons that still remain wholly unclear, Border Patrol agents in September started cutting the c-wire in that 29-mile segment and at times, ripping it directly out of the ground with trucks. Moving the wire to save migrants in distress isn’t that uncommon elsewhere, but all indications in parts of Maverick County are that CBP was destroying the state’s barrier for no reason at all.

In response, Texas sued the administration in federal district court in October to stop CBP from damaging its property. As I explained shortly thereafter, the state adduced six separate legal bases for the relief it sought, two premised on the ancient common law torts of “conversion” and “trespass to chattels”, respectively.

U.S. district court Judge Alia Moses quickly put a brief kibosh on CBP’s actions to sort it all out, but then in November ruled that there was nothing she could do to stop the agency. Not that she was happy with what DHS was doing, concluding that it was engaging in “culpable and duplicitous conduct”.

Texas then sought relief in the U.S. Court of Appeals for the Fifth Circuit, which on December 19 ruled that Judge Moses had erred in dismissing Texas’ claims, and consequently enjoined DHS from destroying the c-wire fence while it considered the state’s appeal.

Notably, the Fifth Circuit really only delved into the state’s common-law tort claims at that time, leaving the question of whether Texas’ more mundane arguments under the Administrative Procedure Act (APA) — which governs executive-branch rules and policies — had any merit.

Forgetting Jefferson’s 6th Canon of Conduct. Thomas Jefferson wrote out 12 “canons of conduct” for his grandkids to follow, two of which remain popular aphorisms: “Never put off to tomorrow what you can do to-day; and “When angry, count 10 before you speak; if very angry, 100”. The most overlooked, in my opinion at least, is canon 6: “Pride costs us more than hunger, thirst and cold.”

Pride definitely entered this kerfuffle on January 2, when Elizabeth Prelogar — solicitor general (SG) of the United States and DOJ’s top courtroom lawyer — filed an application with the U.S. Supreme Court to vacate the circuit court’s injunction pending appeal.

What followed was a cycle of accusations, denials, and deflections — all in writing for all to see — and one major inflection point: the state’s seizure of Shelby Park from the city of Eagle Pass on the evening of January 10. The National Guard began erecting chain-link fences around the park and — depending on who you believe — either prevented CBP from entering the area to get to the river or didn’t.

Confusion over the timing and circumstances of a tragic incident that followed two days later — when a woman and two children drowned in the river somewhere near the park (where, exactly, isn’t clear) — simply heightened the tensions on both sides.

It’s not the Supreme Court’s job to sort out the facts in such matters, but that didn’t stop either Prelogar or the state from heaping disputed facts on the justices’ plates. In any event, on January 22 the Court issued a terse order vacating the Fifth Circuit’s injunction pending appeal.

International Attention. Outlets that had likely never heard of Eagle Pass or Maverick County quickly descended to report to their audiences what the locals thought about all of this.

CNN: “A Confederate general refused to surrender and fled to Mexico. The Texas park named for him is the center of another standoff.” NBC News: “‘It’s political propaganda’: Eagle Pass residents frustrated by border standoff.” Slate: “The Residents of Eagle Pass, Texas, Just Want Their Town Back.” Washington Post: “How a small Texas city landed in the spotlight during the state-federal clash over border security.” Xinhua: “Texas border town becomes hotspot for U.S. election year.”

By the way, Britannica describes Xinhua News Agency as “the press outlet of the Chinese Communist Party”, proving just how global this spat has gone (though the CCP for its part skipped the “Confederate general” angle).

And of course, the Wall Street Journal, which abandoned its normal stance as a staid financial daily of bloodless capitalism to breathlessly warn:

it isn’t hard to imagine a more direct conflict emerging if Texas continues trying to box out the Border Patrol in Eagle Pass. Would Mr. Abbott or other officials defy a resulting court order and risk contempt? Would Mr. Biden invoke the Insurrection Act to have the military intervene?

Respectfully, it may not be “hard” for the editorial board at the Wall Street Journal “to imagine a more direct conflict emerging” from what’s basically a property dispute, but it strains my imagination.

If you read though the submissions in this case and consider how little was at issue, Prelogar— and the administration generally — likely feels like the dog that caught the car. Passions rose, accusations flew, and filings got acrimonious. The Court’s order feels like an anticlimax, with Biden left with two bad options: rip up border barriers, which he now had the right to do; or give Abbott satisfaction by ignoring them.

Plainly the press, both national and Chinese Communist Party-sponsored, wants more: “frustrated” residents, stand-offs, human drama. Most importantly, many of them want a constitutional crisis where an upstart and bratty state gets smacked by a determined — and clearly righteous — administration.

The Corner of Irony and Hypocrisy. They likely aren’t going to get that state-federal showdown, however, not at least as long as $61 billion in Ukraine war funding and border “reforms” are on the table in Congress.

Nothing better symbolizes the president’s failed and feckless border policies better than images of DHS agents ripping up state barriers so migrants can enter the United States illegally. Abbott knows that — which is why Texas installed more c-wire barriers the day after the court ruled Biden could tear them out.

Smart northern Democrats — including New York City Mayor Eric Adams and Illinois Gov. J.B. Pritzker — have taken swings at Abbott over his migrant-busing schemes and ended up hitting Biden’s border policies instead. At least they had migrant crises of their own to deal with, and constituents to placate.

The administration’s destruction of the c-wire barriers in Maverick County was a petulant, self-inflicted wound. In asking the Supreme Court to bless that vandalism, Prelogar simply made the wound worse.

My colleague Mark Krikorian recently underscored the irony of one congressional chamber (the Senate) attempting to implement a border plan “crafted” by DHS Secretary Alejandro Mayorkas while at the same time the other chamber (the House) was trying to impeach him.

Imagine the irony — to say nothing of the hypocrisy — of Biden claiming Republicans don’t want to pass that Senate proposal because Donald Trump wants to “weaponize” the border crisis rather “than actually solve it”, and then steamrolling Texas National Guard troops to open the border to even more migrants.

You don’t have to imagine the first part — that’s what Biden did say in White House remarks on February 6. Which is why the second part won’t come to pass anytime soon.

Joe Biden wants to hide his border-security hypocrisy, lest it become an even bigger political liability. Which is why he won’t tear out any more Texas border wire — though he now has the right and has long had the inclination to do so — so long as border reforms are on the table in the Senate. My apologies to CNN and the CCP — the fight’s cancelled, for now.