One of the most well-settled questions in US constitutional law is that duly enacted federal laws overcome all state laws that conflict with them, and that states may not prevent federal officials from performing their official job duties.
This principle is written into the Constitution itself, which provides that federal law “shall be the supreme law of the land; and the judges in every state shall be bound thereby.” The Supreme Court has even held, in In re Neagle (1890), that states may not bring murder charges against a federal official who killed someone while performing his official duties.
Nevertheless, last month a federal appeals court reached the astonishing conclusion that the state of Texas may erect razor wire barriers to prevent federal border patrol officers from doing their jobs, and it ordered the border patrol not to cut these wires except in very limited circumstances. The decision was handed down by the United States Court of Appeals for the Fifth Circuit, a far-right court dominated by MAGA judges, that frequently hands down decisions that are wildly at odds with existing law.
On Monday, the Supreme Court handed down a very brief order in Department of Homeland Security v. Texas blocking this Fifth Circuit order. The order was decided in a 5-4 vote — which means that four justices appear to believe that Texas may use razor wire to restrain federal officials engaged in their official duties.
The four dissenters were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Chief Justice John Roberts and Justice Amy Coney Barrett, both Republican appointees, crossed over to vote with the Court’s three Democratic justices.
The Texas case arises out of that state’s attempt to limit border crossings in Eagle Pass, Texas by lining nearly 30 miles of the US-Mexico border with razor wire. Much of this wire is along a river bank where migrants sometimes cross into the United States.
This razor wire barrier, moreover,…
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