Legal experts say Texas still has right to build wire fence at border despite Supreme Court ruling

Legal experts told Fox News Digital Texas is well within its constitutional rights and within the Supreme Court’s order to keep building the razor-wire fence even if the feds continue to cut it before an appeals court addresses the matter.

Gene Hamilton, vice president and general counsel at America First Legal and a former Justice Department official in the Trump administration, said Abbott’s continuation of installing the razor wire is “exactly the right move.”

“Unless and until a federal judge comes in and says, ‘You may not, State of Texas, put razor wire up along the border anymore,’ Texas should keep doing exactly what it needs to do. And, eventually, this turns into a game of will between the feds and the State of Texas,” Hamilton said.

Hamilton noted that he believed the Supreme Court’s controversial order was wrong and gave too much weight to the government’s assertions about the wire’s effect on the federal government’s ability to enforce immigration laws.

He asserted that Texas was not interfering with the government’s enforcement of the laws by creating additional barriers along the border and contended that those barriers actually facilitate the federal government’s ability to deter and prohibit illegal crossings at the locations where they were present.

“The Supreme Court’s two-sentence order simply vacated the injunction preventing the federal government from tearing down the barbed wire fencing Texas has placed on state property while the case is on appeal,” Hans von Spakovsky, senior legal fellow at the Edwin Meese III Center for Legal and Judicial Studies told Fox News Digital.

“The Supreme Court’s order does not prevent Texas from continuing to place barbed wire or other barriers along the border on state or private property. But while the case is pending, there is nothing preventing the federal government from tearing down the wire fencing,” he said.

As to Abbott’s Article 1 assertions, von Spakovsky said that “whether or not what is happening is an ‘invasion’ within the meaning of the Constitution is a controversial and legally undetermined issue.”

Article 1, Section 10, which Abbott says was “triggered” by Biden’s inaction at the border, states, “No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

“It is truly shocking and outrageous that the Biden administration has so intentionally and deliberately mishandled the security of our Southern border that states like Texas, for the first time in our history, feel the need to invoke the invasion clause,” von Spakovsky said.

Ultimately, he says, the matter will need to be decided by the Supreme Court.

In 2012, the Supreme Court decided a case against Arizona brought by the federal government, which sued after Arizona empowered state officials to enforce immigration laws.

Arizona lost that case, but the late Justice Antonin Scalia dissented, writing that “as a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty.”