McALLEN, Texas -- The Justice Department on Friday asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement.
The filing detailed the state-federal standoff in the hours after Texas took control of a city park in Eagle Pass that sits along the banks of the Rio Grande.
The request comes after Texas put up fencing to take control of the nearly 50-acre site, which was a crossing point for thousands of migrants entering from Mexico last year. Although a similar power struggle played out in the same region more than a year ago, the area Texas closed off this week prevents federal agents from accessing a larger and more visible crossing spot.
Along one stretch, armed Texas National Guard members and their vehicles are preventing Border Patrol agents from accessing the river, the Justice Department said in a court filing. The Texas National Guard is also alleged to have used a military Humvee to keep Border Patrol agents off an access road.
"Because Border Patrol can no longer access or view this stretch of the border, Texas has effectively prevented Border Patrol from monitoring the border," the Justice Department wrote in a filing.
"Texas' new actions ... demonstrate an escalation of the state's measures to block Border Patrol's ability to patrol or even to surveil the border and be in a position to respond to emergencies," U.S. Solicitor General Elizabeth B. Prelogar wrote.
The Border Patrol has the responsibility under federal law to "detect and prevent the illegal entry of individuals into the United States," according to Customs and Border Protection.
Abbott told reporters that Texas has the authority to control access to any geographic location in the state.
"That authority is being asserted," Abbott said.
Legal experts disputed Abbott's assertion about Texas' authority.
"That's just not true," said Steve Vladeck, a law professor at the University of Texas at Austin. "Because a lot of that ingress and egress happens at an international border, and control of ingress and egress at international borders is not up to individual states. If it were, we would have 19 different immigration policies, more if you count airports."
Kevin Johnson, dean of the University of California at Davis law school, called Abbott's border-related actions "unprecedented" and "lawless."
"This is the same governor who complains they haven't been enforcing border [security] laws, and now he's making it impossible for them to get to the border," Johnson said.
The closure of Shelby Park was an escalation of the governor's border enforcement efforts known as Operation Lone Star. The state and federal government are involved in multiple legal disputes over actions Texas has taken since 2023, including the use of buoys in the middle of the international river, the installment of razor wire and an upcoming law that will allow police to arrest migrants.
Abbott defended closing off the park as he faced backlash from Democrats for telling conservative radio host Dana Loesch last week that Texas has done everything to curb illegal crossings short of shooting people. Loesch had asked Abbott how far Texas could go on the border before someone might arrest him.
"The only thing that we're not doing is we're not shooting people who come across the border because of course the Biden administration would charge us with murder," he said as he discussed a New York City lawsuit against charter bus companies that Abbott has used to transport migrants from Texas.
"This is a dramatic escalation by Texas of what had to this point really been a heated but mostly on-paper policy dispute," Vladeck said.
Supreme Court precedent is clear, he said, that the federal government has the power to control the border. That authority pre-empts state laws and actions.
"States can't prevent the federal government from patrolling the border," he said.
Vladeck described the situation in Eagle Pass as "ominous," given the prospect of a confrontation between Texas National Guard soldiers blocking access to the park and armed Border Patrol agents.
"All it takes is one person having a bad day, or one accident, and all of a sudden we have an incredibly tragic situation," he said.
Mexico's foreign relations secretary denounced Abbott's comments, saying they could lead to violence and are dehumanizing to migrants.
On Friday, Abbott said he was making a distinction of what Texas can and cannot do on the border. "I was asked to point out where the line is drawn about what would be illegal and I pointed out something that is obviously illegal," he said.
Texas notified the Eagle Pass government Wednesday that the Department of Public Safety would be closing public access to Shelby Park.
Concern grew when Border Patrol noted that it, too, lost access to the park, which agents use to launch boats into the Rio Grande. The area also served as a staging area where federal officers would take migrants into custody and process them. Border Patrol's access to the site for surveillance was similarly curtailed.
The Justice Department's emergency request to the Supreme Court says agents no longer have access to a 2.5-mile stretch of the border in the region. The filing was made as part of the U.S. government's lawsuit over the concertina wire the state installed along roughly 30 miles near Eagle Pass.
The union for Border Patrol agents, the National Border Patrol Council, praised the state's move.
"By taking control of an area where so many illegal aliens are simply surrendering, he's freeing up BP agents to patrol areas with high numbers of illegal aliens who attempt to escape arrest," the union said in a message on X, formerly known as Twitter.
In 2022, a Texas pecan farm got caught in a similar dispute between Abbott and the Biden administration when the Texas Department of Public Safety moved in without the landowner's consent and revoked a lease between the landowner and Border Patrol.
The state's policies have been called into question not only by outside critics but internally when a trooper's account over denying water and urgent medical care made headlines in July.
Information for this article was contributed by Valerie Gonzalez and Acacia Coronado of The Associated Press and Aaron Torres and Joseph Morton of The Dallas Morning News (TNS).
Texas Department of Public Safety officers work inside a fenced off Shelby Park, Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers work inside a fenced-off Shelby Park, Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers work inside a fenced off Shelby Park, Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers guard an entrance to Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers guard an entrance to Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers guard an entrance to Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers guard an entrance to Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers work inside the fenced-off Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)
Texas Department of Public Safety officers guard an entrance to Shelby Park on Thursday, Jan. 11, 2024, in Eagle Pass, Texas. The Justice Department on Friday, Jan. 12, asked the Supreme Court to order Texas to stop blocking Border Patrol agents from a portion of the U.S.-Mexico border where large numbers of migrants have crossed in recent months, setting up another showdown between Republican Gov. Greg Abbott and the Biden administration over immigration enforcement. (Sam Owens /The San Antonio Express-News via AP)