Feds have legal 'upper hand' over Texas despite Biden creating 'existential crisis' at border, says Turley

Constitutional scholar Jonathan Turley told "America’s Newsroom" Friday that Texas will have a "hard time" mounting a constitutional defense in federal court over their border enforcement efforts, despite the Biden administration's role in creating an "unprecedented" migrant crisis in the state. Turley weighed in on Gov. Greg Abbott's contention that the state will prevail before a federal appeals court and the Supreme Court. 

ABBOTT INSISTS COURTS WILL SIDE WITH TEXAS IN BORDER DISPUTE WITH BIDEN ADMIN

JONATHAN TURLEY: Well, I certainly agree with the governor [Abbott] that, this is a violation of the understanding between the federal government and the states. The language in Article 1 Section 10 really deals with that agreement that we made with the states and the federal government, to move from the Articles of Confederation to a constitutional system with a strong federal government. I don't think anyone can honestly look at the southern border and say that the federal government has fulfilled its pledge. This is an unprecedented crisis brought about, I believe, by President Biden's policies. So, on all that, I agree. 

Razor wire is seen on the banks of the Rio Grande at Shelby Park on January 12, 2024 in Eagle Pass, Texas. The Texas National Guard continues its blockade and surveillance of Shelby Park in an effort to deter illegal immigration. The Department of Justice has accused the Texas National Guard of blocking Border Patrol agents from carrying out their duties along the river. (Photo by Brandon Bell/Getty Images) (Brandon Bell/Getty Images)

The problem is that federal courts are unlikely to agree that this is the invasion referenced in the Constitution. There's also a reference to imminent danger. And certainly looking at hundreds of thousands of people crossing and effectively open border presents an imminent danger. But the courts are likely to define that in the context of that provision, in the context of an invasion by it, as with a foreign state. So I think Texas is going to have a hard time making that constitutional argument in court. 

Asylum seekers wait to be processed by U.S. Border Patrol agents after crossing the Rio Grande from Mexico into the United States on Sept. 30 in Eagle Pass, Texas. Border security and immigration have become major issues in ongoing negotiations to fund the U.S. government. A recent surge in immigrant crossings at the U.S. southern border has overwhelmed authorities.  (John Moore/Getty Images)

The problem for the Biden administration, is that it has really created, an existential crisis here, by effectively having an open border. I think that many judges would be sympathetic to Texas, that they have a right to do something. They're being overwhelmed. Even Democratic mayors are now objecting that this is overwhelming their cities. And so the idea of the federal government removing barriers, at this time is really otherworldly. But it's – you have to keep in mind on this fight, the federal government has the upper hand, legally. They tend to get a lot of deference along the border. 

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Gov. Abbott is touting a right to "self-defense" from a migrant "invasion" at the southern border, as the state fights a multi-pronged battle with the Biden administration.

"The federal government has broken the compact between the United States and the States," a lengthy statement by the Texas Republican says. "The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting states, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them."

Abbott is currently fighting multiple legal battles with the administration. The federal government has threatened legal action over Texas’ seizure of Shelby Park near Eagle Pass, while lawsuits are ongoing over the administration’s cutting of razor wire set up by Texas and the establishment of buoys in the Rio Grande.

The Supreme Court this week found in the administration's favor when it granted an emergency appeal to allow agents to keep cutting border wire set up by Texas along the border. Texas this week published images of it strengthening physical barriers along Eagle Pass. 

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Fox News' Adam Shaw contributed to this report. 

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