Greg Abbott Poised to Triumph in Supreme Court Rematch With Joe Biden

The constitutional standoff between Texas Governor Greg Abbott and the Biden administration over the Texas-Mexico border will "very likely" be decided by the Supreme Court, according to prominent legal experts, with one predicting it could "side with the state in its quest to usurp the federal government's authority."

On January 22 the Supreme Court decided in a 5-4 verdict to overturn an injunction from the Fifth Circuit court that blocked the Biden administration from ordering federal agents to remove razor wire from the Texas-Mexico border, which was placed there to discourage migrants from crossing on the orders of Governor Abbott.

At Abbott's instruction the Texas National Guard also took control of Shelby Park in Eagle Pass, a frequently used migrant arrival point, and refused to allow federal Customs Border and Protection officials access to the site.

Abbott reacted with fury to the Supreme Court judgment, saying he was invoking "Texas's constitutional authority to defend and protect itself." He argued that, under the Constitution, this is "the supreme law of the land and supersedes any federal statutes to the contrary." He received a joint statement from 25 other Republican governors offering "solidarity."

In an article published by politics site Public Notice, which describes its purpose as "explaining what's happening on the American right for a largely progressive audience," attorney Lisa Needham said it is "almost inevitable" that the dispute will come back to the Supreme Court where based on the January 22 ruling "at least four justices already agree with Texas."

Despite the January 22 ruling going against Abbott, she suggested if the Supreme Court decides to examine the case in full it could allow the governor's border controls to remain, with Chief Justice John Roberts and Justice Amy Coney Barrett likely to be the key swing voters.

Needham wrote: "The Supreme Court has already weighed in, but that was only on Texas's request that the federal government be enjoined, on an emergency basis, from cutting the razor wire. No court has yet ruled on the substance of the matter, meaning there has been no complete review of all the facts and law in the case.

"The full case still needs to make its way through the lower courts, and it is almost inevitable that it will then be back up at the Supreme Court again, where it seems that at least four justices already agree with Texas."

She added: "Simply because the Supreme Court vote to vacate the injunction was a 5-4 split in favor of the federal government doesn't mean an ultimate ruling on the case would come out the same.

"Roberts and Barrett may have only believed that Texas was wrong to ask for an emergency injunction, but they could eventually side with the state in its quest to usurp the federal government's authority."

Speaking to Newsweek Neama Rahmani, president of West Coast Trial Lawyers, agreed the issue will "very likely end up before the Supreme Court" as it is "exactly the type of case the justices are meant to resolve."

He argued the justices could end up supporting Texas, despite the Constitution's supremacy clause that gives primacy to federal over state laws, saying: "The previous ruling was limited to whether Texas can prevent Border Patrol agents from removing or cutting the barbed wire. There are potentially bigger issues at play here though, and the conservative justices haven't been shy to craft broad rulings to reverse years of precedent.

"Immigration has historically been exclusively a federal issue, but I wouldn't be surprised if the Supreme Court finds a creative way to allow for state action to enforce our nation's immigration laws notwithstanding the supremacy clause and pre-emption doctrine. Justices Roberts or Barrett are far from locks to support the Biden administration, so all eyes will be on them."

V. James DeSimone, a Los Angeles-based civil rights attorney, accused Texan authorities of "causing death and injury to vulnerable families in the name of protecting property rights" in an interview with Newsweek, adding: "If this isn't a case for the United States Supreme Court to resolve then nothing is."

If this does happen DeSimone said the Biden administration has a "solid legal basis for its position" due to the supremacy clause, adding: "A justice who would change his or her vote to side with Texas in this dispute would be on shaky ground."

If the case reaches the Supreme Court, DeSimone said judges "should side with the Biden administration in this dispute, even if it's a narrow majority of justices." He added: "The 5th U.S. Circuit Court of Appeals gave short shrift to the Supremacy Clause of the Constitution when it sided with Texas. Instead, the appeals court said the principle of sovereign immunity provided no justification for the Border Patrol to cut down razor wire that had been installed by the Texas National Guard."

DeSimone argued Supreme Court justices likely considered the supremacy clause in their judgment of January 22, suggesting it would be a big call for them to reverse course if they end up ruling on the case again.

Needham concluded her article by arguing the dispute is now a win-win for Abbott, commenting: "Either way, Abbott gets what he wants.

"He now has the full-throated support of conservative elected officials who don't believe the federal government should have any authority if Democrats are in power, and he has private citizens willing to show the same eager violence as those who supported Trump's insurrection. There's just no way in which this ends well."

Newsweek contacted Abbott's office by telephone, voicemail and online contact form at 5:50 a.m. ET on Wednesday. This article will be updated if they wish to provide a comment.