By Brian Lupo
On January 14th, the Department of Homeland Security sent a cease-and-desist letter to Texas Attorney General Ken Paxton demanding that the Texas Military Department end it’s “enhanced border security measures in Eagle Pass’s Shelby park.” DHS demanded they comply by today, January 17th. The Gateway Pundit reported that armed Texas National Guardsmen had kicked out U.S. Border Patrol and CBP agents from Eagle Pass’s Shelby Park in the Rio Grande sector.
AG Paxton published a response letter today debunking several claims made by DHS in their original letter, stating, “Because the facts and law side with Texas, the State will continue utilizing its constitutional authority to defend her territory, and I will continue defending those lawful efforts in court.”
“Your demand letter rests on a more fundamental misunderstanding of federal law and the role of sovereign States within our constitutional order,” writes AG Paxton. He then cites the federal statute DHS invoked in their letter that gives US Border Patrol “warrantless access to land within 25 miles of the border”. But AG Paxton points out that it states “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.”
AG Paxton argued that because a federal court found DHS as an “utter failure…to deter, prevent and halt unlawful entry into the United States”, DHS cannot “claim the statutory duties [it is] so obviously derelict in enforcing as excuses to puncture to puncture [Texas’s] attempts to shore up the [Biden Administration’s] failing system.” Texas v DHS, 2023 WL 8285223.
In return, AG Paxton wrote that the Biden Administration had failed to uphold their duties under Article IV, Section 4 of the U.S. Constitution that states the federal government “shall protect each of [the States] against Invasion.”
The letter then lists several “false claims” that “must be debunked”, including the claim that U.S. Border Patrol is being restricted from responding to a medical emergency in part because they withdrew from Shelby Park last year:
- Texas allows prompt entry into Shelby Park by any U.S. Border Patrol personnel
responding to a medical emergency, and this access is not “limited to use of the boat
ramp,” as you say. TMD has ordered its Guardsmen not to impede lifesaving care for
aliens who illegally cross the Rio Grande. To that end, TMD has erected gates that allow
for rapid admission when federal personnel communicate the existence of some medical
exigency.- Your supposed commitment “to rendering emergency assistance to individuals in need”
is belied by the fact that U.S. Border Patrol withdrew from Shelby Park last year and
advised the Texas Department of Public Safety that federal personnel would not be present to
administer aid unless Texas called for help. Moreover, the Del Rio Sector appears to be the
only place along the Rio Grande where DHS does not keep boats on the water around the
clock to provide water-rescue capabilities.- Your attempt to blame Texas for three migrant deaths on January 12, 2024 is vile and, as
you now should be aware, completely inaccurate. “Three individuals drowned” that night on the Mexican side of the Rio Grande, but that tragedy is your fault. Contrary to your letter, TMD did not prevent U.S. Border Patrol from entering Shelby Park to
attempt a water rescue of migrants in distress. The federal agents at the gate did not even
have a boat, and they did not request entry based on any medical exigency. Instead, the
federal agents told TMD’s staff sergeant that Mexican officials had already recovered
dead bodies and that the situation was under control. Texas’s Guardsmen nevertheless
made a diligent search, only to confirm that Mexican officials had recovered the migrants’
bodies, downriver from the Shelby Park boat ramp and on their side of the river.- Texas has seen no evidence, and you cite none, showing that the migrants who drowned
actually reached the Texas shore. And this despite TMD Guardsmen surveilling the
waters of the Rio Grande near Shelby Park with spotlights, night-vision goggles, and
thermal-imaging devices.- As a federal court has already ruled, it is DHS and Biden Administration policies that are
leading migrants to risk their lives, and sometimes lose them, trying to cross the Rio
Grande. If you really care about migrants being put in “imminent danger to life and
safety,” your agency should stop driving them into the waters of the river. Nobody
drowns on a bridge. A federal court recently rebuked the Biden Administration for
creating this dangerous situation: “If [DHS] agents are going to allow migrants to enter
the country, and indeed facilitate their doing so, why make them undertake the dangerous
task of crossing the river? Would it not be easier, and safer, to receive them at a port of
entry?” Texas v. DHS, 2023 WL 8285223, at *4 (W.D. Tex. Nov. 29, 2023). By
“creat[ing] a perverse incentive for aliens to attempt to cross” the Rio Grande, the court
found, you are “begetting life-threatening crises for aliens and agents both.”- Although Shelby Park does sit on “municipal land owned by the City of Eagle Pass,” as
you say, TMD has now taken that land from the City for law-enforcement and disasterrelief purposes in accordance with Texas Government Code § 418.017(c). It is immaterial that U.S. Customs and Border Protection entered into a “Memorandum of Agreement
with Eagle Pass . . . on December 13, 2015,” because the State of Texas never approved
that transaction as required by Article IV, § 10 of the Texas Constitution. Your federal
agency cannot have something that was not the City’s to give.
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