CBS News' January 26, 2024 Texas attorney general refuses to grant federal agents full access to border park: "Your request is hereby denied" links to Texas Attorney General Ken Paxton's open letter to the US Department of Homeland Security. Here is a chunk from the middle (I've added one additional paragraph break for readability, and the parenthetical "emphasis added" is part of the letter, not my words):

Without clarifying both the metes and bounds of the federal government’s alleged “property rights,” and how its lawful access to such property has been in any way impeded, the State cannot meaningfully assess your demand. But to the extent your agency demands access in order to once again transform Shelby Park into “an unofficial and unlawful port of entry,” Texas v. DHS, 2023 WL 8285223, at *14 (W.D. Tex. Nov. 29, 2023) (Moses, C.J.), your request is hereby denied.

To be clear, your latest letter points to no law supporting the agency’s right to do that. In an unexplained reference to “Border Patrol’s responsibility and statutory authorities,” you parrot statutory language about the need “to patrol the border.” But you (unsurprisingly) omit the statutory language that your agency continues publicly to disregard: Border Patrol is tasked with “patrolling the border to prevent the illegal entry of aliens.” 8 U.S.C. § 1357(a)(3) (emphasis added).

Instead, you fixate on a recent order from the Supreme Court of the United States. As you know, that unsigned order supplied no rationale for vacating a Fifth Circuit injunction. It may be that the Supreme Court was misled by allegations levelled by your federal agency, and which you repeated in your January 14th letter to our office. In any event, the Court’s order certainly said nothing about access to Shelby Park, which even the federal government’s lawyers acknowledged is “not presented” in that ongoing litigation. See Second Supplemental Memorandum at 5, DHS v. Texas, No. 23A607 (Jan. 15, 2024).

I'm not a lawyer but I enjoy reading arguments (and opinions of judges).

The Texas AG seems to me at least to suggest that

  1. US Department of Homeland Security is "fixating" on an order from the Supreme Court (as if that's bad)
  2. The decision may deserve less attention (or less compliance?) because the court was misled.

Maybe item #1 is superfluous, just bravado or perhaps written for its political optics rather than as a legal basis. But item #2 perplexes me. It seems to suggest that if we say that an order from the Supreme Court was the result of insufficient or inaccurate information, then we can refuse to go along with the order and berate those that choose to follow it.

It seems to be saying "Oh, if they only knew what I know, they'da never said that."

Question: Is this kind of justification for a state's refusal to cooperate with a federal agency common? Does it have some kind of basis in law, or precedent?

  • note: it's hard for me to follow all of the details of the spat between Texas and DHS, so I may not fully appreciate some aspects. But I think my actual question as written is mostly agnostic of the specifics of their dispute.
    – uhoh
    Commented Jan 27 at 9:42

1 Answer 1


Is it common for a state AG to publicly disagree with a Supreme Court decision? Absolutely. Constantly. Is it common for them to publicly announce their intention to deliberately disobey one? No, and not here.

In this instance, per the text you did not emphasize, the AG’s contention is that the court’s order does not apply to DHS’s request.

Of course, DHS may disagree with this opinion, and haul them back into court. If and when they do, the AG is likely to emphasize the “this wasn’t covered by the previous order” argument rather than the “y’all done been misled” argument.

  • I see. So not just one, but both items I mention are perhaps more commentary of a political nature. There's nothing unusual about suggesting the order is "misinformed". I simply failed to recognize the part where they said that it doesn't apply?
    – uhoh
    Commented Jan 27 at 11:36
  • 2
    That’s my read. But remember, this is not a court filing. It’s notionally for the DHS, actually for the press, and not intended as a complete formal argument.
    – Sneftel
    Commented Jan 27 at 11:48
  • 1
    @uhoh "In any event, the Court’s order certainly said nothing about access to Shelby Park, which..." so it seems it diagonally alledge that the order does not concern the matter at hand. Commented Jan 27 at 18:58

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