Immigration lawyer laments Lombardo’s ‘dangerous’ support of Texas defying Supreme Court

Gov. Joe Lombardo, a long-time law enforcement official and former Southern Nevada sheriff, is one of several Republican governors who have sided with Texas’s defiance of a U.S. Supreme Court ruling that allows federal law enforcement to tear down razor wire barriers that have “increased safety risk” to border agents and migrants alike.

Though his support could be interpreted as “political theater,” Michael Kagan, director of the UNLV Immigration Clinic, warned that it is “political theater playing with some pretty explosive material so things can go really awry.” 

“There is a bigger argument that is being made by Texas and other states aligned with Texas, which now include Gov. Lombardo, which potentially seems kind of jaw dropping,” said Kagan. “It invokes possibilities of even something like a civil war or a major, possibly even violent, standoff between state and federal government.”

According to the Department of Homeland Security v. Texas, in which the Supreme Court sided with the federal government, the state placed coiled razor wire along a 29-mile stretch of Rio Grande riverbank. Included in the state’s barrier was land in the vicinity of the town of Eagle Pass, a place of frequent border crossings.. 

The razor wire has “increased safety risks to agents and migrants,” according to federal officials, who say there are stretches of land that don’t have any access points or breaks in the wire to allow Border Patrol agents or migrants to reach the other side, according to the suit filed by the Department of Homeland Security (DHS).

The Justice Department said at one point an “agent saw an ‘unconscious subject floating on top of the water’ but was ‘unable to retrieve or render aid to the subject due to the concertina wire barrier placed along the riverbank.’”

The fundamental question at play, Kagan said, is about immigration law and control of the border. 

Kagan said that it is established constitutional law that “managing immigration is a nearly exclusively federal responsibility” and that it should be done at a national level so states don’t have opposing immigration policies that get in the way of federal implementation. 

“It’s also a matter of foreign policy,” he added. “The border involves a delicate relationship with Mexico and it’s the responsibility of the federal government to handle foreign affairs.” 

Texas is contesting that long-standing interpretation of the law, he said. 

The United States Court of Appeals for the Fifth Circuit in November ruled Texas could use razor wire barriers that prevent federal border patrol from doing their job. 

The United States Supreme Court, in a 5-4 decision on Jan. 22, blocked that court ruling.

“What the Supreme Court actually did was lift an injunction,” Kagan said. “Border control, the federal government, should be permitted to access the border through this razor wire, which might mean cutting the wire that Texas has put up.”

Nearly two weeks later, Texas officials said it would not stop. 

“After the Supreme Court’s action, the federal government could send agents to just cut the wire and access the border,” Kagan said. “But how would Texas respond to that? We would hope it would just be theater, just talk. But there is a risk there could be a bigger confrontation and so far it seems like the federal government is trying to avoid it.”

Texas Gov. Greg Abbott has tried to justify his action arguing the state was fighting an “invasion.” 

Lombardo, along with every Republican governor in the country except Vermont’s Phil Scott, signed a letter late last week supporting Texas’s defiance of the Supreme Court. 

In the letter, they argued that Texas has the “constitutional right to self-defense”

“We stand in solidarity with our fellow Governor, Greg Abbott, and the State of Texas in utilizing every tool and strategy, including razor wire fences, to secure the border,” the governors wrote. “We do it in part because the Biden Administration is refusing to enforce immigration laws already on the books and is illegally allowing mass parole across America of migrants who entered our country illegally.”

Lombardo added on a social media post that “The Biden Administration has failed to defend the border, and Texas has a constitutional right to self-defense.”

Some governors have additionally pledged to send national guard to the border to support, though Lombardo isn’t considering it. 

“That keeps the Nevada National Guard out of this potential standoff with federal officers,” Kagan said.

Signing onto the letter is still significant. 

On a legal basis, Kagan said the Texas argument that it is fighting an “invasion” is absurd.

“First of all, the legal and Constitutional argument that Texas is trying to make is really outlandish and ridiculous,” he said.  “Unarmed migrants seeking a better life, no matter what one may think about that, are not an invasion. If words still have meaning in a court of law, the Texas argument is absurd.”

Kagan warned that such rhetoric being used in the letter from the Republican governors and other Republican politicians is “incredibly dangerous because it uses many words that are violent.”

“It uses terminology, like that concept of invasion, that is invoked by white supremacists and inspired acts of violence like the Walmart shooting in Texas, where a person killed Latinos at a Walmart because he thought it was an ‘invasion,’” Kagan said. 

Lombardo, he added, is in “a position to know better.”

“He is the governor of a very diverse state and one of the largest immigrant populations in the country,” Kagan said. “He might think he is just signing on to a bizarre, Constitutional argument, but some people might think he is endorsing an act of violence. He needs to be careful.” 

Kagan wasn’t the only one to decry Lombardo’s action. 

In a statement, the Progressive Leadership Alliance of Nevada criticized Lombardo for his lack of action on the housing crisis and added that it hopes “when Governor Lombardo finishes showing off for his friends, he can start doing the work to improve the lives of all Nevadans.”

Lombardo’s office did not respond to requests for comment.