By Jordan Carlson

Eagle Pass, Texas has become the latest battleground in the perennial struggle between the federal government and the states.[1] In a January 22, 2024 order, the Supreme Court vacated an injunction that had prevented federal agents from cutting wire placed on the Texas-Mexico border by Texas.[2] The case is one of several recent disputes between Texas and the federal government.[3] However, the Supreme Court’s laconic order vacating the injunction, consisting of only fifty-five words,[4] is unlikely to shed any light on the constitutional concerns that have emerged.

Federal Prerogatives Along the Border

Control over the borders of the United States is traditionally viewed as a fundamental federal function.[5] The Constitution expressly grants the federal government the ability to establish rules regarding citizenship,[6] the power to regulate commerce with foreign nations,[7] and broad authority over foreign affairs.[8] As recently as 2012, the Supreme Court held that “the Government of the United States has broad, undoubted powers over the subject of immigration and the status of” noncitizens.[9] Consequently, in a conflict between a federal immigration law and a state law, the status quo says the conflicting state law must yield to federal authority.[10]

To enforce its immigration policies, Congress established the federal Border Patrol, a law enforcement agency under the control of the Department of Homeland Security.[11] Border Patrol agents are empowered by Congress under 8 U.S.C. 1357(a)(3), to access any private land within twenty-five miles of an international boundary for the purpose of patrolling the border and executing its functions.[12]

Operation Lone Star

In 2021, Texas launched “Operation Lone Star” to aid federal authorities, including the Border Patrol, in securing the Texas-Mexico border.[13] The operation included the placement of concertina wire along the border on known entry points for illegal migrants, including a twenty-nine-mile stretch near Eagle Pass, Texas,[14] which the state claims is an effective deterrent to curb such illegal crossings.[15]

However, federal authorities are concerned that the wire restricts the federal government’s access to sections of the border.[16] The wire stretches along the riverbank on the U.S. side of the Rio Grande, and runs across gates and boat ramps which federal authorities use to access to the river and surrounding areas.[17] The federal government claims the wire hinders Border Patrol agents in their duties and prevents them from rendering emergency aid to endangered migrants.[18] As a result, Border Patrol has adopted a practice of cutting the wire in the course of its duties, much to Texas’s chagrin.[19]

On October 24, 2023 Texas filed an action against the United States for conversion and trespass of chattels for damage to its concertina wire fences.[20] The district court found that Texas had a likelihood of success on its claims as the federal government lacked the right to cut the wire, and granted a temporary restraining order preventing the Border Patrol from further damaging it.[21] However, the district court later denied Texas’s request for preliminary injunction on grounds that the federal government possessed sovereign immunity against Texas tort law.[22] The Fifth Circuit reversed on appeal and enjoined the federal government from “damaging, destroying, or otherwise interfering with Texas’s [concertina] wire fence.”[23] The federal government soon after applied to the Supreme Court to vacate the injunction.[24]

Arguments Presented to the Supreme Court

In support of its application to vacate, the federal government argued that 8 U.S.C. 1357(a)(3) requires the Border Patrol to have access to the border, including the areas around Eagle Pass.[25] Because the Supremacy Clause prohibits state law from restraining federal agents from carrying out their federally authorized activities,[26] Texas cannot use its state tort law to restrict Border Patrol agents from accessing the border.[27]

In opposition, Texas argued that no Supremacy Clause issue was presented in this case, as there is no conflict between Texas’s immigration laws and the immigration laws of the federal government.[28] Rather, Texas is asserting its rights as the property owner of the destroyed concertina wire.[29] While federal law preempts state law under the Supremacy Clause, the Supremacy Clause does not permit the federal government to take any unbridled action to achieve its goals.[30] Texas argues that to allow federal agents to needlessly destroy Texas’s property under the pretext of federal law would permit the government to destroy any obstruction within twenty-five miles of an international border at its convenience.[31]

The Supreme Court’s Lackadaisical Order

This case gave the Supreme Court an opportunity to analyze whether a state law may lawfully, though incidentally, impede the functions of a federal agency carrying out its congressionally granted responsibilities.[32] A Texas victory would have provided state’s with a potent tool to use against the federal government on matters of immigration.

However, the Supreme Court issued a terse order simply vacating the Fifth Circuit’s injunction with no further explanation.[33] While the Border Patrol is once again permitted to cut Texas’s wire, the 5-4 split on the order may indicate the Court’s wariness over the outcome.[34] In the context of the Texas’s other pending battles with the federal government,[35] Greg Abbott’s novel argument on the Constitution’s Invasion Clause,[36] and the recent impeachment attempt of the Secretary of Homeland Security,[37] perhaps the Supreme Court is simply saving its breath for other matters in the near future.

[1] See Valerie Gonzalez, How a Small Texas City Landed in the Spotlight During the State-Federal Clash Over Border Security, AP News (Feb. 3, 2023 6:31PM)

[2] Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[3] See United States v. Abbott, 87 F.4th 616 (5th Cir. 2023) (regarding a floating barrier Texas placed in the Rio Grande River); see also United States v. Texas, No. 1:24-cv-00008 (W.D. Tex. filed Jan. 3, 2024) (challenging Texas statute allowing Texas courts to deport illegal immigrants).

[4] Dep’t of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[5] See Arizona v. United States, 567 U.S. 387, 394 (2012) (quoting Toll v. Moreno, 458 U.S. 1, 10 (1982)); see also Mathews v. Diaz, 426 U.S. 67, 79–80 (1976); see also Hines v. Davidowitz, 312 U.S. 52, 62–63 (“[T]he supremacy of the national power in the general field of foreign affairs, including the power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of the Federalist in 1787, and has since been given continuous recognition by this Court.”).

[6] U.S. Const. art. I, §8, cl. 4.

[7] U.S. Const. art. I, §8, cl. 3.

[8] U.S. Const. art. I, §8, cl. 11; U.S. Const. art. II, §2.

[9] Arizona v. United States, 567 U.S. 387, 394 (2012).

[10] Hines v. Davidowitz, 312 U.S. 52, 66 (1941) (“[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, ‘the act of Congress, or the treaty, is supreme; and the law of the State . . . must yield to it.’”).

[11] 1924: Border Patrol Established, United States Customs and Border Protection (Aug. 3, 2023),

[12] See 8 U.S.C. 1357(a)(3).

[13] State v. Dep’t. of Homeland Sec., 88 F.4th 1127, 1130 (5th Cir. 2023).

[14] Id. at 1131.

[15] Response in Opposition to the United States’s Application to Vacate Injunction at 3–4, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024) (“[T]he wire serves as a deterrent – an effective one at that . . . the wire was so successful that illegal border crossings dropped to less than a third of their previous levels.”).

[16] Brief for Appellees at 21, State v. Dep’t of Homeland Sec., 88 F.4th 1127 (5th Cir. 2023) (No. 23-50869).

[17] Id. at 20.

[18] Id.

[19] Response in Opposition to the United States’s Application to Vacate Injunction at 3, Dep’t of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[20] Texas v. Dep’t. of Homeland Sec., No. DR-23-CV-00055-AM, 2023 U.S. Dist. LEXIS 197502, at *3. (W.D. Tex. Oct. 30, 2023).

[21] Id. at *7.

[22] Id. at *3.

[23] State v. Dep’t. of Homeland Sec., 88 F.4th 1127, 1130 (5th Cir. 2023).

[24] Application to Vacate the Injunction Pending Appeal at 1–2, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[25] Application to Vacate the Injunction Pending Appeal at 2, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[26] Id.

[27] Id.

[28] Response in Opposition to the United States’s Application to Vacate Injunction at 24-25, Dept. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[29] Id. at 25.

[30] Id.

[31] Id.

[32] Application to Vacate the Injunction Pending Appeal at 24–26, Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577 (U.S. Jan. 22, 2024).

[33] Dep’t. of Homeland Sec. v. Texas, No. 23A607, 2024 U.S. LEXIS 577, at *1 (U.S. Jan. 22, 2024).

[34] Jordan Rubin, Supreme Court Splits 5-4 Against Texas on Border Control, Razor Wire, MSNBC (Jan. 22, 2024 4:35PM),

[35] See generally United States v. Abbott, 87 F.4th 616 (5th Cir. 2023); see also United States v. Texas, No. 1:24-cv-00008 (W.D. Tex. filed Jan. 3, 2024).

[36] Rafael Bernal, Abbott Doubles Down on Border ‘Invasion’ Declaration After Supreme Court Blow, The Hill (Jan. 24, 2024, 4:08 PM),

[37] Kaia Hubbard, The House Just Impeached Alejandro Mayorkas. Here’s What Happens Next., CBS News (Feb. 14, 2024),

By Adrian E. Simioni

The continued closure of international borders in response to the COVID-19 pandemic has had devasting economic effects on trade, tourism, and service industries across the globe.[1] However, one overlooked, entirely human effect has been the profound impact of border closures on unmarried couples and families residing in different countries. Their designation as “non-essential” tourists, blanket entry bans, and inconsistent and rapidly changing travel restrictions have left numerous couples and families separated from the very beginning of the COVID-19 outbreak, and current infection trends do not bode well for timely reunions.[2]

This is an issue near and dear to me.  I have been in a long-distance relationship with a French national and permanent resident of the Czech Republic since the beginning of 2019. We met when I was teaching English in Prague, while she worked at a hotel in the city.  She has been seeking a visa to live in the United States (“U.S.”) since I left the Czech Republic to attend the Wake Forest University School of Law. Long-distance relationships are difficult to manage and maintain at the best of times, but the pandemic has shattered any certainty we had. We were on a trip to Canada in March when the European Union (“E.U.”)-U.S. border abruptly shut due to the onset of the COVID-19 pandemic; she was forced to return to the E.U. while I had to fly back to the U.S.  We were suddenly confronted with the prospect of being unable to reunite for an indeterminate amount of time. As the months rolled by, our hope waned. A reunion in May was cancelled, ideas for August were scrapped, and the U.S.’s announcement that it was suspending the consideration of routine visas for most applicants destroyed our plans for a permanent reunion.[3] We were left clinging onto any hope we could find.  Similar problems persist for other couples and families around the world.[4]

In response to these grim circumstances, an internet movement has been gathering steam. Love is Not Tourism is an organization formed for the express purpose of reuniting these separated couples and families while still acknowledging that general restrictions on tourism are necessary.[5] Love is Not Tourism’s argument is simple. “The closure of international borders in the wake of the COVID-19 pandemic was – and still is – sensible and even necessary. . . . [b]ut love is not tourism. This is not just about a summer holiday, it is about mental health and the future of people all around the world.”[6] Through their work, and the efforts of thousands of supporters filing petitions and contacting government officials around the world, as of October 27, 2020, twelve European countries and Canada have relaxed their entry restrictions on unmarried people and family members traveling to reunite with their loved ones,[7] with intergovernmental bodies like the European Commission explicitly encouraging other states to follow suit.[8]

My partner and I caught a very lucky break at the end of September when, through petitions supported by Love is not Tourism, the Czech Republic became one of the few countries that permit entry for unmarried partners of E.U. citizens residing in-country.[9] My application was approved within a week, and on October4, I arrived in Prague, where I am blogging from now. While we have been fortunate, when I am inevitably forced to return to the U.S., my French companion will be barred from visiting me.  The U.S. maintains strict travel restrictions and entry bans,[10] and the government has shown little interest in reunions.[11]

But how can countries facilitate the reunion of couples and families without jeopardizing the health of their citizens? The vast majority of countries continue to deal with the COVID-19 outbreak with total or partial border closures, though the trend has been shifting as countries slowly ease travel restrictions.[12] As case totals rise rapidly across the globe, however, governments have indicated that harsh travel restrictions can be reintroduced at any time, making reunions subject to both rapidly changing circumstances and differing immigration procedures.[13] Beyond measures imposed on foreign nationals, couples and families are becoming increasingly affected by measures imposed by their own country, such as two-week mandatory quarantines upon return, which makes travel to countries that also have mandatory quarantines unfeasible except for those in exceptional circumstances, like myself.[14] Some countries have even imposed strict exit bans, effectively stranding their own citizens within their country and preventing eligible couples and families from taking advantage of travel to countries which have allowed reunion.[15]

To facilitate the reunion of couples and families, Love is Not Tourism advocates for countries to implement a “self-paid test upon arrival and quarantine until a negative result is received or a 14 day strict quarantine” instead of arbitrary entry bans, and the inclusion of unmarried couples and family members as a part of countries’ “essential travelers” lists.[16] Studies indicate that total and partial travel bans are most effective at the very start of an outbreak, but are unsustainable in the long term as the outbreak spreads globally, making travel bans a delay strategy and not preventative.[17] On the other hand, testing travelers upon arrival and isolating for fourteen days reduces case importation numbers by an average of 91.7 percent, relative to allowing all travelers in unchecked, which would reduce infection risks from imported cases to a level that would permit necessary business and leisure travel.[18] This is similar to the procedure adopted by the Czech Republic prior to my arrival.[19] Even if countries refuse to remove hard entry barriers, the tiny number of people affected by unmarried couple and family travel ban exemptions would pose negligible risks, especially when compared to the risks ignored by entry policies that arbitrarily discriminate between places of origin.[20] Finally, the risk of abuse by those masquerading as a couple or family member is also low; countries which have implemented Love is not Tourism exemptions require strictly vetted applications with clear document requirements.[21] The risks of implementing these policies are low, while the benefits for families and couples are quite high.

Europe is in the grip of a second wave of outbreaks, and the U.S. has recently broken case count records last set in July.[22] The hope that countries will relax their hard entry bans is fading. The mental health and well-being of couples and families around the world is at risk. As put by one affected person, “I wish authorities understood that these travel bans are having immense mental health consequences for those of us who can’t be with our loved ones during these troubling times. I want them to know that we exist.”[23] Petitions targeting governments around the world and situation updates can be found on Love is Not Tourism’s website.[24] Every signature helps, and brings families and couples one step closer to a temporary reunion and an end to the months of isolation from their loved ones.

[1] See Nicolas Guzman et al., Coronavirus’ Impact on Service Organizations: Weathering the Storm, McKinsey & Co. (Apr. 29, 2020),; U.N. World Tourism Org., International Tourism and COVID-19 (Sept. 15, 2020),; Press Release, World Trade Org., Trade Shows Signs of Rebound from COVID-19, Recovery Still Uncertain, Press/862 Press Release (Oct. 6, 2020),

[2] See Natalie B. Compton, Coronavirus Cases Set Records in Europe This Week.  What Does That Mean for the Return of U.S. Travelers?, Wash. Post (Oct. 15, 2020),; see also ‘It is terrifying’: Europe Braces for Lengthy Battle with COVID, Reuters (Oct 26, 2020), (“Europe’s daily infections have more than doubled in the past 10 days, reaching a total of 7.8 million cases and about 247,000 deaths, as a second wave right before winter has crushed economic revival hopes.”); Holly Yan & Madeline Holcombe, The US had More Daily Covid-19 Cases in the Past Week than Ever Before. And No, it’s Not Just Due to More Testing, CNN (Oct. 26, 2020), (reporting that the seven-day average of daily new cases reached an all-time high of 68,767 on Sunday, October 25, with the previous record of 67,293 being set on July 22).

[3] See Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, U.S. Dep’t of State (June 17, 2020),

[4] See Natacha Larnaud, “A Part of Me Is Missing”: COVID-19 Travel Bans Continue to Separate Families and Couples, CBS News (Oct. 8, 2020, 6:42 PM),

[5] See Love is Not Tourism, (last visited Oct. 27, 2020); see also Love is Essential, (last visited Oct. 27, 2020) (advocating for the reunion of non-E.U.-citizens in an “international” partnership).

[6] Love is Not Tourism, supra note 5.

[7] Id.

[8] See Alice Tidey, ‘Love Is Not Tourism’: EU Bids to Reunite Couples Split by Coronavirus Restrictions, Euronews (Aug. 7, 2020),

[9] Czech Republic Rearranges Entry Procedures for Unmarried Partners of Czech & EU Citizens, SchengenVisaInfo (Sept. 21, 2020),

[10] Travelers Prohibited from Entry to the United States, CDC (Sept. 14, 2020),

[11] See Larnaud, supra note 4.

[12] U.N. World Tourism Org., COVID-19 Related Travel Restrictions: A Global Review for Tourism 12 (2020),

[13] Id. at 24; see also Sophia Harris, Canada-U.S. Border Closure Extended but Trump, Trudeau Far Apart on Next Steps, CBC (Oct. 18, 2020, 4:00 AM), (due to persistently high infection rates, the border between Canada and the U.S. will remain closed for an indeterminate amount of time); Hungary Amends Travel Restrictions for V4 Countries, SchengenVisaInfo (Oct. 7, 2020), (“On September 1, authorities in Hungary decided to reclose their borders for all international arrivals, becoming the first Schengen country to take such a decision, as part of efforts to stop the further spread of the deadly virus.”); Kat Lonsdorf, Europe Imposes New Restrictions as COVID-19 Cases Soar, NPR (Oct. 25, 2020), (surging COVID-19 cases across the E.U. has led to the reintroduction of significant domestic restrictions).

[14] See U.N. World Tourism Org., supra note 12, at 12.

[15] See Josh Dye, Is Australia’s Ban on International Travel Legal? Experts Weigh In, Traveler (Oct. 17, 2020),

[16] Love is Not Tourism, supra note 5.

[17] Borame L. Dickens et al., Strategies at Points of Entry to Reduce Importation Risk of COVID-19 Cases and Reopen Travel, J. Travel Med., Aug. 25, 2020, at 1–2,; see also Matteo Chinazzi et al., The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak, 368 Sci. Mag. 395, 400 (2020), (“. . . although the Wuhan travel ban was initially effective at reducing international case importations, the number of imported cases outside mainland China will continue to grow after 2 to 3 weeks. . . . additional travel limitations (up to 90% of traffic) have only a modest effect unless paired with public health interventions and behavioral changes.”); Ana L.P. Mateus et al., Effectiveness of Travel Restrictions in the Rapid Containment of Human Influenza: A Systematic Review, 92 Bulletin World Health Org. 868, 873 (2014), (“Only extensive travel restrictions – i.e. over 90% – had any meaningful effect on reducing the magnitude of epidemics.  In isolation, travel restrictions might delay the spread and peak of pandemics by a few weeks or months but we found no evidence that they would contain influenza within a defined geographical area.”).

[18] Dickens et al., supra note 17, at 5.

[19] See Coronavirus – Information of MoI, Ministry of the Interior of the Czech Republic, (last visited Oct. 27, 2020).

[20] See Tidey, supra note 8 (as of July 2020, there was an estimated 398,286 European flights for tourism with no quarantine or negative test requirement, compared to 9,000 E.U. citizens waiting to be reunited with partners, family, and children that are not exempt from E.U. travel ban).  See generally COVID-19 Impact on the European Air Traffic Network, EUROCONTROL (2020), (publishing regular air traffic scenarios and comprehensive assessments of latest air traffic situations in Europe).

[21] See, e.g., Sebastian Powell, Immigration Canada has Updated their Entry Requirements, Allowing More Foreigners to Enter and Reunite with Family Members, LoyaltyLobby (Oct. 9, 2020), (requirements for entry involve a notarized affidavit describing at least a one year relationship with a Canadian permanent resident or citizen with whom you have spent physical time together, a declaration signed by said citizen or permanent resident, a demonstration of an intent to enter for a period of at least fifteen days, and an assessment of the relationship by Canada’s immigration service); About the Corona Situation: Citizens of Countries Outside the EU/EEA: Residing in Countries Outside the EU/EEA, The Norwegian Directorate of Immigr., (last visited Oct. 27, 2020) (restricting entry to a girlfriend or boyfriend that you have been with at least nine months and whom you have met physically at least once with a relationship you can document and a place to live to carry out the quarantine).

[22] See Lonsdorf, supra note 13;Yan & Holcombe, supra note 2.  See generally Covid in the U.S.: Latest Map and Case Count, N.Y. Times, (last visited Oct. 27, 2020) (tracking COVID-19 cases in the U.S.); COVID-19 Situation Update for the EU/EEA and the UK, Eur. Ctr. for Disease Prevention & Control, (last visited Oct. 27, 2020) (tracking COVID-19 cases in the E.U., European Economic Area, and the United Kingdom).

[23] Larnaud, supra note 4 (internal quotation marks omitted). In response to suspended routine visa service in the U.S.: “I look at my engagement ring every day and I don’t know when I’ll hold my fiancé again. . . . [n]ot being able to see the finish line is the hardest, most painful part.  We’re feeling hopeless.  Our whole lives have been put on hold.”  Id.  In response to Peru’s border closure: “It’s been seven months since I’ve been able to hug my daughter.  I never dreamed of one day having to be without her for so long.”  Id.  In response to U.S. restrictions targeting non-Green Card visa holders: “Foreign nationals work, pay taxes, contribute to the economy.  We’re not citizens, but we’re not tourists either, and yet, we suffer the same restrictions as tourists.  Our whole life is here, so we should have a right to come back home.  It’s like we’re being taken hostage.”  Id.

[24] Love is Not Tourism, supra note 5; see also Love is Essential, supra note 5.