Ten Republican senators opened a new front last week with introduction of the Creating Obstructions Necessary to Address Illegal and Nefarious Entry Rapidly (CONTAINER) Act.
In theory, that bill draws on the Constitution’s provided right for states to defend themselves. It is untested legal waters, though, as it would expand that right to include allowing border states to place temporary barriers on federal land, so long as they claim it is to protect their communities. In this case, the senators mean it as a way to bar entry to immigrants, as Congress and the White House continue to battle over border security.
“If governors and states are willing to step up where President Biden has failed, Congress needs to empower them,” U.S. Sen. Bill Cassidy, M.D. (R-LA) said. “Border states should be able to place physical barriers at their border with Mexico without waiting for a dilly-dallying administration to finally get around to maybe giving an answer, and the answer is always no.”
Current federal law requires states to gain authorization from the federal government before placing any structures on federal land. The CONTAINER Act would carve out an exception for movable, temporary structures in border states, defining temporary as up to a year. Further, it added that the Secretaries of Agriculture and the Interior could approve 90-day extensions of that right.
“Since President Biden took office, there have been over 8.5 million apprehensions at our southern border, turning every state into a border state,” U.S. Sen. Marsha Blackburn (R-TN) said. “Meanwhile, his administration has only exacerbated the problem by trying to stop the use of measures that will secure our border like shipping containers and razor wire. Because Joe Biden refuses to do so, it’s clear Congress must act to give border states the explicit authority to protect their communities and the sovereignty of the United States.”
Texas and Arizona in particular have battled with the Biden administration over border measures. In 2022, the states began placing large shipping containers along parts of the southern border to fill gaps in border walls. Arizona removed those containers under threat of lawsuit, but Texas has kept them in place, and added razor wire on federal land. The administration subsequently asked the Supreme Court to allow Border Patrol to cut that razor wire, but last week, Texas responded by sending the National Guard to seize control of Shelby Park in Eagle Pass, after which it barred entry to U.S. Border Patrol agents.
The U.S. government argues such efforts fly in the face of constitutional mandates granting it authority over border enforcement.
On this bill, though, Blackburn and Cassidy were joined by U.S. Sens. J.D. Vance (R-OH), Cindy Hyde Smith (R-MS), Pete Ricketts (R-NE), Ted Budd (R-NC), Kevin Cramer (R-ND), Mike Braun (R-IN), Tim Scott (R-SC), and Ted Cruz (R-TX).