Summary. The Biden Regime’s ongoing human and national security catastrophe at our Nation’s border with Mexico led to extensive efforts by the State of Texas to stem the flow of illegals along various parts of the border through the use of “razor wire” or “concertina wire.” The current legal controversy arose when U.S. Border Patrol agents cut gaps in the razor wire to allow illegals to enter the Country unabated. Texas sued the Federal agencies involved seeking to stop the Biden Regime from removing or destroying the razor wire. The District Court denied the request from Texas for a preliminary injunction. Texas appealed to the U.S. Fifth Circuit Court of Appeals which reversed in part and granted an injunction in favor of Texas while the appeal was pending. The Federal Government applied to the Supreme Court of the United States which reversed the injunction.
Confusion and misinformation surround what happened. While Texas came up short in this initial round, the suit filed by Texas is not over. Let’s take a closer look at what happened and where the case stands.
The article. The Biden Regime refuses to enforce American immigration law or to enforce our Nation’s borders. Upon assuming office, President Biden acted to reverse numerous measures taken by the Trump Administration to stem the flow of illegals at our border with Mexico. Biden’s actions resulted in record numbers of illegal aliens unlawfully entering the United States in each year of his Administration. (The particulars of the border crisis created by the Biden Regime are outlined in a couple of chapters of my most recent book which is available here for anyone interested in more reading on the topic.) As of 2022, the number of migrants illegally entering the United States through our Southern border topped 2.4 million.
In response to the failure of the Federal Government to protect our Nation’s border with Mexico and in response to the massive surge in illegal aliens entering the Country due to the Biden Regime’s disastrous immigration policies, the State of Texas initiated a program called Operation Lone Star to activate and deploy Texas State assets to try to halt the flow of illegals crossing into Texas. Part of this initiative includes the use of concertina wire or “razor wire” in strategic locations along the Texas border with Mexico.
The State of Texas alleges in September 2023, Federal Customs and Border Protection agency (hereinafter the “Border Patrol”) began cutting gaps in the razor wire and even actually began helping illegals climb the riverbank to enter into Texas (particularly in the Eagle Pass, TX area). The efforts of the Border Patrol to dismantle the razor wire in the Eagle Pass area coincided with a massive increase in the number of illegals entering in the area. In this regard, the lawsuit filed by the State of Texas states:
While this unprecedented influx of illegals was ongoing, the Border Patrol ramped up its efforts to cut the razor wire. In fact, the lawsuit outlines dozens of different episodes where the Border Patrol cut the razor wire to admit illegals in the Eagle Pass area on September and October 2023.
Texas filed suit against the Federal Government and presented several claims in an effort to stop the Border Patrol from removing or damaging the razor wire. Texas made the following claims:
Claims for common law conversion (essentially the taking of the razor wire);
Claims for common law trespass to chattels (essentially interfering with the razor wire);
Three separate Administrative Procedure Act claims under 5 U.S.C. 706; and
A claim for ultra vires non-final agency action.
The State of Texas asked for a Temporary Restraining Order (a type of order which immediately, but temporarily, stops a party from doing something, in this case, tampering with razor wire) and for more permanent forms of injunctive relief called preliminary and permanent injunctions. A Preliminary Injunction generally bars a party from doing something through the date a trial is to be held, while a Permanent Injunction bars the party from doing something permanently. (An injunction may also compel a party to take action, as opposed to refrain from taking action.)
The Federal Judge presiding over the case granted the Temporary Restraining Order and extended that TRO a couple of times for a few weeks in the early stages of the case. But, on November 29, 2023, the Federal District Court denied the request for a preliminary injunction. The Court reached this conclusion despite literally castigating the Border Patrol for not doing its job (and for making bogus arguments defending its actions). This passage from the Court’s opinion is illustrative (the “Defendants” in the case are various U.S. Federal agencies and officers):
Why then, did the Court deny the requested relief? In short, the trial court found:
The applicable statute 5 U.S.C. §702 did not allow, in the judge’s view, for an injunction to be granted against the Federal agencies based on State law claims (here, the conversion and trespass to chattels claims). The basis for this is sovereign immunity. The Government, the “sovereign,” has immunity from suit and may only be sued for the reasons it allows itself to be sued by law. The trial judge felt the Federal Government did not agree to be sued on these State law claims;
The agency action involved was not “final agency action” which is required for granting an injunction against a Federal agency; and
The trial judge felt the State of Texas simply could not make the showing necessary to prove the “ultra vires” claim (which requires proving the agency has “no colorable basis” for its actions). The standard is very difficult to meet.
The State of Texas appealed the denial of the Preliminary Injunction to the United States Court of Appeals for the Fifth Circuit.
On December 19, 2023, the United States Fifth Circuit ruled in favor of the State of Texas and granted the injunction prohibiting the Border Patrol from tampering with the razor wire while the appeal was being considered. Specifically, the Fifth Circuit found 5 U.S.C. §702 does allow an injunction to be issued based on a State law claim, stating:
The Federal Government appealed to the United States Supreme Court asking it to lift the injunction (which would allow the Border Patrol to destroy more razor wire if it chooses). On January 22, 2024, SCOTUS granted the Federal Government the relief it requested and lifted the injunction with this Order:
That is it. We don’t know precisely why the Supreme Court vacated the injunction. Chances are, however, the High Court does not believe 5 U.S.C. §702 allows an injunction to be issued against the Federal Government on a state law claim, since that is the basis for the Fifth Circuit’s ruling. But, we simply do not know for certain.
Is this the End of the Case?
No, it is not. The lower courts still must grapple with the rest of the relief requested by the State of Texas. Furthermore, even if the State law claims are found to NOT afford a basis for an injunction stopping the Border Patrol from tampering with the razor wire, the Adminstrative Procedure Act claims could become “ripe” while the case progresses. Readers will recall this first APA claim requires “final agency action.” The trial court felt the State of Texas could not prove the decisions to cut the razor wire were the result of “final agency action,” however, if the Border Patrol continues to cut the razor wire while the case progresses, the courts could conclude the acts are “final agency action.” That would allow the injunctions to issue under the applicable Federal statute, 5 U.S.C. §702.
Did the Court order Texas to Stop Using Razor Wire?
No, that question was not even before any of the courts hearing this case thus far. Let me be emphatically clear: The State of Texas has not been ordered by any of the courts involved in this case to stop using razor wire at the border.
The Fake News Media reports to the contrary are simply misinformation. Here is a good illustration of that from an article ran by VOX on January 22, 2024:
This is simply not true. The SCOTUS order is reproduced in full above. That order merely vacated the injunction issued by the U.S. Fifth Circuit Court of Appeals which temporarily barred the Border Patrol from tampering with the razor wire. SCOTUS said, “The Border Patrol can tamper with the wire",” not that the State of Texas cannot put up more.
A Word about Chief Justice Roberts and Justice Coney Barrett
Many conservative commentators were understandably disappointed Chief Justice Roberts and Justice Coney Barrett sided with the Court’s three liberals and vacated the injunction. A good illustration of the thoughts of many conservative commentators is this piece by Cal Thomas in the Idaho State Journal. Let’s just say a lot of folks are not happy.
For my part, I was disappointed as well. But, this particular battle is not over. The record in the lower court will continue to develop and the State of Texas could very well wind up losing the battle and winning the war in this instance.
At any rate, I hope this article clears up some of the confusion about this case. As my readers will already know, reporting accurately about an issue like this is much more difficult than spreading Fake News. That probably has something to do with all of the misinformation.
(My new book Fake News Exposed: 25 of the Worst Media Lies about Conservatives, Guns, COVID and Everything Else is out at Amazon. You may also pick up a copy of one of my other books at Amazon as well.)