A dispute between the Biden administration and the state of Texas over a concertina wire barrier along 29 miles of the Rio Grande near Eagle Pass, Texas, now appears to be headed to the Supreme Court. On Tuesday, the solicitor general (SG) — DOJ’s top litigator — filed an application with the Court to vacate an injunction preventing CBP from cutting that wire to facilitate the illegal entry of aliens, which was issued by the Fifth Circuit on December 19. Just when this spat seems like it can’t get any sillier, it does, simply underscoring how ridiculous the Southwest border has become.
Did I mention that the SG’s application is 42 pages long, not counting 54 pages of attachments?
“Operation Lone Star”. This spat has its genesis in “Operation Lone Star”, a Texas state initiative launched in March 2021 by Gov. Greg Abbott (R) to support Border Patrol agents who were being overwhelmed by a increasing surge in migrants that began after President Biden's inauguration. As Abbott explained at the time:
The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration. ... Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.
Abbott’s contentions were either ignored or dismissed by most in the media, but he was quickly attacked by immigrant advocates over the operation.
Lone Star is primarily staffed by state troopers from the Texas Department of Public Safety (DPS) and National Guard troops from the Texas Military Department (TMD). The troops monitor movements along the border and report to CBP and to the troopers, and the troopers pursue smugglers and illegal migrants that Border Patrol is unable to catch.
Once they apprehend smugglers, migrants, and drugs, the troopers call Border Patrol to round up those encountered. Agents sometimes respond quickly, but other times they are too overwhelmed processing (and usually releasing) illegal entrants to show up in a timely manner.
DPS also, as appropriate, charges migrants with violations of state crimes, such as trespassing on private land and drug trafficking and/or possession. Texas recently passed its own laws broadening that authority by making illegal entry into the state across an international boundary a crime, but that law is not set to take effect until March (and Biden’s DOJ is also threatening to have it enjoined).
Operation Lone Star expanded in the lead-up to the termination of Title 42 on May 11. A massive rush of migrants was expected once that public-health order (which directed the expulsion of illegal entrants to mitigate the spread of Covid-19) ended, and DPS and TMD wanted to be prepared.
To discourage migrants from crossing the Southwest border at the Rio Grande illegally post-Title 42, DPS and TMD began erecting concertina wire (known as “c-wire”) fences along the banks of the river. As the Fifth Circuit noted in its most recent order:
The c-wire serves as a “deterrent — an effective one at that,” causing illegal crossings to drop precipitously. “By all accounts, Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties (Texas and CBP) work cooperatively across the state, including in El Paso and the Rio Grande Valley.”Eagle Pass and Maverick County: “The Epicenter of the Present Migrant Influx”. For reasons that remain unclear, however, the Biden administration has taken a dimmer view of the c-wire barrier the state of Texas has erected in Maverick County, Texas, generally, and near Eagle Pass in particular, areas the Fifth Circuit described as “the epicenter of the present migrant influx” because “nearly a quarter of migrant entries into the United States happen there”.
Texas has erected 29 miles of c-wire barrier along the Rio Grande in that area, and that stretch of barrier has been the focus of litigation since the fall. In late October, the state filed a complaint in the U.S. District Court for the Western District of Texas, in which it contended:
Since September 20, 2023, federal agents have developed and implemented a policy, pattern, or practice of destroying Texas’s concertina wire to encourage and assist thousands of aliens to illegally cross the Rio Grande and enter Texas. Federal agents not only cut Texas’s concertina wire, but also attach ropes or cables from the back of pickup trucks to ease aliens’ ability to illegally climb up the riverbank into Texas. And they regularly cut new openings in the wire fence, sometimes immediately after Texas officers have placed new wire to plug up gaps in fencing barriers.
Everybody involved in this case agrees it’s appropriate to cut that wire in emergencies, such as to save drowning migrants and rescue migrants in distress. Texas has consistently claimed, however, that the c-wire is being destroyed by CBP in non-exigent circumstances.
Texas v. DHS. That case is captioned Texas v. DHS, and things have been moving quickly. On October 30, U.S. district court Judge Alia Moses issued a temporary restraining order preventing the Biden administration from “removing” or “disassembling, degrading, tampering with, or transforming” the c-wire fence.
A month later, on November 29, however, Judge Moses denied the state’s request for a preliminary injunction, freeing the Biden administration to wreck the barriers. That sent the state to the Fifth Circuit for relief, and on December 4, the circuit court granted a temporary administrative stay — basically freezing the case for its further consideration.
The circuit court added more permanence to its actions two weeks later, when it issued a published decision granting the state an injunction pending appeal. As I explained at the time: “That order is based on one of the oldest of common law legal principles — tort law — simply underscoring how ridiculous this whole incident has become.”
Specifically, the Fifth Circuit held that the federal government had waived sovereign immunity — the principle that the “sovereign” (in this case the federal government) cannot be sued on the same basis as any other defendant unless it has expressly waived that protection.
The circuit panel found that the federal government had in fact waived its claim to immunity in section 702 of the Administrative Procedure Act (APA).
As the Congressional Research Service has explained, the APA “applies to all executive branch and independent agencies, [and] prescribes procedures for agency rulemakings and adjudications, as well as standards for judicial review of final agency actions”. Section 702, in turn, states, in pertinent part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States. [Emphasis added.]
Texas isn’t looking for money; it simply wants CBP to leave its c-wire barrier in Maverick County alone.
“If Accepted, the Court’s Rationale Would Leave the United States at the Mercy of States”. Which brings me to the application the SG filed on January 2, with Justice Samuel Alito as the circuit court justice for the Fifth Circuit. In a key passage, she contends:
The court of appeals’ contrary ruling inverts the Supremacy Clause by requiring federal law to yield to Texas law. If accepted, the court’s rationale would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.
There are likely any number of objective observers who wouldn’t mind leaving the Biden administration’s border policies “at the mercy of” the states, but the SG — craftily — offered California’s attempt to bar private immigration detention facilities in the Golden State as an example.
Of course, she failed to add that the White House reportedly plans to close one of those facilities — the massive, 1,940-bed Adelanto (Calif.) ICE Processing Center — on its own volition. That is her prerogative, however.
DOJ also warns: “The court of appeals’ injunction not only is legally erroneous, but also has serious on-the-ground consequences that warrant this Court’s intervention.” What are those “serious, on-the-ground consequences”? The SG explains:
Like other law-enforcement officers, Border Patrol agents operating under difficult circumstances at the border must make context-dependent, sometimes split-second decisions about how to enforce federal immigration laws while maintaining public safety. But the injunction prohibits agents from passing through or moving physical obstacles erected by the State that prevent access to the very border they are charged with patrolling and the individuals they are charged with apprehending and inspecting. And it removes a key form of officer discretion to prevent the development of deadly situations, including by mitigating the serious risks of drowning and death from hypothermia or heat exposure.
As noted, however, no one involved in this case — and certainly not the state of Texas — denies that it’s okay for CBP to cut the wire to save migrants’ lives.
But as for the rest of that passage, and much of the rest that’s included in the SG’s application, Texas never would have had to implement Lone Star, and would never have put the c-wire barrier in place, if there were any serious “enforce[ment of the] federal immigration laws” taking place.
The nine justices of the Supreme Court don’t live in a bubble, and likely understand what’s going on at the border. They have, however, largely opted not to intermeddle in enforcement matters, preferring to punt state claims that the president is refusing to comply with the immigration laws to the “political branches”, i.e., the Congress and the White House.
This case, however, is in a slightly different posture, because here the federal government is attempting to do its own intermeddling with the state’s property. To the best of my knowledge, no prior president in history has attempted to block state border enforcement efforts, but then no state ever had to take such actions — in the face of executive-branch inaction — before, either.
What, if anything, will the Supreme Court do? There is no way to tell, and both sides have their points. The fact, however, that DOJ’s top courtroom lawyer is asking the High Court to decide whether 29 miles of Texas’s concertina wire along the Rio Grande in Maverick County, Texas, stays or goes simply underscores how ridiculous the Southwest border has become under Joe Biden.