Fifth Circuit: Biden Administration Cannot Cut Texas Border Wire

The border barrier near Shelby Park, including c-wire. Photo by Mark Krikorian.

The U.S. Court of Appeals for the Fifth Circuit issued a decision last week in Texas v. U.S., ruling that DHS cannot cut concertina-wire (c-wire) barriers the State of Texas erected along the Rio Grande to prevent the illegal entry of migrants into the United States. It’s just the latest chapter of a long-running dispute between the Biden-Harris administration and Texas Gov. Greg Abbott (R) — though given the results of the 2024 presidential election, it’s bound to become a footnote in this sorry tale.

Operation Lone Star. In March 2021, Abbott launched “Operation Lone Star”, a state attempt to bolster CBP’s efforts in responding to the massive wave of migrants who poured across the river after Joe Biden took office and quickly reversed his predecessor’s controversial — but successful — border deterrence policies.

As the governor 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.

Under Lone Star, state troopers from the Texas Department of Public Safety (DPS) and National Guard troops from the state’s Military Department (TMD) were deployed to the border to monitor incursions and, in the case of the troopers, pursue and interdict human- and drug-smugglers and migrants.

Once they apprehended those smugglers, migrants, and drugs, troopers would call Border Patrol to pick everyone and everything up. Sometimes agents responded quickly, but other times Border Patrol was too overwhelmed processing illegal entrants to appear in a timely manner.

DPS also charges those smugglers and migrants with state-law violations, such as trespassing on private land and drug trafficking and/or possession, as appropriate. I note that last year, Texas passed a law broadening that authority by making illegal entry into the state across the international boundary a crime, but that law is still tied up in the courts.

The C-Wire Barrier and CBP’s Response in Maverick County. Texas expanded Lone Star in the lead-up to the termination of Title 42 in May 2023. To deter migrants who were expected to cross the border once those public-health orders expired, DPS and TMD began installing c-wire barriers on the Texas side of the river.

As the Fifth Circuit has explained: “The c-wire serves as a ‘deterrent — an effective one at that,’ causing illegal crossings to drop precipitously.”

Some 29 miles of that c-wire barrier were erected in Maverick County, Texas, and for reasons still unclear, CBP began cutting and tearing out portions of that c-wire fence starting in September 2023 to allow migrants to enter illegally and putatively go to a nearby CBP processing facility.

In response to that action, Texas filed a complaint in the U.S. District Court for the Western District of Texas, where it was assigned to Judge Alia Moses. That complaint asked the court to enjoin DHS “from seizing and destroying [its] concertina wire fencing and maintaining breaches in said fencing”.

“Political Rancor” and “Ego”. Judge Moses was sympathetic to Texas’s plight, but in late November 2023 she issued an Opinion and Order denying Texas’s request for a preliminary injunction. That may have been a victory for the administration, but her order was far from a glowing endorsement of its actions.

As she explained:

The U.S.-Mexico border presents a unique challenge that is equal parts puzzling to outsiders and frustrating to locals. The immigration system at the heart of it all, dysfunctional and flawed as it is, would work if properly implemented. Instead, the status quo is a harmful mixture of political rancor, ego, and economic and geopolitical realities that serves no one. So destructive is its nature that the nation cannot help but be transfixed by, but simultaneously unable to correct, the present condition. What follows here is but another chapter in this unfolding tragedy. The law may be on the side of the Defendants and compel a resolution in their favor today, but it does not excuse their culpable and duplicitous conduct. [Emphasis added.]

First Fifth-Circuit Go-Round and SCOTUS. Texas quickly filed an appeal with the Fifth Circuit, which on December 4, 2023, granted an administrative stay of Judge Moses’s order.

Fifteen days later, the circuit panel issued a published order, finding that the district court had erred on the question of sovereign immunity, and enjoining DHS from destroying the c-wire fence while it considered the state’s appeal from Judge Moses’s opinion and order.

Seemingly proving Judge Moses’s point about “a harmful mixture of political rancor [and] ego ... that serves no one”, on January 2, Elizabeth Prelogar — U.S. solicitor general and DOJ’s top courtroom lawyer — filed an application with the U.S. Supreme Court to vacate the circuit court’s injunction pending appeal.

She argued therein that under the Constitution’s supremacy clause, “state law cannot be applied to restrain ... federal agents from carrying out their federally authorized activities” and that the circuit court had turned that principle on its head “by requiring federal law to yield to Texas law”.

Texas filed its response a week later, noting that the Fifth Circuit had already agreed to hear its appeal in this case in early February, and arguing therefore that there was no “extraordinary” reason that would justify the Court intervening at this point.

The state then seized a municipal recreation area along the river called Shelby Park in Eagle Pass, Texas (in Maverick County), triggering a flurry of acrimonious filings back and forth between D.C. and Austin before the justices issued a brief order on Texas on January 22:

The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit ... is vacated.

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.

Fifth Circuit’s November 2024 Decision. That sent the case back to the Fifth Circuit, which as noted was already hearing the merits of Texas’s appeal from the denial of its request for a preliminary injunction.

It’s almost anti-climactic to explain that the circuit court reversed Judge Moses’s denial and enjoined any additional cutting of the c-wire barrier in Maverick County, finding that the federal government had waived any sovereign immunity claims that it might have had in the Administrative Procedures Act (APA), the main basis of the state’s argument.

That said, the circuit court did require Texas to provide CBP with “necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes” — including in Shelby Park.

Note that Texas had apparently been providing such access previously, and also that CBP apparently hasn’t destroyed any of the c-wire barrier in Maverick County of late, even after the Supreme Court had cleared it to do so.

It was a 2-to-1 decision from the three-judge panel, with Judge Irma Carrillo Ramirez (the newest judge on the court and a Biden appointee) dissenting from the majority opinion.

She concluded that the injunctive relief Texas is seeking “is ‘a forbidden one in this case’”, and for that reason would have left Judge Moses’s denial of the preliminary injunction undisturbed.

For his part, Abbott doubled-down on his c-wire efforts while taking a victory lap over the circuit court’s decision on X (formerly Twitter):

Perhaps the administration will seek further review from the Supreme Court but given that the Biden-Harris administration will end at noon on January 20, and that the incoming Trump administration — which has very different plans for the border than its predecessor — could simply withdraw any High Court filing, DOJ is likely to simply let the Fifth Circuit decision stand.

Even though Judge Moses was reversed, she was likely correct in concluding: “The immigration system ... dysfunctional and flawed as it is, would work if properly implemented.” Trump will soon put that to the test, but the law already could have been properly implemented if all the “political rancor” and “ego” hadn’t gotten in the way.