Texas Secures Circuit Stay in Border Barrier Case After District Judge Savages Biden’s Border Policy

‘The immigration system . . . dysfunctional and flawed as it is, would work if properly implemented’

By Andrew R. Arthur on December 9, 2023

In late October, I reported that U.S. federal district court Judge Alia Moses had issued a temporary restraining order (TRO) barring the administration from cutting a concertina wire fence erected by the state of Texas along the Rio Grande near the town of Eagle Pass. In a later scathing November 29 order, however, Judge Moses denied the state’s request for a preliminary injunction, freeing the Biden administration to wreck the barriers to facilitate aliens’ illicit entries into the country. “Scathing”, that is, with respect to the administration’s actions at the border, not the state’s. To add insult to injury, the Fifth Circuit then turned around and shut the Biden administration’s destructive activity down, again. 

The Concertina Wire, Not the River Buoys, Case

The case is captioned Texas v. DHS, and should not be confused with U.S. v. Abbott, a challenge by the Biden administration to force Texas Gov. Greg Abbott (R) to remove buoys the state had placed in the Rio Grande—again near Eagle Pass—to prevent migrants and smugglers from crossing the river on their way into this country. This one involves wire barriers on the shores of the river. 

To recap Abbott, however, Senior Judge David Ezra, sitting by appointment on the U.S. District Court for the Western District of Texas, issued a preliminary injunction, ordering the governor to remove those buoys in early September. 

Judge Ezra sided with the federal government’s argument that the Rivers and Harbors Appropriation Act of 1899 required the state to obtain a permit from the U.S. Army Corps of Engineers before placing the riverine barriers, which it failed to do. He also rejected Texas’ claim that the buoys were necessary in the interest of self-defense, to protect the state from an “invasion”.

A few days later, the Fifth Circuit granted the state’s motion for an administrative stay of Judge Ezra’s order in a brief (bordering on terse) unpublished order of its own.

‘Blatant and Disturbing Efforts to Subvert Law and Order’

Back to Texas v. DHS. As my colleague Todd Bensman and I each reported in early May, the state had begun installing concertina wire barriers along the banks of the Rio Grande in anticipation of a massive migrant surge post-Title 42 as part of the governor’s border-security program, “Operation Lone Star”. 

Those concertina wire barriers were put in place to prevent smugglers and illegal entrants from crossing into populated areas where they could disappear before arrest, and to prevent migrants from attempting to cross the unpredictable river.

As Judge Moses explained in her most recent order: “By all accounts, Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties work cooperatively across the state, including in El Paso and the Rio Grande Valley.” 

She continued, however: “The Eagle Pass area, though, is another matter.” In its October 24 complaint in the case, Texas 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.

“On each of these occasions,” the complaint alleged, “CBP has entered onto state, municipal, or private land to destroy state property”, as Texas had “not placed concertina wire on any federal land near Eagle Pass.” Accordingly, the state argued, it was bringing suit “to end this ongoing, unlawful practice which undermines its border security efforts”.

Texas offered six different legal arguments for why these federal efforts should be stopped, two of which (“conversion” and “trespass to chattels”) were premised on common-law torts. 

As noted, Judge Moses denied the state’s motion for a preliminary injunction on November 29. In a press release issued following that decision, Texas Attorney General Ken Paxton complained: 

I am disappointed that the federal government’s blatant and disturbing efforts to subvert law and order at our State’s border with Mexico will be allowed to continue . . . Biden’s doctrine of open borders at any cost threatens the safety of our citizens, and we will continue to fight it every step of the way.

The ‘Utter Failure’ of the Administration to ‘Halt Unlawful Entry into the United States’

I won’t belabor the legal bases for the judge’s decision. She found the state’s tort claims were barred under the principle of “sovereign immunity”, pursuant to which that the “sovereign”—in this case the United States—must consent to any suit against it. The state could conceivably receive monetary recompense for the damage to its fencing, but Texas isn’t seeking money—it wants its fencing left alone.

One statute under which the federal government has waived sovereign immunity is the Administrative Procedure Act (APA), which governs executive-branch rulemaking and agency actions. 

In that regard, Texas alleged that “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” the state since September 20, and that this was a “final agency action” challengeable under the APA. 

The court rejected that claim at this stage but did not find that the state could not ultimately prove its point. DOJ admitted that there could be millions of pages of documents in its possession that reference Texas’s concertina wire, but because the case has moved quickly, discovery to this point has been limited.

The state also alleged that CBP had “no colorable basis” for its action, and therefore that action was ultra vires, in that it exceeded the agency’s legal authority. Again, Judge Moses concluded that based on the scant record before her, the state had not proven this point sufficiently to justify entry of a preliminary injunction to stop destruction of the state’s concertina wire, but left that door open, too. 

With that out of the way, don’t think Judge Moses was either sympatico to the federal government’s position or happy with (let alone blessing) its actions. This might be the most scathing win the Biden administration will ever receive.

Before she even began her legal analysis of the case, Judge Moses 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.]

‘Culpable and Duplicitous Conduct’

“Culpable and duplicitous conduct?” DHS argued that it had to cut the wire to (1) apprehend, inspect, and detain aliens who have entered illegally and (2) respond to medical emergencies. 

Law and regulations have long allowed Border Patrol agents to disturb enclosures and enter private property near the border to locate illegal aliens, but as the court found, agents already have access to both sides of the state’s fence (and at points, boats in the river, too). Evidence in the case showed that CBP was cutting new holes in Texas’ fence where there was already a hole cut 15 feet away. 

Plus, citing Supreme Court precedent from 2020, she noted that the aliens on the other side of the fence on the banks of the river have not “effected an entry” requiring agents to take them in for inspection under section 235 of the Immigration and Nationality Act (INA). As the judge noted, DHS: 

cannot justify cutting or moving the [state’s] fence whenever and wherever they find convenient based on a supposed need to access the river by both boat and foot so they may passively observe migrants crossing. Nor can they do so when the [DHS fails] to direct migrants attempting to unlawfully enter the United States to return back across the border per longstanding, Supreme Court-sanctioned practice.

And evidence in the case revealed that once aliens were allowed through the fence, CBP directed them to a “further-inland processing center” about a mile away “with vanishingly little if any further supervision or direction” -- a route bordered by a separate state fence. 

Even then, Texas offered evidence showing that more than 40 percent of the aliens who crossed didn’t actually present themselves for processing thereafter. The court noted: 

No unfair cynicism is required to suspect that some such migrants likely commit other crimes (e.g., drug smuggling, human trafficking, etc.) during this process, providing ample incentive for the individuals posing the greatest public danger to flee rather than deliver themselves to [DHS]. [Emphasis added.]

With respect to medical emergencies, both of the parties and the court recognized that such exigencies were legitimate reasons for cutting the fence. 

The court found, however, that “evidence suggests that these exceptional circumstances can be used to swallow a rule against wire-cutting”. There’s a difference, the judge noted, between cutting the fence to save a migrant and leaving it “open for a crowd of dozens or hundreds to pass through”. Further, CBP could use its boats to save migrants in distress in the river instead of cutting the fence to retrieve them. 

Still, all that notwithstanding, Judge Moses found her hands tied legally at this stage in the proceedings and denied the state’s request for a preliminary injunction. 

Texas’s ‘Opposed Motion for a Temporary Administrative Stay Is GRANTED’

Paxton quickly filed an appeal of Judge Moses’ order with the Fifth Circuit, and four days later the circuit court issued an order of its own, stating: “IT IS ORDERED that Appellant’s opposed motion for a temporary administrative stay is GRANTED”. The three-judge panel gave the federal government until close of business on December 8 to file a response to Texas’ request for an injunction pending appeal. 

If the Biden administration were smart, it would just stop cutting Texas’ concertina wire fence in Eagle Pass. CBP apparently has no issue with similar fences elsewhere along the Rio Grande, and even if it “wins” in the end, the facts here paint its migrant-release policies in the worst light. Of course, if the administration were smart, it never would have adopted those policies to begin with.