A panel of three judges on the Fifth U.S. Circuit Court of Appeals ruled in favor of Texas in a lawsuit over its concertina wire barriers.
In a case that could potentially influence two other cases pertaining to Texas’ border security operations, the court delivered a 2-1 ruling.
Circuit Judge Stuart Kyle Duncan and Judge Don Willett wrote the majority opinion. They said that Texas had not shown that it waived its sovereign immunity or had a strong chance of winning on the facts. However, Judge Irma Carrillo Ramirez dissented, asserting that Texas did not meet its burden in this regard.
The Biden administration faced legal action from Texas after it removed the concertina wire barriers it had installed on state land. Thirteen months later, Texas delivered the ruling on this matter.
The court had to decide whether Border Patrol agents had the legal authority to remove concertina wire fencing that Texas law enforcement had installed along its border with Mexico.
The Biden administration issued an order to Governor Greg Abbott, demanding that he remove the fencing, claiming that he was interfering with federal immigration operations. However, Abbott refused, arguing that the administration was enabling illegal entry and violating federal law.
As a response, the administration instructed Border Patrol agents to use a bulldozer to remove the wire fencing. In turn, Abbott filed a lawsuit, contending that they were destroying Texas property and that Texas has the legal authority to construct barriers on state land.
The district court denied Texas’ request for an injunction to block Border Patrol agents from removing the fencing, even though it agreed with Texas’ arguments.
In its lengthy 75-page decision, the Fifth Circuit upheld Texas’s position by recognizing the facts: the wire did not hinder the Border Patrol, as its agents had repeatedly broken through it for no apparent reason other than to make it easier for migrants to enter further inland. Despite this agreement on the facts, the court ultimately denied Texas’ request, citing the federal government’s claim of sovereign immunity.
The state of Texas then took its case to the Fifth Circuit, which granted the injunction pending appeal. In response, the Biden administration appealed to the U.S. Supreme Court, which decided to vacate the injunction without providing any specific reasons for its decision.
Texas remained undeterred by the Supreme Court’s ruling. The state proceeded with its plans to build and install concertina wire in the Eagle Pass area. Additionally, Texas established a military base for its border security mission, Operation Lone Star, in the same location. Officers involved in OLS also extended the concertina wire barriers to other crucial areas along the state’s border.
“The Texas National Guard remains steadfast in their commitment to safeguarding Eagle Pass,” Abbott declared. “Texas will persist in our mission to fortify the border, even in the absence of Biden’s support.”
The three-judge panel has granted Texas a preliminary injunction, stating that the Biden administration has waived sovereign immunity concerning Texas’s state law claims under § 702 of the Administrative Procedure Act. The panel supports this decision with a multitude of unchallenged circuit precedents, to which the United States has no response.
The Fifth Circuit also dismissed other arguments put forth by the Biden administration. One such argument was that Texas was implementing barriers to protect its own property, rather than to regulate Border Patrol.
The ruling overturned the district court’s decision and granted Texas a preliminary injunction. Furthermore, the court explicitly prohibited the federal government from causing any harm, destruction, or interference with Texas’s c-wire fence near Eagle Pass. This includes Shelby Park, which Governor Abbott closed down upon discovering that the Biden administration was utilizing it to facilitate illegal entry into the United States.
Texas Governor Greg Abbott praised the recent ruling by the Fifth Circuit, emphasizing that it affirms Texas’ authority to construct a border wall using razor wire as a means to prevent unauthorized entry into the state. Abbott strongly disagreed with President Biden’s decision to remove the razor wire, highlighting the state’s ongoing efforts to enhance border security by consistently adding more of these barriers.
Attorney General Ken Paxton described the ruling as a significant victory for Texas.
We have prohibited the Biden Administration from causing harm, demolishing, or interfering with the border fencing in Texas. We took immediate legal action when we witnessed the federal government demolishing the fences to allow illegal aliens to enter. Throughout this process, we have consistently fought for the sovereignty and security of Texas.”
With only a few weeks remaining in the current administration, it is highly unlikely that the case involving the concertina wire barrier will be appealed for a full court review.
Unless the incoming Trump administration decides to drop the case, the court will hear arguments in May about a lawsuit concerning Texas’ marine barriers in the Rio Grande River. Additionally, there is another case before the court regarding Texas’ border security law, SB 4.