WASHINGTON, D.C. – A divided Supreme Court has issued an injunction allowing Biden administration officials to open border barriers in Texas, continuing a conflict between the Biden administration's open border policies and Texas' attempts to secure the border. It blocked an appeals court ruling in favor of Texas in the dispute. Republican-appointed judges joined Democrats on Monday in a 5-4 vote on the moratorium as litigation continues in lower courts.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued the injunction in Texas' favor on December 19. Justice Kyle Duncan explained the issue in a letter to the court:
Border Patrol encounters with immigrants who entered the country illegally rose from a relatively low 458,000 in 2020 to 1.7 million in 2021 and 2.4 million in 2022. Naturally, this situation is being exploited by drug cartels, who run an incredibly lucrative business. Preventing human trafficking and illegal drugs like fentanyl, which are frequently encountered in large quantities at our borders.
The Panel's decision continued as follows:
In 2021, Texas launched Operation Lone Star to support the Border Patrol through the allocation of state resources. The activity at issue here is that Texas is installing bellows wire along some sections of the riverbank. C-wires act as a deterrent and are effective in sharply reducing illegal crossings. By all accounts, the Border Patrol appreciates the support of Texas law enforcement, and evidence shows Border Patrol is working together across the state, including in El Paso and the Rio Grande Valley.
As the court explained, Texas had made great progress, but there was one problem.
By September 2023, Texas has installed more than 49 miles of C-wire. [the Eagle Pass] area. Both the Border Patrol and the state of Texas agree that C-wires must be cut in the event of an emergency, such as a migrant drowning or fear of heat stroke. Problems arise when Border Patrol agents cut power lines for non-emergency reasons without prior notification to Texas.
Exclusive: Migrants force young children under razor wire in Texas as thousands cross border
Texas filed suit to stop federal agents from cutting the border, alleging both a tort known as “trespassing on personal property” and a violation of the Administrative Procedures Act (APA). The U.S. Department of Justice (DOJ), led by Attorney General Merrick Garland, moved to dismiss the case. As Mr. Duncan pointed out, “The federal government and its agencies are immune from lawsuits, even states, unless Congress explicitly consents by waiving sovereign immunity.”
However, the New Orleans-based Court of Appeals reasoned that, based on the relevant provisions of the APA, “the express provisions of section 702 waive sovereign immunity to actions seeking non-monetary relief in federal court.” The Justice Department's request for immunity was rejected.
The Fifth Circuit also rejected other arguments by the Department of Justice, beginning with the idea that Texas tort claims can only be brought against the federal government under the Federal Tort Claims Act (FTCA). The committee also rejected the Justice Department's argument for intergovernmental immunity, saying Texas did not intend to directly regulate border control or treat the federal government any worse than other political parties. The court also found that because the Department of Justice asserted that the Department of Homeland Security (DHS) had asserted authority to do so under 8 U.S.C. denied jurisdictional immunity. Neither is subject to that exemption.
The appellate court also affirmed many of the trial court's reasoning in favor of Texas, including:
The district court found that the Border Patrol exceeded its authority by cutting Texas' C-wire fence for purposes other than medical emergencies, inspections, and detention. Moreover, the public interest favors explicit protection of property rights from government intrusion and control.
U.S. Attorney General Elizabeth Preloger, Biden's top Supreme Court lawyer, said: applied The court seeks to block the injunction, which has the effect of temporarily freezing the lower court's judgment while the appeal continues. To the surprise of many, the court upheld it by a 5-4 vote.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted against the stay. That means Chief Justice John Roberts and Justice Amy Coney Barrett joined with three liberal justices in issuing the stay order.
Exclusive: Migrant breaks through razor wire at border, Texas National Guard trooper, DPS disappears
This is worrying for those trying to deal with the border crisis. This is because two of the factors the Supreme Court holds on to are that the court is likely to grant review of the appellate court's decision and that there is a reasonable prospect that the justices will overturn it. lower court. It would not be at all surprising that the judge would at least hear the appeal requested by Preloger. But another factor, the likelihood of ultimate success, is that both Roberts and Barrett believe there is a reasonable prospect that they will agree with at least one of DHS' arguments that the 5th Circuit rejected. It means there is.
While this is not a final decision on the merits, it is not an encouraging sign for those trying to secure the border and raises the prospect of a likely rematch between President Joe Biden and former President Donald Trump in the White House. will rise again.
The application is Department of Homeland Security vs. State of TexasU.S. Supreme Court No. 23A607.
Breitbart News senior legal contributor Ken Kurkowski is a lawyer who has worked in the White House and the Department of Justice. Follow him on X (formerly Twitter) @kenklukowski.
