5th Circuit hands Texas a win in latest round of concertina wire lawsuit



(The Center Square) – The 5th Circuit Court of Appeals handed Texas a win on Tuesday night in a lawsuit it filed against the Biden administration for destroying its concertina wire barriers on state property along the Rio Grande River.

A panel of three judges granted Texas’ request for an injunction pending appeal. It also enjoined the federal government during the appeal process from “damaging, destroying, or otherwise interfering with Texas’ c-wire fence in the vicinity of Eagle Pass, Texas, as indicated in Texas’ complaint.” The order also notes that both parties have agreed that the wire may be cut “if necessary to address any medical emergency.”

In response, Gov. Greg Abbott said, “The Fifth Circuit ordered the Biden administration to stop cutting Texas’ razor wire pending our appeal of its initial ruling. AG Paxton and I will hold [President Joe] Biden and [DHS Secretary Alejandro] Mayorkas accountable for attacking Texas’ sovereign authority and their attempts to obstruct our border security efforts.”

The ruling came after the Fifth Circuit stayed its previous ruling two weeks ago and issued an administrative stay preventing the federal government from cutting the wire.

The case stems from a lawsuit filed October 24 by Texas and the Texas Public Policy Foundation against the Biden administration after Border Patrol agents began bulldozing concertina wire barriers on Texas soil to allow foreign nationals to illegally enter Texas between ports of entry. The district judge in the border town of Del Rio, Texas, initially granted Texas’ request and issued a temporary restraining order, blocking the federal government from destroying Texas’ concertina barriers.

The judge then reversed course, after a recent hearing, and lifted the TRO. Texas appealed to the Fifth Circuit, and two of three judges on a panel affirmed the lower court’s ruling. Texas then appealed to the full court to hear its case, and the Fifth Circuit granted Texas’ request for a TRO.

On Monday, the court, in its 19-page order, disagreed with arguments the federal government made: the only remedy states can take regarding the destruction of property is through the Federal Tort Claims Act, the federal government has intergovernmental immunity, and jurisdictional immunity under the Immigration and Nationality Act.

Judge Stuart Kyle Duncan repeatedly wrote for the panel, “we disagree,” and “they are again mistaken” about their interpretation of the law.

Duncan also said Texas has a likelihood of success in its lawsuit, Texas has shown it would be irreparably injured absent a stay, and the TRO serves the public interest. Citing a previous Fifth Circuit Court ruling, he wrote, “There is generally no public interest in the perpetuation of unlawful agency action,” and there is “substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.”

The court also held that the “public interest supports clear protections for property rights from government intrusion and control.”

Attorney General Ken Paxton said he was “very pleased the appellate court has forbidden federal agents sent by the Biden administration from destroying our concertina wire fences. Given the ongoing disaster at the southern border due to the federal government’s intentional actions, more than ever, it is necessary to take every step we can to hold the line. I will continue to fight against the Biden administration’s radical policies and work to make Texas a safer, more secure place to live.”

The Biden administration is continuing with its appeal and opposition to Texas’ border security efforts.

This is one of three recent lawsuits related to Texas border barriers installed as part of Abbott’s border security mission, Operation Lone Star, in the Eagle Pass region of Texas. This, and a lawsuit over Texas’ marine barriers in the Rio Grand River, are before the Fifth Circuit Court of Appeals in New Orleans.

Gov. Abbott has maintained in defense of all of Texas’ lawsuits that “We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders.”

His efforts continue as Texas has seen a record more than 1.9 million illegal border crossers since January 2021 through fiscal 2023, the greatest number of any state and the largest number reported in Texas history.

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