Fifth Circuit stays its own ruling on Texas concertina wire barrier lawsuit



In what has been back-and-forth rulings among the courts, the Fifth Circuit Court of Appeals on Monday overturned its previous ruling, issuing an administrative stay in a case filed by Texas over the federal government tearing down concertina wire border fencing.

In October, Texas and the Texas Public Policy Foundation sued 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.

In Monday’s ruling, the court granted Texas’ request for a TRO. It also set a deadline for a response to the motion by 5 p.m. Friday, Dec. 8.

The TRO prohibits the federal government from damaging Texas’ concertina wire fencing as the U.S. Department of Justice prepares a response to Texas’s motion for an injunction pending appeal of the district court’s order.

Gov. Greg Abbott has argued that Texas has a right to defend its sovereign border and will take the issue all the way to the U.S. Supreme Court.

This is one of three recent lawsuits related to Texas border barriers installed as part of Abbott’s border security mission, Operation Lone Star. Two are before the Fifth Circuit Court of Appeals in New Orleans.

Another lawsuit before the Fifth Circuit was filed by the federal government against Texas after Abbott installed marine barriers in the Rio Grande River south of Eagle Pass in response to an ongoing surge of illegal border crossers in the area. A district court first ordered Texas to move the marine barriers closer to its shoreline, which The Center Square first reported.

Confusion about the case resulted from multiple news outlets misreporting that the court ordered Texas to remove the buoys altogether. Texas appealed the district court’s ruling, and the Fifth Circuit stayed the ruling until it heard the case, then reversed it on Friday.

The ruling put back in place the district court order, which issued a preliminary injunction requiring Texas to “cease work on the barrier and shift it to the Texas riverbank.”

Abbott said Friday night, “The 5th Cir. Court of Appeals’ denial of Texas’ sovereign authority to secure the border with floating marine barriers is clearly wrong.”

Texas then sought an immediate rehearing by the full court. “We’ll go to SCOTUS if needed to protect Texas from Biden’s open borders,” Abbott said.

In the meantime, Texas National Guard soldiers are continuing to install concertina wire on Texas soil along the Rio Grande River through OLS.

“Texas National Guard soldiers continue to install and reinforce razor wire barriers along the Texas-Mexico border,” Abbott said. “While [President Joe] Biden’s dereliction of duty at the border continues, Texas holds the line.”

Texas is also continuing to build its own border wall. “Texas is the first and ONLY state in America to build our own border wall. While Biden refuses to enforce federal immigration laws, Texas will use every tool and strategy to secure the border,” he said.

Texas is the first and ONLY state in America to build our own border wall.While Biden refuses to enforce federal immigration laws, Texas will use every tool and strategy to secure the border.— Greg Abbott (@GregAbbott_TX) December 4, 2023

As of last month, since Abbott launched Operation Lone Star, Texas law enforcement officers have apprehended nearly 500,000 illegal foreign nationals and made over 36,600 criminal arrests, with more than 33,200 felony charges reported. Texas law enforcement officers have also seized more than 435 million lethal doses of fentanyl, enough to kill more than the combined populations of Canada and the United States.

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