A U.S. District Court handed Texas a win in the first round of a case that consolidated two lawsuits filed against the Biden administration for halting border wall construction.
In 2020 and 2021, Congress allocated roughly $1.4 billion to fund “the construction of [a] barrier system along the southwest border.” On President Joe Biden’s first day in office, he ordered construction be halted. Because contracts had already been implemented, it cost taxpayers an initial $6 million, then $3 million a day for the border wall not to be built. Materials that had already been paid to build the wall were left to rust on the ground.
In October 2021, Missouri and Texas sued the president and Department of Homeland Security Secretary Alejandro Mayorkas, requesting the court order them to complete border wall construction. Former Texas General Land Office Commissioner George P. Bush also sued. The GLO owns over 500,000 acres of land near the U.S.-Mexico border, with an estimated 31 linear miles along the Rio Grande. When Gov. Greg Abbott began building Texas’ own border wall, the area where it was first constructed was on GLO land.
In response to the lawsuits, Mayorkas, as he has in nearly every lawsuit filed against him, argued he has “discretion” to change or implement policies how he sees fit. In this case, DHS argued regardless of the statutory language stipulating that funds be used to construct the border wall and barriers, he had discretion over how those funds could be spent.
The cases were consolidated, and as they progressed, Mayorkas moved forward with reallocating border wall funding to focus on environmental projects and maintenance repairs instead.
U.S. District Court Judge Drew Tipton of the Southern District of Texas McAllen Division on Friday issued a ruling on the consolidated cases. He issued a preliminary injunction against the administration prohibiting it from redirecting statutorily obligated funds away from border wall construction.
In response to the ruling, Attorney General Ken Paxton said, “Biden acted completely improperly by refusing to spend the money that Congress appropriated for border wall construction, and even attempting to redirect those funds. His actions demonstrate his desperation for open borders at any cost, but Texas has prevailed.”
Texas Land Commissioner Dawn Buckingham, M.D., said the ruling was “a significant victory in Texas’ pursuit of border security and ensuring that the White House follows the Rule of Law.”
The Biden administration has taken contradictory approaches to border wall construction and barriers. It initially sought to block border wall construction by using the Endangered Species Act. In 2022, it proposed designating 691 acres in two Texas border counties, Starr and Zapata, as critical habitat for the prostrate milkweed, an endangered wildflower. In 2023, it expanded its efforts to protect freshwater river mussels in three Texas border counties.
Mayorkas then reversed course in October 2023 when he announced DHS was waiving 26 federal laws to finish completing a section of the border wall in the Rio Grande Valley in an area where it halted construction more than two years prior.
In October 2023, Mayorkas said in the six-page filing with the Federal Register, “There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas,” citing sections of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
At the time, Rio Grande Valley Sector Border Patrol agents had apprehended a record more than 245,000 foreign nationals illegally entering in the region between ports of entry fiscal year through early August, the Federal Register filing stated.
Mayorkas said he had “determined, pursuant to law, that it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in Starr County, Texas.”
Since then, the federal government and Texas have been embroiled in two lawsuits related to concertina wire and marine barriers in Eagle Pass. The Supreme Court intervened in the first; the second case is on appeal at the Fifth Circuit.
In Fridays’ 57-page ruling, Tipton disagreed with Mayorkas’ position on discretion, as have federal judges in cases filed in other states like Florida.
On the issue of discretion, Tipton wrote, “The Court disagrees. Whether the Executive Branch must adhere to federal laws is not, as a general matter, an area traditionally left to its discretion. And without that discretion, DHS’s spending decisions run afoul of the APA,” referring to the Administrative Procedures Act.
The order prohibits the federal government “from obligating funds” under the law in question “toward mitigation and remediation efforts, repair of existing barrier, so-called system attribute installation at existing sites, or other similar purposes.” Funds can be used under the law only for “the construction of physical barriers, such as additional walls, fencing, buoys, etc,” he said.
The Biden administration has seven days to appeal to the Fifth Circuit, according to the order.
