A panel of three judges on the Fifth U.S. Circuit Court of Appeals ruled in favor of Texas in a lawsuit filed over its concertina wire barriers.
The court ruled 2-1 in a case that may set the tone for two other cases before the court related to Texas’ border security operations.
Circuit Judge Stuart Kyle Duncan wrote for the majority, with Judge Don Willett joining him. Judge Irma Carrillo Ramirez dissented, arguing Texas did not meet “its burden to show a waiver of sovereign immunity or a likelihood of success on the merits.”
The ruling was issued 13 months after Texas sued the Biden administration after it destroyed concertina wire barriers it erected on state land.
The court was asked to decide whether Border Patrol agents can legally cut concertina wire fencing erected by Texas law enforcement along its border with Mexico. The Biden administration ordered Gov. Greg Abbott to remove it, arguing he was interfering with federal immigration operations. Abbott refused, arguing that the administration was facilitating illegal entry and violating federal law. In response, the administration ordered Border Patrol agents to use a bulldozer and remove wire fencing. Abbott sued, arguing they were destroying Texas property and Texas has the legal authority to erect barriers on state land.
Texas requested the district court to issue an injunction to block Border Patrol agents from removing the fencing, which it denied despite agreeing with Texas’ arguments.
The court “agreed with Texas on the facts: not only was Border Patrol unhampered by the wire, but its agents had breached the wire numerous times ‘for no apparent purpose other than to allow migrants easier entrance further inland,’” the Fifth Circuit’s 75-page ruling states. However, it denied Texas’ request arguing the federal government had sovereign immunity.
Texas next appealed to the Fifth Circuit, which granted the injunction pending appeal. The Biden administration appealed to the U.S. Supreme Court, which vacated the injunction without any stated reason.
The Supreme Court’s ruling didn’t deter Texas, which continued building and erecting concertina wire in the Eagle Pass area, and later established the military base for Texas’ border security mission, Operation Lone Star, there. OLS officers also expanded concertina wire barriers in other key areas along its border.
“The Texas National Guard continues to hold the line in Eagle Pass,” Abbott said at the time. “Texas will not back down from our efforts to secure the border in Biden’s absence.”
The three-judge panel ruled that Texas “is entitled to a preliminary injunction.” The ruling states that the Biden administration “clearly waived sovereign immunity as to Texas’s state law claims under § 702 of the Administrative Procedure Act,” which it says “is supported by a flood of uncontradicted circuit precedent to which the United States has no answer.”
The Fifth Circuit also rejected other Biden administration arguments, including that Texas was erecting barriers to safeguard its own property, not to “regulate Border Patrol.”
The ruling reversed the district court’s judgment and granted Texas’ preliminary injunction. The court also prohibited the federal government from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass,” including Shelby Park, which Abbott shut down after learning that the Biden administration was using it as a staging ground to facilitate illegal entry into the US.
Abbott lauded the Fifth Circuit ruling, saying, “The federal court of appeals just ruled that Texas has the right to build the razor wire border wall that we have constructed to deny illegal entry into our state and that Biden was wrong to cut our razor wire. We continue adding more razor wire border barrier.”
Attorney General Ken Paxton also said the ruling was a “huge win for Texas.”
“The Biden Administration has been enjoined from damaging, destroying, or otherwise interfering with Texas’s border fencing. We sued immediately when the federal government was observed destroying fences to let illegal aliens enter, and we’ve fought every step of the way for Texas sovereignty and security.”
With weeks left in the administration, the concertina wire barrier case is unlikely to be appealed for a full court review.
In May, the court is scheduled to hear arguments on a lawsuit related to Texas’ marine barriers in the Rio Grande River, unless the case is dropped by the incoming Trump administration. Another case before the court is over Texas’ border security law, SB 4.
