Case: Texas v. US Department of Homeland Security

This is a case about the State of Texas and the United State’s Department of Homeland Security (DHS) taking conflicting approaches to border security at the southern border. Texas claimed it was facing a rise in illegal immigration, attributing the surge in individuals seeking asylum to the Biden Administration's failure to secure the border. In response to what it perceived as federal inaction, Texas initiated Operation Lone Star in 2021 to address border security gaps. This operation included deploying concertina wire fencing along the southern border to deter crossings. Texas alleged that federal agents, particularly those from the U.S. Customs and Border Protection (CBP), intentionally damaged and destroyed Texas's concertina wire barriers over a period of several months during 2023, cut openings in the fence, and attached ropes to aid illegal crossings.

On October 24, 2023, Texas filed this lawsuit in the Western District of Texas. Texas sued DHS, seeking a declaratory judgment vacating DHS’s practice of cutting the wires and declaring it unlawful, a preliminary injunction to enjoin the DHS from cutting the concertina wires, and any other appropriate relief. Texas had several claims; two based on state law alleging that federal officials wrongfully exercised control over the state's concertina wire fencing, which was purchased with state funds, and they caused actual damage, impacting the wire’s utility as a barrier fence. Texas also made three claims under the Administrative Procedure Act (APA), arguing that: 1) federal officials acted beyond their statutory jurisdiction by destroying and seizing state-owned border infrastructure; 2) the policy of seizing and destroying concertina wire constituted a substantive rule and implementing it without notice and comment violated required procedures and 3) the policy of destroying concertina wire is arbitrary and capricious. The case was assigned to Chief Judge Alia Moses.

Texas requested a Temporary Restraining Order (TRO) on October 27, 2023. The court granted the TRO three days later, on October 30. 2023. WL 7135677. The court evaluated the likelihood of success on the merits, irreparable harm on both sides, and the public interest. The court found Texas was likely to succeed on the merits of its state law claim, citing evidence of ownership, actual damage to the wires, and a lack of permission for interference. The court also found that the injuries alleged by Texas (extensive costs incurred by the destruction of state property and the hindering of the state's ability to control its property) were irreparable, as costs were unrecoverable due to sovereign immunity. Finally, the court agreed that deterring unlawful activity was in the public interest, but noted a countervailing interest in DHS’s border security duties and allowing CBP agents to address medical emergencies. It suggested that further hearings were necessary to explore the issues of private property rights, border security duties, and the powers of the defendants.

The court extended the TRO an additional two weeks to November 27, 2023, giving the court additional time to evaluate the merits of a preliminary injunction.

On November 29, the District Court denied the plaintiff's motion for preliminary injunctive relief. With regard to the state law claims, the Court concluded that sovereign immunity presented a jurisdictional barrier to the plaintiffs' request for injunctive relief. As for the APA-based claims, the Court determined that there was insufficient evidence of final agency action so as to review the defendants' acts interfering with the plaintiffs' wire fence. The Court also found insufficient evidence that would support a substantial likelihood of success on the ultra vires claim (an exception to final agency action). The defendants immediately appealed the District Court's order to the U.S. Court of Appeals for the Fifth Circuit the following day. 

Texas then sought an injunction pending the appeal so as to prevent the United States Border Patrol from cutting, destroying, or interfering with concertina wire. On December 19, 2023, the Fifth Circuit granted the request, enjoining the defendants from interfering with the wire, except in the case of medical emergencies. 88 F.4th 1127. 

At the District Court, the defendants sought to stay proceedings pending the appeal, but this was denied by the Court on December 22, 2023, requiring the defendants to file an answer to the plaintiffs' complaint within 90 days. 

On January 2, 2024, the defendants filed an emergency petition before the U.S. Supreme Court to vacate the  injunction. On January 22, 2024, the Supreme Court vacated the December 19 injunction in a 5-4 ruling, with no written opinion. 144 S.Ct. 715. 

Given the Supreme Court's decision, the Fifth Circuit then held the appeal in abeyance on January 26, 2024. The Court of Appeals remanded the case, on a limited basis, back to the district court for 60 days in order for the factual record to be developed. Consistent with the remand, the District Court then provided a supplemental findings on March 26, 2024 regarding factual developments with regard to the border since December 2023. The case remains ongoing.