WASHINGTON, DC — A divided Supreme Court issued a stay allowing Biden administration agents to open Texas’s border barrier, blocking an appeals court ruling that favored Texas in the ongoing fight between the Biden administration’s open border policies and Texas’s attempts to secure the border, with two Republican-appointed justices joining the Democrats in a five-to-four vote on this temporary stay Monday as litigation continues in the lower court.
A three-judge panel of the United States Court of Appeals for the Fifth Circuit had issued an injunction favoring Texas on December 19. As Judge Kyle Duncan wrote for the court, explaining the problem:
The number of Border Patrol encounters with migrants illegally entering the country has swelled from a comparatively paltry 458,000 in 2020 to 1.7 million in 2021 and 2.4 million in 2022. Unsurprisingly, the situation has been exploited by drug cartels, who have made an incredibly lucrative enterprise out of trafficking human beings and illegal drugs like fentanyl, which is frequently encountered in vast quantities at the border.
The panel decision continued:
In 2021, Texas launched Operation Lone Star to aid the Border Patrol through allocation of state resources. The activity in question here is Texas’s laying of concertina wire along several sections of the riverfront. The c-wire serves as a deterrent—an effective one at that, causing illegal crossings to drop precipitously. By all accounts, Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties work cooperatively across the state, including in El Paso and the Rio Grande Valley.
Texas had made significant progress, but with one problem area, as the court explained:
By September 2023, Texas had installed over 29 miles of c-wire in [the Eagle Pass] area. Both the Border Patrol and Texas agree that the c-wire must be cut in the event of an emergency, such as the threat of a migrant’s drowning or suffering heat exhaustion. The problem arises when Border Patrol agents cut the wire without prior notification to Texas for reasons other than emergencies.
EXCLUSIVE: Migrants Push Small Children Under Texas Razor Wire as Thousands Cross the Border
Randy Clark / Breitbart
Texas sued to stop federal agents from cutting the border wire, claiming trespass both a tort called “trespass to chattels” and a violation of the Administrative Procedure Act (APA). Attorney General Merrick Garland’s U.S. Department of Justice (DOJ) moved to dismiss the case. As Duncan noted, “The federal government and its agencies are immune from suits, even by states, unless Congress clearly consents by waiving sovereign immunity.”
But the New Orleans-based appeals court rejected the DOJ’s claim of immunity, reasoning that under the relevant section of the APA, “Section 702’s plain terms waive sovereign immunity for any suit seeking nonmonetary relief in federal court.”
The Fifth Circuit also rejected the DOJ’s other arguments, starting with the idea that Texas’s torts claims can only be brought against the federal government under the Federal Tort Claims Act (FTCA). The panel also rejected the DOJ’s claim of intergovernmental immunity because Texas was not seeking to regulate the Border Control directly or treat the federal government worse than other parties. The court also rejected the DOJ’s claim of jurisdictional immunity because the DOJ claimed that the U.S. Department of Homeland Security (DHS) claimed authority to do so under 8 U.S.C. §§ 1103(a)(3) and 1357(a)(3), neither of which are covered by that immunity.
The appellate court also approved of much of the trial court’s reasoning in Texas’s favor, including:
The district court found that the Border Patrol exceeded its authority by cutting Texas’s c-wire fence for purposes other than a medical emergency, inspection, or detention. Moreover, the public interest supports clear protections for property rights from government intrusion and control.
U.S. Solicitor General Elizabeth Prelogar, Biden’s top lawyer at the Supreme Court, applied to that court for a stay of that injunction, which has the effect of temporarily putting the lower court decision on ice while appeals continue. To the surprise of many, the court granted it by a five-to-four vote.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted against the stay. That means that both Chief Justice John Roberts and Justice Amy Coney Barrett joined with the three liberal justices to issue the stay.
EXCLUSIVE: Texas Guardsmen, DPS Vanish as Migrants Breach Razor Wire on Border
Randy Clark / Breitbart Texas
This is alarming to those attempting to address the crisis at the border because two of the factors for a Supreme Court stay are a likelihood that the court will grant a review of the appeals court’s decision and that there is a reasonable prospect that the justices will reverse the lower court. It is not at all surprising that the justices would at least hear an appeal requested by Prelogar. But the separate factor of the chances of ultimate success means that both Roberts and Barrett think there is at least a decent prospect that they will agree with at least one of the DHS’s arguments that the Fifth Circuit rejected.
That is not any sort of final determination on the merits, but it is not an encouraging sign for those seeking to secure the border, increasing yet again the stakes in the likely White House rematch between President Joe Biden and former President Donald Trump.
The application is Department of Homeland Security v. Texas, No. 23A607, in the Supreme Court of the United States.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department. Follow him on X (formerly Twitter) @kenklukowski.