Burningbird

There is a lot of confusion about what is or is not happening in Texas, particularly as it relates to the Supreme Court decision on the razor wire case, and what the courts have ordered Texas to do.

I’ve been following the US vs Texas, Texas vs US border-specific court cases for months, starting with the US lawsuit against Abbott in an effort to remove saw-bladed buoys from the Rio Grande. I decided a quick primer on the cases—with links to the Free Law court document archives—would be helpful. Not just for others … I’m also having a hard time keeping track of which case is in front of the Fifth or for what order.

Needless to say, it’s a mess. And Texas is not the only entity participating in the growing Constitutional crises: the Fifth Circuit court has been a willing partner in the events.

The Texas Buoy case

This is the first case I started following. It’s also the one that interests me the most because of what it says about the Fifth Circuit, and I’ll have a more detailed post on this in the future.

(I have been documenting the case on Facebook, and have since started moving the posts over to Burningbird, under the tag Texas Immigration Lawsuits.)

The events started with Texas placing a 1000 foot string of saw-bladed, deadly buoys with concrete anchors and underwater anti-personnel netting underneath in the middle of the Rio Grande river. Abbott did not contact the Army Corps of Engineers about placing the buoys in violation of the Rivers and Harbors Act. In response, the US sued Texas to remove the barrier.

Timeline of event:

• July, 2023: The US filed suit against Texas and asked for a preliminary injunction to force Texas to remove the barrier. Texas opposed the motion for preliminary injunction.
• The case was assigned to senior judge David Ezra. Texas requested and received expedited discovery. It also asked to consolidate this case with another filed by a canoe company, EPI’S Canoe and Kayak Team, whose business was negatively impacted by the buoys. The plaintiffs in that case successfully argued in court that the case belongs in state court, not federal court, and the case was remanded back to the state court. Mr. Fuentes and his company eventually put the lawsuit on hold pending the outcome of the federal case. (Strongly recommend checking out their Facebook page. The owner, Jesse Fuentes, is a pretty incredible person. If I were to visit Texas it would solely be to go kayaking with him.)
• In August, expedited discovery was allowed for three government witnesses, and the state responded to the US complaint, as well as opposing the request for a preliminary injunction. In addition, the US conducted a survey of the buoys and discovered most were in Mexico’s territory. Texas moved the buoys during the night.
• September 6, Judge Ezra granted the US request for a preliminary motion, but only ordering Texas to remove the buoys to the shore of the river. Texas immediately appealed the order to the Fifth Circuit, and asked for an emergency stay of the preliminary injunction. The stay was granted. The buoys remained in the river.
• In October, while the Fifth Circuit was considering the preliminary injunction appeal, the Texas case continued in the district court. The US filed an amended complaint, noting that the buoy barrier also violated a US treaty with Mexico.
• In December, Texas filed a motion to dismiss.
• The three-member panel of the Fifth agreed with Judge Ezra and upheld the preliminary injunction. Texas requested an en banc (all members) hearing on the appeal. The Fifth granted the en banc hearing.
• In January, Judge Ezra held a status conference on a new schedule for the bench trial on the merits, also promising to decide on the motion to dismiss by end of January.
• In a series of extraordinary events, Texas threatened Judge Ezra that they would go the Fifth the very next day if he didn’t postpone the bench trial. Before the US filed a motion to oppose this demand, and before Judge Ezra even moved on it, Texas demanded that the Fifth stay the trial.
• Counter to the normal procedures, the Fifth Circuit gave Texas what it wanted. Currently, the bench trial on the efforts is on hold until the en banc hearing on the preliminary injunction is held.

I’ll have more on the Fifth’s actions on this case in a future post.

District court docket at CourtListener

Fifth Circuit docket at CourtListener

The Texas Razer Wire Case

It’s tediously difficult to read through a Texas state complaint. The documents are full of hyperbole and extraneous complaints. In this case, Texas sued the US because Border Patrol agents were cutting the concertina (razer wire) blocking access to migrants who had already crossed the US border.

The state didn’t ask for reimbursement of the wire. No, they wanted the courts to forbid the US Border Patrol from cutting the wire in order to access the migrants who either were in danger of being hurt or killed, or who had already crossed the US border.

• October 2023, Texas filed the complaint. It then immediately moved for a preliminary injunction to stop the agency action. A stay was granted until the judge, Alia Moses, ruled on the preliminary injunction.
• The US responded to the request for preliminary injunction, Texas replied, and a hearing was held in front of Judge Moses in November.
• Judge Moses demanded considerable amounts of documents from the US—more than it could provide in the time allotted. She finally eased up a bit and limited the date range for the document request.
• There was a flurry of activity in November, including multiple meetings, amended memorandums, and document production. November 29th, Judge Moses denied the state of Texas its request for Preliminary Injunction.
• Texas immediately appealed the decision to the Fifth. Texas asked the appeals court, in a confused and disjointed request, to halt US border patrol activities except if life was in danger. The Fifth picked its way through the mess to give Texas what it wanted.
• In the response the US filed, this sentence encapsulates the danger of the case:

The fundamental question presented is thus whether a single state, upon becoming dissatisfied with federal policies, may bring a state-law suit to control the manner in which federal officials carry out federal law.

• In December, the Fifth granted Texas’ motion for a preliminary injunction.
• The US immediately filed for an emergency appeal to vacate the injunction with the Supreme Court on January 2. The Supreme Court granted the US request to vacate the preliminary injunction, which means that the US border agents could cut the concertina wire in order to apprehend and/or assist migrants who had crossed the US border.
• The Fifth then issued a limited remand January 28 back to the district court specifically to gather evidence establishing the factual record. Frankly, this sounded screwy to me, but I leave it to the lawyers to say whether this is screwy or not.
• As it stands, the case flow is now back in the district court, with hearings set for March for establishing this factual record. In the meantime. the US Border Patrol can continue doing its duty.

There has been considerable confusion about what the SCOTUS decision means.

It is a limited decision based on a limited request by the US: to deny a preliminary injunction that would have prohibited the Border Patrol from cutting concertina wire in the performance of its duties. Based on the SCOTUS decision, the Border Patrol may cut the wire. However, Texas may still lay down the wire and it isn’t in violation of the Supreme Court decision. And the decision has nothing to do with the buoy case mentioned earlier.

The district court docket 

The Fifth Circuit case docket

SCOTUSBlog Supreme Court case docket

The SB4 Case

In 2023, the Texas legislature passed Senate Bill 4 (SB4). The US sued Texas soon thereafter. In its complaint, the US stated:

The United States brings this action to preserve its exclusive authority under federal law to regulate the entry and removal of noncitizens. Texas’s Senate Bill 4 (SB 4) creates purported state immigration crimes for unlawful entry and unlawful reentry, permits
state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders. But Texas cannot run its own immigration system. Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations. SB 4 is invalid and must be enjoined

SB4 has been compared to Arizona’s SB1070, passed in 2010, and which was partially struck down in the Supreme Court in 2012. There are a lot of similarities between the two bills, but there’s one major difference: SB4 actually allows state authorities to deport migrants they deem illegal. Not even Arizona went this far in their law. SB4 is blatantly, and I mean blatantly, unconstitutional.

• Texas passes SB4 and Abbott signs it into force in December, 2023.
• The Las Americas Immigrant Advocacy Center and the County of El Paso filed suit against Texas in January.
• Soon after, January 3, the US filed suit against Texas.
• In January, both cases were consolidated and assigned to Judge Pittman.
• The US files for a preliminary injunction against Texas, and Texas files a motion to stay its response to the complaint until after the preliminary injunction decision.
• January 30, the case was reassigned to Judge David Ezra.

I have some concerns about the case being moved to Judge Ezra, and not because he’s not a good judge. It’s because of the overt hostility displayed against him by members of the Fifth. The actions of the Fifth are as much, or more, responsible for the mess this situation is, as Texas.

The court case docket at Court Listener

 

One particular passage stands out for me.

The courts have to consider every argument raised in self-defense in a court case. Including Texas’ assertion that it was protecting itself “against an invasion.”

‘Here, Texas’s self-defense argument does not preclude the issuance of a preliminary injunction. First, the district court adequately considered Texas’s arguments. Further, the district court, mindful of the sensitive nature of the parties’ interests in this case, sought to expeditiously seek a determination on the merits.

Finally, the gravity of Texas’s argument—
particularly the constitutional implications of a single state’s ability to declare it is invaded and select its own means of waging war—suggests it would be best considered on a fully developed record.’
“…the constitutional implications of a single state’s ability to declare it is invaded and select its own means of waging war…”

Think about what Abbott and his pet AG Paxton are saying…that they have been invaded and they can choose the means with which to wage war.

Think about how bad the Fifth and SCOTUS have become for a state to believe that it, not the US government, can declare an invasion and wage a war. This is tantamount to Texas declaring itself independent of the US.

And as the two (liberal-appointed) circuit judges noted:

The barrier didn’t work, anyway.

Decision