Department of Homeland Security, et al., Applicants v. Texas

(750 words)
The state of Texas, as well as many other states, are tired of being over run by illegal aliens. Having begged the federal government to do their job, Texas and Arizona have had enough and have stepped up to do the job of Customs and Border Patrol.

Texas initiated Operation Lone Star after the Governor declared a border security disaster, in 2021.

One of the initiatives was buying and placing concertina wire fencing on the US side of the border on private (and state?) lands. Not federal land. Texas received the permission of the landowners before placing the fencing.

This created conflict between the Customs and Border Patrol and the State of Texas.

8 U.S.C. §1357(a)(3) gives access to private land within 25 miles of the border, without warrant, to the feds. 8 U.S.C. §1357(a)(1)-(2) allows for the interrogation and arrest of anybody attempting to enter in violation of law. 8 U.S.C. §1226(a) allows them to arrest and detain noncitizens pending a removal decision.

NOTE: The previous paragraph is paraphrased from DHS filings and should not be trusted as a true representation of those sections of 8 U.S.C.

Now we get to the legal fictions and the realities of the world.

Legally, Border Patrol agents have the legal right to arrest illegal aliens as they cross the border illegally. The state of Texas and its people cannot stop the Border Patrol from doing this.

The legal fiction is that Texas was stopping the Border Patrol from doing its job by putting up these barriers, keeping the Border Patrol away from the illegal aliens.

Nobody would have an issue if that was the case, the Border Patrol could arrest and detain those illegal aliens until they are kicked out of the country.

The reality on the ground was different from the legal fiction. On the ground, C&BP were cutting the wire and allowing illegal aliens to enter and NOT arresting or detaining those that they let through.

As part of the legal fiction, they might load those illegal aliens into transport, take them to the bus terminal and release them. They were “detained” for the duration of the bus trip.

We saw videos of C&BP using a fork lift to lift the wire so that illegal aliens could walk through the wire.

Texas filed suit in federal court, STATE OF TEXAS v. US Department of Homeland Security, 2:23-cv-00055, (W.D. Tex.). The suit asks the courts to enjoin the federal government from cutting, destroying or removing the border fence/wire that Texas had installed.

Texas lost. There are 34 pages of excellent analysis and history by the judge who says “The feds are full of it. What they claim and what they are doing are not the same. Texas has good reason for what they are doing.”

The judge then respected the law. I don’t like the decision, but reading his reasons, it is clear why he did. The Judge applied the Winter factors and found that the plaintiffs (Texas) did not reach the bar in “likelihood of success”.

That is to say, the state of Texas was unable to show, at the preliminary stage, that they were likely to succeed on the merits.

This did not mean that Texas had lost, just that the court wasn’t going to issue that preliminary injunction. Given that they had issued a TRO, this indicates that the Judge is doing it correctly.

Texas then appealed to the Fifth Circuit court. There, the Fifth circuit did issue the preliminary injunction pending final judgement. This means that enough of the panel believed that the State was going to succeed on the merits.

DHS then appealed to the Supreme Court on the emergency docket, requesting that the injunction be vacated. The Supreme Court vacated the injunction.

So what does this mean?

It means that the feds can go back to cutting fences.

That’s it.

Nobody is violating the Supreme Court’s ruling.

There is no constitutional crisis.

Texas can put up more barriers. They can lock gates, they can keep the BP away from their fence.

This case is in an interlocutory state. That means it isn’t finished yet. It will now proceed to a final judgement, on the merits.

We already know that whatever happens, it will be appealed to the Fifth Circuit. We already know that it will be appealed from the Fifth Circuit to the Supreme Court.

That is the decision we need to wait for.