Federal judge rules against Texas in border barrier lawsuit against DHS

DEL RIO, Texas (CN) — The state of Texas on Thursday was quick to appeal a federal judge's ruling denying its bid to stop border patrol agents from cutting its concertina wire border barrier.

Late last month, U.S. District Court Judge Alia Moses temporarily restrained the Department of Homeland Security and the U.S. Border Patrol from cutting the wire and allowing migrants to pass through. Following a preliminary injunction hearing earlier this month, the George W. Bush appointee found there was insufficient evidence to support enjoining the federal agencies actions as the case continues. 

Texas argues that federal agencies have instituted a policy of cutting the concertina wire without proper authority, and to the detriment of state property, and seeks a permanent injunction against federal officials and a declaration that their actions are unlawful. 

Moses wrote in her 34-page opinion that the state is unlikely to succeed with its claims that the agents' actions violate the Administrative Procedures Act, a federal statute regulating how agencies issue regulations.

Furthermore, the judge found evidence to suggest that a formal policy allowing agents to cut the wire had ever been made. However, she noted, "discovery may produce information that sheds new light on the nature of the directives to cut... the plaintiff’s concertina wire."  

Despite ruling against the state, the judge took the opportunity to air some frustration at the federal government’s justifications for cutting the state’s barrier. 

The Biden administration argued that destruction of the barrier was in the pursuit of “[discharging] their statutory obligation to inspect, apprehend, and detain individuals unlawfully entering the United States,” as well as “to prevent or address medical emergencies.”

Moses rebuked the DHS' argument, finding that if allowed to stand, border enforcers would have the ability essentially to create a port of entry wherever they see fit. The judge said the evidence presented by DHS to justify its actions showed an “utter failure” to stop unlawful entries into the United States.

“The defendants cannot claim the statutory duties they are so obviously derelict in enforcing as excuses to puncture the plaintiff’s attempts to shore up the defendants’ failing system,” Moses wrote. 

As for DHS’ claim that cutting the wire is needed to prevent and address medical emergencies, the judge accepted the justification but was keen to parse out an objective standard of what rises to a medical emergency, and not “the subjective determination of a particular agent.”

Having failed to secure the preliminary injunction, Attorney General Ken Paxton said in a written statement that he was disappointed with the ruling, but will continue to seek a more favorable outcome. The Republican took pointed jabs at President Joe Biden directly, blaming his administration for the “utter failure” as described in the judge’s ruling. 

“Biden’s doctrine of open borders at any cost threatens the safety of our citizens, and we will continue to fight it every step of the way,” Paxton said. 

Paxton swiftly appealed the ruling, placing the matter before the conservative, New Orleans-based Fifth Circuit Court of Appeals.

The federal appeals court is seen as a friendly venue for Paxton to take his case. Most recently, the court sided with Texas Governor Greg Abbott over an executive order he signed targeted the transporting of migrants. In that case, a three-judge panel found that immigrant rights groups' claims against Abbott were barred by sovereign immunity.

Texas’ tug-of-war with the federal government over border enforcement has been heating up steadily since the spring of 2021 when Abbott began Operation Lone Star, a multi-pronged border security initiative aimed at stemming the flow of unlawful entries into the state. 

Thousands of Texas National Guardsmen and officers within the Department of Public Safety have been stationed on the border to help apprehend undocumented migrants and to erect miles of barriers, like that of the razor wire at issue in this latest dispute between the state and federal government.

Abbott has also used Operation Lone Star to transport thousands of migrants awaiting their day in federal immigration court to Democratic cities such as New York, Chicago and Washington.

The state has spent an estimated $9 billion on the operation.

Republicans in the legislature recently passed a bill creating criminal penalties for illegally entering the state from Mexico and authorizing state law enforcement to deport undocumented migrants. The legislation is awaiting Abbott’s signature but is expected to face challenges once it is signed. 

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