(CN) — Texas and Missouri can proceed with their lawsuit challenging the Biden administration’s decision not to build border walls with more than $2 billion Congress appropriated for the endeavor, a divided Fifth Circuit panel ruled Friday.
While former President Donald Trump made construction of barriers at the U.S.-Mexico border a priority during his tenure — even causing the longest government shutdown in U.S. history at 35 days after Congress declined to allocate $5 billion for the project — President Joe Biden entered office with a polar-opposite view.
Chiding Trump’s goal of building a “big, beautiful wall” across the 1,951-mile southwest border as “not a serious policy solution,” Biden issued a proclamation on his first day in office directing the Department of Homeland Security to pause work on all wall building.
The Texas General Land Office, and its then-Commissioner George P. Bush, sued the Biden administration in July 2021, claiming its decision to halt wall construction along the GLO’s 3,099-acre farm in Starr County had turned the property into a “superhighway” for illegal crossings.
Three months later, Texas and Missouri followed the GLO to federal court with their own lawsuit. They alleged Biden had flouted the will of Congress to use $1.375 billion it appropriated in fiscal year 2020 and that same amount the next fiscal year for building barriers.
They contended canceling construction would lead to more people illegally entering their states, forcing them to spend millions of taxpayer funds on education, health care and driver’s licenses—Texas subsidizes the cost of driver’s licenses—for people without papers who would have been warded off by walls, or funneled to areas where Border Patrol agents could more easily intercept them.
U.S. District Judge Micaela Alvarez, a George W. Bush appointee in McAllen, Texas, dismissed the states’ lawsuit last August.
She said Missouri could not attribute its harm to Biden’s policy given it is 1,000 miles from the border.
She determined Texas had impermissibly split its claims by bringing similar claims against the federal government via two agencies, the GLO and the Texas attorney general’s office, that she deemed “functionally identical” because they both belong to its executive branch.
She did allow the GLO’s suit to advance because it specified how Biden’s border wall about-face had impacted its farm.
The states appealed to the Fifth Circuit and found one judge of the New Orleans-based court to be very sympathetic to their arguments during a hearing in December.
When a Justice Department attorney said instead of building walls, the Biden administration is constructing “force multipliers” — cameras, lighting systems and roads — to make existing barriers work better, U.S. Circuit Judge Edith Jones cut him off.
“You know what, that is so absurd. The facts on the ground [are] at least 3 million people have surged through the border in the last year and three-quarters with no end in sight,” Jones said, citing the record numbers of immigrants the Border Patrol apprehended entering the U.S. from Mexico during the first two years of Biden’s presidency, though many were taken into custody after approaching Border Patrol agents and asking for asylum.
Writing for the majority of a three-judge panel, Jones revived Texas’ and Missouri’s lawsuit Friday.
Joined by her fellow Ronald Reagan appointee, U.S. Circuit Judge Jerry Smith, Jones found Texas and its General Land Office had not, as Alvarez decided, violated a precedential rule against claim splitting.
She said the GLO is suing to protect its rights as a landlord that leases out its Starr County property to farmers, while Texas filed suit over additional health care, education, driver’s license and criminal justice costs it claims it will incur if walls go unbuilt.
“The fiscal interests asserted by Texas are plainly distinct from the GLO’s narrower proprietary interests,” Jones wrote in a 15-page order.
Jones concluded those same fiscal concerns give Texas standing, including over $2 billion the state has spent on Governor Greg Abbott’s Operation Lone Star border security initiative, with $750 million dedicated to the construction of border walls on state land and the property of private owners who agree to it.
And only one state needs standing for the case to proceed, Jones noted.
Just as she did in the December hearing, Jones made clear in Friday's order she agrees with Texas.
“Texas alleges (and the DHS has in the past affirmed) border barriers (i) reduce illegal entries in areas where constructed, and (ii) increase the rate at which illegal aliens are detected and apprehended,” she wrote.
"These benefits reduce some number of illegal immigrants entering Texas, even if they do not fully stem the tide, and thereby reduce Texas’s costs relative to a non-border wall policy," she continued.
Jones remanded the case to Alvarez with instructions to expeditiously rule on the states’ preliminary injunction motion because the appropriations at issue expire in September 2024 and September 2025.
U.S. Circuit Judge James Graves, a Barack Obama appointee, wrote a separate opinion, concurring and dissenting in part with the majority.
He said he would have affirmed Judge Alvarez’s decision to dismiss Texas from the litigation. But he agreed with the majority that Alvarez erred by finding Missouri lacked standing at this early stage of the case.
Should Alvarez deny Texas and Missouri an injunction they are well-positioned to prevail on appeal as Jones stipulated in her order that any future request for appellate relief be directed to the same panel of herself, Graves and Smith.
The White House did not respond to a request for comment on the ruling.
From the first day Biden entered the White House, Governor Abbott and other Republicans have accused him of encouraging undocumented immigrants with so-called open-border policies. But until last month Biden kept in place Title 42, an ostensibly pandemic-related policy started by Trump in March 2020 that DHS used to promptly expel immigrants more than 2 million times without letting them apply for asylum.
Defying predictions that doing away with Title 42 would lead to more people crossing into the U.S. and cause chaos at the border, Border Patrol apprehensions had ebbed to 3,000 per day in early June, the lowest rate since Biden took office.
The administration replaced the policy with tough new measures that make immigrants ineligible for asylum unless a country they passed through on their way to the U.S. denied them protection, they are unaccompanied children, they are dealing with "exceptionally compelling circumstances" such as a medical emergency, or facing imminent threats of murder, rape or kidnapping.
Homeland Security has also returned to pre-pandemic rules called Title 8 that are stricter than Title 42.
"Unlike under Title 42, an individual who is removed under Title 8 is subject to at least a five-year bar on re-entry into the United States and can face criminal prosecution if they attempt to cross again," DHS Secretary Alejandro Mayorkas said in a May 10 press briefing.
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