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Texas, Missouri find Fifth Circuit ally in fight over Biden border spending

The GOP-controlled states claim the president is ignoring a clear mandate from Congress that appropriated funds are meant for border wall construction.

(CN) — A Fifth Circuit judge Tuesday lambasted President Joe Biden for canceling border wall construction projects, calling it "absurd" his administration is installing cameras and sensors to deter migrants in lieu of physical barriers.

Texas and Missouri sued Biden and Department of Homeland Security officials in October 2021, claiming the president had eschewed directives from Congress, laid out in appropriations bills for fiscal years 2020 and 2021, to spend more than $2 billion on a barrier system at the southwest border.

The red states say they have standing because they subsidize the cost of driver’s licenses for undocumented immigrants and incur education and health care costs for them, and the canceled projects will cause more to enter their states.

While his predecessor Donald Trump spearheaded construction of 450 miles of border wall, mostly replacing existing barriers, Biden made his aversion clear from the start of his presidency.

He called the project a “waste of money” – some sections erected under Trump cost $27 million per mile – and said “building a massive wall that spans the entire southern border is not a serious policy solution.”

U.S. District Judge Micaela Alvarez, a George W. Bush appointee in McAllen, Texas, consolidated the states’ lawsuit with another filed by the Texas General Land Office and its Commissioner George P. Bush alleging its 3,099-acre farm in Starr County had become a “superhighway” for illegal crossings because Biden had halted Homeland Security’s plans to build a wall across the property.

Alvarez dismissed the states’ lawsuit in August. She said Missouri, a landlocked state some 1,000 miles from the border, could not trace its harm to Biden’s policy.

The judge also determined Texas had impermissibly split its claims against the federal government among its attorney general and Bush, its land office commissioner. But she did allow the Texas General Land Office’s suit to proceed because it specified how Biden’s border enforcement regime had impacted its farm.

Missouri and Texas appealed to the Fifth Circuit and a found a fierce ally on a three-judge panel in a hearing Tuesday.

In his opening line, Justice Department attorney Mike Shih said Texas and Missouri are implying the administration’s spending plan for the Congress-appropriated funds is doing nothing meaningful for the border.

“I want to be very clear that’s not the case,” Shih went on. “Under the plan, DHS is constructing force multipliers to make existing barriers work better. They’re building cameras and lighting systems –”

U.S. Circuit Judge Edith Jones interrupted: “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. … So I don’t care what force multipliers. They haven’t stopped fentanyl. They haven’t stopped illegals.”

“Your honor—” Shih interjected.

Jones drowned him out, saying, “So how can you argue with a straight face that alternatives to a barrier have been implemented that fulfill the directives of Congress in 2020 and 2021?”

Shih noted illegal crossings are up despite the fact there are more barriers now on the southwest border than at any point in recent U.S. history, adding that no single policy determines whether someone chooses to cross the border. The decision turns on many things, he said, such as conditions in migrants’ home countries.

“It turns on whether borders are enforced or not,” Jones replied. “It turns on whether the immigration policy has any teeth, and obviously the implication throughout the world is the United States no longer has borders.”

She cited the small numbers of undocumented immigrants the Border Patrol was apprehending in the final months of Trump’s presidency: “So what explains the fact there was something like only 9,000 a month, I may be slightly off on the statistic, at the end of the last administration?”

The Ronald Reagan appointee dominated the 40-minute hearing with lengthy diatribes against Biden's border barrier reboot while her colleagues, U.S. Circuit Judges Jerry Smith and James Graves, a Reagan and Obama appointee, respectively, each spoke no more than 30 seconds.

Attempting to placate Jones, Shih turned to the language of the appropriations bills at issue. He argued they do not compel DHS to construct border walls but “appropriate funds for the construction of barrier system.”

He explained border walls are only effective with supporting infrastructure.

“It’s not enough simply to have a wall on the border, if, for example, there are no cameras or lights to tell agents that someone is cutting through the barrier,” Shih said.

“If there are no roads to get to the border barrier system then there’s no way for agents to actually get there and figure out whether or not there’s evidence of crossing,” he added.

Jones was unmoved: “You said at the outset people can’t climb over these walls very easily, right?”

Shih acknowledged walls are an obstacle to crossing but doubled back to his claim cameras and motion sensors are necessary “force multipliers” for barrier systems.

“I don’t know,” Jones said. “I have a physical barrier between my backyard and my neighbors’ backyards and we can pretty well see whether anybody is trying to cross over those.”

“That’s true, your honor,” Shih quipped. “But your house I would wager is quite close to that barrier and Border Patrol agents’ routes may not very well be close to the barrier.”

Urging the appellate panel to reverse dismissal of the states’ lawsuit, Michael Talent, Missouri deputy solicitor general, focused on Congress’ language in its FY 2020 appropriations bill.

He argued that by claiming Congress had given DHS broad discretion how to spend the funds, the Biden administration was overlooking another section of the bill that references the design of border walls.

“It specifically says a steel bollard design,” Talent said. “The obvious implication of that is Congress intended for the money to go to building physical barriers.”

The panel did not indicate when it would issue a ruling.

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