The Press Misleads - The Supreme Court has not Eliminated Texas' Right to Defend Its Property.
It ain't over 'till it's over.
As is now well known, the Supreme Court issued an order in the appeal of the lawsuit by the State of Texas against the Biden administration’s efforts to take down the concertina wire that Texas emplaced as part of its efforts to stem the invasion across its southern border. The Court’s order vacated an injunction previously entered by the Fifth Circuit Court of Appeals that had prohibited the Government from damaging or destroying Texas’ wire.
The Supreme Court’s order has been the subject of widespread and sometimes fiery commentary. However, the press and commentators are misanalysing the order. Governor Abbott and Texas are still free to prevent the feds from cutting their wire. The Supreme Court’s order does not forbid that. The press is misleading you.
THE PRESS DECLARES VICTORY FOR BIDEN
Virtually every published article and commentary I have seen discussing the Supreme Court’s order, construe it as ordering Texas to permit the federal to continue its efforts to destroy the concertina wire, and giving the Court’s stamp of approval to Mayorkas’ and Biden’s efforts to keep the border open. According to the press and many commentators, the Supreme Court basically has removed any impediment to those efforts. Conservative authors and commentators have skewered the Court, especially Justices Roberts and Barrett, who sided with the three liberal justices, for supposedly failing to uphold Texas’ right to protect itself against the invasion.
The liberal media trumpeted this as a great and wonderful win for Biden. The New York Times lead the way with a headline blaring, “Supreme Court Backs Biden in Dispute With Texas Over Border Barrier.” It said,
The Supreme Court sided with the Biden administration on Monday, allowing federal officials to cut or remove parts of a concertina-wire barrier along the Mexican border that Texas erected to keep migrants from crossing into the state.1
The usual culprits followed the Times’ prompting. CNN, for example, wrote that the “US Supreme Court voted to let federal Border Patrol agents remove the barrier.” It claimed that Biden had scored a “victory” “in the ongoing dispute with Texas over whether Border Patrol has the legal authority to cut concertina wire installed by Texas on the banks of the Rio Grande.” As discussed below, however, the Supreme Court did no such thing. It did not purport to rule on whether the Border Patrol had the “legal authority” to cut the wire. CNN then slathered icing all over its homemade cake, quoting some nameless “law enforcement source” as saying “This goes far beyond ‘reserving the right’ [to cut the wire]. The US Supreme Court has ordered it.” This, in a word, is hogwash.
THE SUPREME COURT HAS NOT DEPRIVED TEXAS OF ITS RIGHT TO PROTECT ITS PROPERTY.
Although the Times is technically correct that the feds can continue to try to destroy the wire, the reporting has widely been interpreted as affirming their right to do so. This interpretation is fostered by the Times declaration that this was a “victory” for Biden, followed by reporting such as that by CNN.
That gets it wrong. It evidences a misunderstanding of the effect of the Supreme Court’s order. The Supreme Court has not approved the Border Patrol destroying the wire or anything else. As of this writing, Texas still has a right to maintain the wire and enforce its laws against the lawless conduct at the border.
To explain why, I will first provide a summary of the procedural posture of the case, with a few observations about the substance of the lower courts’ rulings. Understanding what the courts did and did not do is key to understanding that the Supreme Court’s Order is not the unabashed victory for Biden and Mayorkas that the media has portrayed.
A BRIEF SUMMARY OF THE CLAIMS IN TEXAS’ SUIT
Governor Abbott directed the installation of concertina wire (commonly referred to as “razor wire” by the press) to try to prevent illegal immigrants from coming into Texas. The federal government directed border agents to begin cutting it down, and they did. To stop them, Texas filed its lawsuit. Among other things it sued the government for trespass. The trespass count is a bit different than what most people think of as a trespass, i.e., an unauthorized or illegal entry on land. Texas’ trespass claim was for trespass to “chattels.” “Chattel” is a fancy legal term for tangible property that is not land or attached buildings. The chattel at issue here was the concertina wire that the feds were trying to destroy, which was Texas’ property.
INTRODUCTION TO INJUNCTIONS 101
Since we are dealing with an injunction, here is a short course for the layperson on injunctions. When a lawsuit is first filed, the Plaintiff (here, Texas) may ask the trial court to issue a temporary restraining order (TRO) against the Defendants. The purpose of a TRO is to freeze the status quo by ordering the Defendants not to take some action that it could not take if it ultimately loses the case. To obtain a TRO, the Plaintiff must show, among other things that it is likely to win on the merits when the case is tried and that it will be irreparably harmed if the Defendant in not restrained from taking the specified action. A TRO normally will expire in 14 days, unless the court extends it.
Because a TRO may be entered on an emergency basis before the Defendant has been heard from, the next step is a hearing at which both sides can present evidence and argument to determine if the TRO was properly issued. If the court finds that the TRO was proper, including that the Plaintiff is likely to win when the full case is tried, the Court will issue a temporary injunction. The injunction basically extends the TRO until a full trial on the merits can occur, which may be months or even years away.
TEXAS SEEKS AND OBTAINS A TRO.
Three days after filing its suit, Texas sought a TRO. The very next day it gave the Court notice that after the Government Defendants knew that the motion for a TRO was filed with the Court, they went ahead and used a forklift to begin to destroy the concertina wire before the court had a chance to act. The district court then granted the TRO on an emergency basis. It enjoined the Defendants “from interfering with [Texas’s]concertina wire except for medical emergencies.” Over the next ensuing month, the district court conducted two hearings on the motion for a preliminary injunction. It heard testimony from multiple witnesses and received thousands of pages of evidence (including five videos).
The Government’s action in trying to destroy the concertina wire was not necessarily illegal, because the court had not yet entered a restraining order or injunction forbidding it. However, taking such action after a motion for an injunction has been filed but before the court has had a chance to rule on it, is risky because it tends to alienate judges who may think that the responsible party is usurping the court’s proper role.
THE DISTRICT COURT FINDS IMPROPER GOVERNMENT CONDUCT BUT VACATES ITS TRO.
When the district court ruled on the preliminary injunction it first made numerous factual findings that showed that the government had acted wrongfully. Among other things it found that the following occurred:2
The court was “aware of at least fourteen incidents of wire cutting.”
The court rejected the Defendants’ claims that the Border Patrol was justified in cutting the wire “(1) to inspect, apprehend, and detain illegal aliens; and (2) to prevent or address medical emergencies.”
The Border Patrol “cut the c-wire ‘for no apparent purpose other than to allow migrants easier entrance further inland.’”
In one wire-cutting incident, “Border Patrol agents cut two additional holes in the c-wire 15 feet away from an existing hole and installed ‘a climbing rope for migrants.’ Meanwhile, a Border Patrol boat ‘passively observ[ed] a stream of migrants’ crossing the river who were never ‘interviewed, questioned as to citizenship, or in any way hindered in their progress into the United States.’ Instead, after letting the migrants through, the Border Patrol sent them to ‘walk as much as a mile or more’ with no supervision in hopes they would proceed to the nearest immigration processing center.”
The Government claimed that the Border Patrol’s wire-cutting actions “were intended to inspect, apprehend, and process incoming aliens.” However, despite the thousands of pages of exhibits and multiple witnesses, the court “found no alien was ‘inspected’ at all.” Applying a dose of common sense, the court noted that “Moreover, if agents intended to inspect, they could have done so without doing anything to the wire.”
The court also rejected the Government’s argument that the Border Patrol needed to cut the wire to do its job (an argument that Biden continues to advance): “Nor was wire-cutting necessary to ‘apprehend’ or ‘process’ aliens.”
However, despite the fact that the district court apparently believed that the Government had acted wrongfully, and made numerous factual findings detailing the Government’s misconduct, it vacated the TRO and declined to issue a preliminary injunction. The basis of its ruling was that the government enjoyed sovereign immunity and could not be sued.
Based on that refusal to grant a preliminary injunction, the case reverted to the status quo – the wire was in place, the Government wanted to tear it down, Texas wanted to keep it in place, and no court order told anyone what they could or could not do in that regard.
THE COURT OF APPEALS GRANTS AN INJUNCTION.
Texas appealed to the Fifth Circuit Court of Appeals. That court, however, disagreed with the district court, and held that sovereign immunity did not shield the Government from the claim for trespass because Texas was not seeking monetary damages for the claim, but only the injunction. The Fifth Circuit then entered its own injunction:
“Defendants are ENJOINED during the pendency of this appeal from
damaging, destroying, or otherwise interfering with Texas’s c-wire fence in
the vicinity of Eagle Pass, Texas, as indicated in Texas’s complaint. As the
parties have agreed, Defendants are permitted to cut or move the c-wire if
necessary to address any medical emergency as specified in the TRO.”
OFF TO THE SUPREME COURT
The Government appealed the Fifth Circuit’s ruling to the Supreme Court. It raised a number of defenses that did not address the merits of whether Texas had a right to keep the wire in place. As expected, one of those was that the Government enjoyed sovereign immunity and could not be sued for trespass to Texas’ chattel, i.e., the concertina wire.
On Monday, a 5–4 decision, the Supreme Court reversed the Fifth Circuit’s injunction order. It did so in a two-paragraph order that offered no explanation:
“The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.”
THE SUPREME COURT’S ORDER LEAVES TEXAS’ OPTIONS OPEN
The reason that the press and other commentators and critics are incorrect is that they apparently fail to understand the limited effect of vacating an injunction. After the Supreme Court’s order vacating the injunction, the status quo was the same as it was prior to the TRO ever being entered: There is no court order prohibiting the Government from taking down the wire AND there likewise is no Supreme Court order or opinion saying that the Government had a right to take down the wire. Nor is there an order by any court that Texas cannot protect its own property, namely the concertina wire.
Because the government had raised the sovereign immunity defense and because the Supreme Court did not explain the reason for its order, it is possible that the Court vacated the injunction because the government is immune from injunctive relief. We don’t know what the reason was. Anyone who claims they do know is just speculating. The Supreme Court didn’t approve anything; it just disapproved the injunction for unexplained reasons.
So, at this point, there simply is not a court order in this case governing who can do what to the concertina wire. The Government is free from the restraints of any court order forbidding it to destroy the wire. But, just as the Government was legally free to continue destroying wire after the TRO was filed but not entered, Governor Abbott is likewise free to have the Texas Rangers or National Guard safeguard the wire and block the feds from destroying its property (at least until Biden federalizes the National Guard). Someday a court might tell either party that they were wrong, but that day has not yet come.
WHAT NOW?
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
U.S. Constitution, Article IV, Section 4.
For months, due to the unprecedented foreign invasion across our southern border by people from countries all over the world, including military-age men from China and the Middle East, we are in a state of national crisis. During this time, President Biden has violated his oath of office by failing to discharge his Constitutional duty to the states, to “protect each of them against Invasion.”
A majority of Americans in both parties, acknowledge this, as has President Joe Biden even while he fails to take effective steps to deal with it. However, Texas’ efforts to deal with the crisis are not yet dead. Governor Abbott is unconstrained by any court order forbidding him from protecting Texas and its property.
Democrat politicians have called on President Biden to federalize the Texas National Guard to prevent its use by Governor Abbott. To do so would be politically risky for Biden, but he would still have the Texas Rangers and the Texas State Guard, which is a state militia not subject to federal call-up.
Tonight (Thursday, Jan. 25) Lt. Governor Dan Patrick also called on other GOP governors to send their state national guards to help Texas secure the country. They should, so that if Biden is tempted to federalize the Texas National Guard, then he will have to federalize the national guards from twenty-seven states, not one.
Governor Abbott and other Texans still have the power to say to Biden, as might the defenders of the Town of Gonzales or Spartan King Leonidas I, “Come and get it.”
All bolded font is added.
These factual findings by the district court are taken from the later opinion by the Fifth Circuit Court of Appeals. The quotes are from the Fifth Circuit’s opinion, which also quoted from the district court opinion.
Here is a correction that Glenn Reynolds posted on Instapundit: “One small correction: The Texas State Guard (not to be confused with the Texas National Guard) is indeed immune to federal control, but it is not a “state militia.” It is better understood as troops raised with the consent of Congress under Article I section 10 of the Constitution.”
Glenn is, of course, correct.
What the Supreme Court did is set up a possible armed confrontation between US forces and Texas forces. TX can put up wire and the Feds can take it down. Anyone see a problem here? John Roberts is the modern Roger Taney.