US cannot destroy Texas razor-wire migrant barrier, appeals court says
A divided U.S. appeals court blocked the Biden administration from destroying razor-wire fencing that Texas placed along its border with Mexico to deter illegal migration. The 2-1 decision by the 5th U.S. Circuit Court of Appeals clears the way for Republican-led Texas to pursue a lawsuit accusing the federal government of trespassing without having to remove the fencing.
It also reversed a federal judge’s Nov. 2023 refusal to grant a preliminary injunction to Texas, as the state resists federal efforts to remove fencing along the Rio Grande in the vicinity of Eagle Pass, Texas.
Circuit Judge Kyle Duncan, an appointee of President-elect Donald Trump, wrote for Wednesday’s majority that Texas was trying only to safeguard its own property, not “regulate” U.S. Border Patrol, and was likely to succeed on its trespass claims.
Duncan said the federal government waived its sovereign immunity, and rejected its concerns that a ruling for Texas would impede the enforcement of immigration law and undermine the government’s relationship with Mexico.
He also said the public interest “supports clear protections for property rights from government intrusion and control,” and ensuring that federal immigration law enforcement does not “unnecessarily intrude into the rights of countless property owners.”
The U.S. Department of Justice did not immediately respond to a request for comment.
“Huge win for Texas,” the state’s Republican Attorney General Ken Paxton posted on social media platform X.
‘Virtual power of review’
Duncan was joined in his opinion by Circuit Judge Don Willett, also a Trump appointee.
Circuit Judge Irma Carrillo Ramirez, an appointee of President Joe Biden, dissented, saying Texas had not shown that the federal government waived sovereign immunity or would likely prevail on the merits.
She said Texas claimed a “virtual power of review” over federal efforts to enforce immigration law, which would frustrate the government’s ability to ensure faithful execution of federal law.
Many Republicans have blamed Biden for an increase in the number of migrants illegally crossing the U.S.-Mexico border.
The White House has been locked in legal battles with Texas and other states that have tried to deter and punish illegal migration. Trump’s administration is likely to be more receptive to such concerns.
In May, the full 5th Circuit heard arguments in a separate case between Texas and the White House over whether the state can keep a 1,000-foot-long floating barrier in the Rio Grande. The appeals court is also reviewing a judge’s order blocking a Texas law that would let state officials arrest, prosecute and order the removal of people in the country illegally. Based in New Orleans, the 5th Circuit is widely considered among the most conservative federal appeals courts.
Separately, the Biden administration has sued Iowa and Oklahoma for passing similar laws, which it says interfere with federal enforcement of U.S. immigration laws.
