By: Priscilla Lugo & Kristin Etter
On June 6, 2024, the Fifth Circuit heard arguments regarding the concertina wire case that originated when the State of Texas sued the federal government to prevent Customs and Border Protection (CBP) from being able to cut concertina wire that Texas installed along the border in Shelby Park in Eagle Pass, Texas The case is State of Texas v. DHS, 5th Cir., No. 23-50869, Oral argument 6/6/24, and the oral argument can be listened to here.
We share a summary of the arguments presented by the State of Texas and the Department of Homeland Security.
Representing the State of Texas is Aaron Nielson, Solicitor General
Mr. Nielson argues that the injunctive relief that was granted to the state 6 months ago was correct, and that Chief Judge Moses found that there was “culpable and duplicitous conduct by lawlessly destroying Texas’s property”. He specifically mentions that even when there was no emergency, federal law enforcement cut the fence to enable illegal border crossing instead of deterring border crossings. As such, the Chief Judge found that the destruction of the property is inequitable and enables drug, weapon, and human smuggling.
The State of Texas also claims that the fence prevents crossings in dangerous areas and the defense’s position (DHS), endangers people’s lives. Mr. Nielson claims that the events that occurred in January—namely the drowning of 2 children and their mother in the Rio Grande- are not relevant to the appeal because in January the Supreme Court did not know if 1) CBP still had access to the border and 2) if Texas was honoring the injunction to allow for emergency medical aid.
At which point, questions began. Mr. Nielson was asked if CBP has access to the river road within Shelby Park and the golf course areas. Mr. Nielson responds that Texas is not questioning if CBP can access “their park”, but rather if they have the authority to cut their fence. He made it clear that if CBP wants access to the park, they can sue to get access, or they would have to call and notify the battle desk to get approval in case of emergencies.
Regarding intergovernmental immunity, Mr. Nielson states that the way the U.S. has litigated the case is not as a preemption case, which matters because in U.S. v. Washington the court set a two-part test for intergovernmental immunity 1) is this discriminating against the United States? And 2) are they attempting to regulate the United States. He claims that if they go back to memorial rights, property rights are not regulatory—if not every rancher that requests for their fence not to be cut would be regulating the United States.
The judge asked what is the best case or statutory authority that CBP has discretion to turn away those who enter unlawfully. Mr. Nielson responds that President Biden’s Executive Order contradicts the position given to the Fifth Circuit because in this case, they are arguing that stepping foot on U.S. land entitles them to asylum process and that is inconsistent with the Executive Order.
Representing the Department of Homeland Security, Melisa Patterson, Assistant to the Solicitor General
Ms. Patterson argued that Texas is seeking an injunction to force the federal government to confirm to state tort law and that there are multiple independent legal barriers like 1) sovereign immunity, 2) Texas being unable to satisfy separate inquiry that pass sovereign immunity if they want to hold the federal government to underlying laws and 3) 8 UC 12 F1 which bars type of restraint on operation that in the federal view are necessary to carry out their statutory authority in 1225 and 1226.
At which point, questions begin, and Ms. Patterson is asked if the motions panel and Fifth Circuit panel cannot rely on any facts that occurred after the original District Judge’s decision denying the preliminary injunction. She concurs that the courts were considering 1651 authority and interim relief. She claims that according to the jurisdiction in 28 USC 1292 and interlocking appeal the usual rule is that the record is closed.
This line of questioning and clarification of what should be considered continues and Ms. Patterson is asked if the Supreme Court vacated the temporary relief, presumably with respect to the January drownings, but the Fifth Circuit cannot consider them now? She answers that this is the natural result when there are different jurisdictions of the court when reviewing interlocking appeals. If Texas had come back to the Fifth Circuit and asked to issue interim relief then they could look at all the facts, but Texas has not suggested that the Fifth Circuit should not entertain relief while the court entertains or remains the motion for a new preliminary injunction.
The next question is if the federal government is blocked from the boating ramp in Shelby Park. Ms. Patterson answers that the boating ramp is not currently blocked because Texas has restored access, but the federal government is blocked from patrolling the land, and that the District Court even found that the federal government remains partially blind due to Texas forcing CBP out of the area. Ms. Patterson provides the example that CBP no longer has scope trucks in the area and therefore doesn’t have eyes on that stretch of land. The District Court also found that due to the lack of warning, DHS was blinded. Although CBP has been able to regain some camera vision, they remain partially blinded, and the District Court could not conclude the degree to which the federal government was blinded.
Regarding the merits, Ms. Patterson argues that with sovereign immunity, all cases that the motions panel cited were all waivers of sovereign immunity in 702 and were extended to the federal causes of action. She argues that it is a distinct question if 702 was intended to waive sovereign immunity to state law claims and that no court has issued an injunction based on that reading. She continues that the final sentence in 702 is “when statute that waives to suit but precludes the relief of suit that 702 general does not apply.”
She argues that the Supreme Court found that the use of 702’s general waiver of sovereign immunity and run around Congress’s choices in type of grievance because Congress has already decided the issue on when states can be sued under state tort law. On Texas’ theory no limitation can apply because the limits on monetary damages do not apply, nor does it apply to the discretionary function; and if Texas wins it would be destructive to Congress’s choice regarding state tort law.
Regarding the turn back authority that the Texas Solicitor General argues was in conflict with DHS’s position due to the new Executive Order, Ms. Patterson says that there is no turn back authority and clarifies that once someone enters the U.S. and is present regardless of unlawful entry, under 8 USC 1158 the individual has the right to apply for asylum. Ms. Patterson clarifies that the Executive Order does not change the right of an individual to seek asylum. The Executive Order only changes eligibility. making it harder for an individual to qualify for asylum.
The Judge asks if there are hard categorical cut offs for asylum to which Ms. Patterson responds that asylum seekers can still argue eligibility for asylum and that CBP agents cannot “force back” people who have entered because no “turn back authority” exists. Ms. Patterson explains that the district court’s findings that CBP was not acting pursuant to federal law because they were allowing migrants to enter was based on a “fundamental understanding” of current law which does not allow federal agents to arbitrarily “turn back” migrants to Mexico once they are on U.S. soil. She also argues that there is a legal error that implied that CBP was allowing migrants further inland and was not processing them. Due to processing times, often for same-day records apprehensions and processing numbers might not align, but it is not because they aren’t being processed into the country, but rather will be finished process on a different day.
Ms. Patterson also made clear that in terms of access to the park, the District Court made a finding that the CBP agents are not allowed by Texas officials access to the land except for the boat ramp in Shelby Park. Therefore, CBP is not allowed to enter the land to determine if someone needs to be apprehended or to assist if someone is facing a medical emergency. As a result, the State is preventing the CBP from patrolling the border in the park and can only access the boat ramp.
Solicitor General Aaron Nielson on Rebuttal
On rebuttal, Mr. Nielson argued that the idea that the Supreme Court can consider new facts, but the Fifth Circuit must decide based on only the original facts while using the Supreme Court to guide the decision is not right. He states that the Chief Judge found that the federal government is derelict in their duties, and that they haven’t argued against that analysis in the motion panel’s decision.
As for the “blindness”, he cites that there are two ports of entry within view of the park and that officers can simply “look down and see from the port of entry”. Finally, regarding the turn back policy, he cites a September 20th incident where there are migrants in the river, still on the Mexican side and there is a boat of federal agents watching and not ordering them to turn back.
Ultimately, although this litigation is centered around the precise issue of whether border patrol can cut the concertina wire, the implication of this case is about the larger legal fight of how far a state can go to create and enforce their own independent immigration system to supplant the federal immigration system altogether. As a result, if Texas is permitted to unilaterally patrol the border and supplant the federal immigration system with its own, it poses a much bigger risk to our Nation’s foundational federalism principles beyond immigration policy.
