Rather than upping the rhetorical ante in the dispute over the removal of Texas’s concertina wire in the Rio Grande by US Homeland Security agents, Gov. Abbott of Texas should simply distribute the text of Federal District Chief Judge Alia Moses’ devastating written decision. While finding for the Department of Homeland Security (DHS) on narrow technical grounds regarding a preliminary legal issue, a decision the Supreme Court upheld, Judge Moses concludes her decision with the bitter observation that “the law may be on the side of the [Department of Homeland Security] and compel a resolution in their favor today, but it does not excuse their culpable and duplicitous conduct.”

Judge Moses’ decision may be a legal victory for DHS over the state of Texas on the narrow issue of the preliminary injunction, but as Pyrrhus said after a costly victory over Roman forces, “Another such victory and we are undone!”

The opinion provides a devastating indictment of the actions of DHS agents in the Eagle Pass region of Texas: Not only does Moses conclude that DHS agents are not effectively securing the border against illegal entry from Mexico into the US, she writes that the evidence shows some DHS agents in the region are acting in ways seemingly calculated to circumvent the very laws they are supposed to be enforcing.

More broadly, in its arguments seeking to justify its agents’ actions creating holes in or removing sections of the concertina wire—“c-wire”—that Texas laid to stem illegal border crossing, DHS does not argue that Texas’s actions overreach the state’s authority and impinge on national authority. That is, DHS does not argue that its constitutional or statutory authority broadly preempts Texas’s actions in laying the wire. Rather, in arguments rejected by Judge Moses, DHS claims only that Border Patrol agents had statutory authority to remove limited parts of Texas’s barrier to allow DHS agents to achieve specific and limited statutorily-granted purposes. (And, even then, DHS Border Patrol acted excessively in the Eagle Pass area according to Moses.)

The legal dispute between DHS and Texas has a number of moving parts that have been lost in the hyperbolic public discussion that has ensued. Let’s break down some of these parts.

A Narrow Win for DHS

The Supreme Court win of DHS over Texas reinstates District Court Judge Moses’ original decision denying Texas’s request for a “preliminary injunction” pending a trial on the merits of the state’s claim. (More on the exceptional nature of a preliminary injunction below.) Her decision was overturned on appeal by the Fifth Circuit Court of Appeals. The appellate decision was then in turn overturned by the US Supreme Court.

In summer, 2023, Texas began placing c-wire in different parts of the Rio Grande River to prevent illegal border crossing. US Border Patrol Agents subsequently began cutting the c-wire, in particular c-wire set up on the border between Mexico and the US around Eagle Pass, Texas. Doing so allowed illegal border crossings at points that the c-wire had prevented. In response, Texas filed suit in Federal District Court asking the court to halt the Border Patrol’s cutting of its c-wire (except for reasons limited to those necessary to allow the Border Patrol to respond to medical emergencies). Texas additionally requested a preliminary injunction to prevent DHS from continuing to cut or remove Texas c-wire before the trial on the merits could be held to determine the legality of the DHS agents’ actions.

Importantly, all of the subsequent appellate judicial action after this, from the Federal District Court, through the Fifth Circuit Court of Appeals, to the US Supreme Court, concerns only Texas’s request for the preliminary injunction. As Judge Moses notes in her decision, “A preliminary injunction is an ‘extraordinary and drastic remedy.’” In her decision denying Texas’s request, Judge Moses nonetheless agreed that Texas had met the four basic requirements to issue a preliminary injunction. That is, she held that Texas demonstrated,

i. “a substantial likelihood of success on the merits of the underlying action” (which would require DHS to compensate Texas for its destruction of Texas property and/or prevent DHS from cutting Texas c-wire except under limited conditions);

ii. “substantial injury to the moving party if the injunction is not granted”;

iii. “that the injury outweighs any harm that will result if the injunction is granted”;

iv. “that granting the injunction will not disserve the public interest.”

So why did Judge Moses rule against Texas’s request for a preliminary injunction? This is where things become a bit eye-glazing.

To understand the next step, we need to keep in mind that both state and federal governments enjoy “sovereign immunity,” meaning that governments cannot be sued except by their own consent. This consent is given by governments through statutes enacted by their legislatures. So Congress can statutorily waive sovereign immunity for the US government. It is a matter of interpreting specific statutes, however, to determine whether Congress has waived sovereign immunity for specific legal claims filed against the US.

While Judge Moses concluded that the US government had statutorily waived its sovereign immunity for suits seeking monetary compensation in cases such as the one Texas brought against DHS, she concluded that the statutory waiver of sovereign immunity did not “unequivocally” include “Congress’s consent to all non-monetary actions arising out of the [Administrative Procedures Act]” (emphasis added). And, unlike the lawsuit itself (which could result in monetary damages) the preliminary injunction as Texas had requested was, necessarily, just such a request for a “non-monetary” action. Judge Moses also noted that sovereign immunity is waived only with respect to “final agency action” (emphasis added) and it was unclear that the border agents’ actions around Eagle Pass represented a “final agency action” by DHS.

States and the national government share concurrent authority over their shared-borders unless the national government enacts legislation that preempts state border controls.

As a result, Judge Moses denied Texas’s motion for a preliminary injunction.

Reviewing only the question of the preliminary injunction, the Fifth Circuit Court of Appeals held that Judge Moses “legally erred with respect to sovereign immunity.” So the Fifth Circuit Court granted Texas’s request for a preliminary injunction to stop DHS from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas” prior to the trial.

The US Supreme Court decision also reviewed only the question of the preliminary injunction and reversed the Fifth Circuit’s decision. This decision re-instated Judge Moses’ original decision which, again, only denied Texas its request for a preliminary injunction.

For all the judicial activity, none of the decisions deny Texas’s underlying claims. In fact, as noted above, Judge Moses concluded that Texas is likely to win on the merits of its case.

Now to turn to the broader issue in the case, whether Texas is usurping national authority over border control by laying c-wire along parts of the state border with Mexico and the behavior of Border Patrol agents in the Eagle Pass region of Texas.

What the DHS Does Not Argue

While some parties on both sides of the dispute over Border Patrol agents cutting Texas’s c-wire around Eagle Pass suggest it raises constitutional issues of state versus national power over border control, the case, in fact, raises no such question. DHS has not asserted that it has the authority to cut or remove Texas’s c-wire because Texas actions are broadly preempted by national constitutional or statutory authority. In asserting its limited authority to cut Texas’s c-wire at specific points, it implicitly concedes that Texas’s actions laying the c-wire in the Rio Grande is a result of shared state and national authority over the border.

It bears noting that it is surely the case that if the US national government wanted to preempt Texas’s action it could do so. But doing so would require additional legislation. (Legislation that the current Congress is unlikely to approve.)

Border control is not like the dormant Commerce Clause, in which national authority has been held to be exclusive, and so states are forbidden from regulating interstate commerce irrespective of whether Congress has passed any law actually regulating the same interstate activity as the state.

Rather, states and the national government share concurrent authority over their shared borders unless the national government enacts legislation that preempts state border controls. Even the Supreme Court majority in the 2012 preemption case of Arizona v. United States fully recognizes shared state and national authority over the border in the absence of congressional legislation preempting specific types of concurrent state regulations of illegal immigration.

In the case of Texas’s c-wire around Eagle Pass, DHS asserted only that it had authority to cut or remove the c-wire for two statutorily limited reasons. Judge Moses summarized these as “(1) to discharge their statutory obligation to inspect, apprehend, and detain individuals entering the United States; and (2) to prevent or address medical emergencies.”

Judge Moses is withering in her rejection of both of the proffered DHS justifications for cutting or removing Texas’s c-wire.

Moses begins with a recitation of the Border Patrol’s “principal statutory objective … to deter illegal entry into the United States.” She notes the manifest difficulty that the Border Patrol has had doing so: “Border Patrol encounters with migrants illegally entering the country” increased from a “paltry 458,000 in 2020, to 1.7 million in 2021 and 2.4 million in 2022.” The number in 2023, she notes, is expected to meet or exceed the number in 2022.

This is an increase of over 500 percent in “encounters” over a three-year period.

Judge Moses notes that Texas’s c-wire efforts have proven “effective” at decreasing illegal border crossing. The number of illegal border crossings decreased by over two-thirds in other border areas in which Texas laid its c-wire. In these other areas, she notes, “Border Patrol is grateful for the assistance of Texas law enforcement, and the evidence shows the parties work cooperatively across the state.”

She adds, however, “The Eagle Pass area … is another matter.”

Border Patrol’s Culpability

In Eagle Pass, the evidence Judge Moses rehearses suggests not only that the Border Patrol in that area is not attempting to deter illegal entry into the US, it is actually facilitating illegal entries. She seems aghast at what the evidence shows. She summarizes one piece of video evidence submitted before her court:

In the video, Border Patrol agents are cutting a hole in the wire to allow a group of migrants to climb up from the riverbank. However, another hole already exists in the wire, less than 15 feet away, through which migrants can be seen passing. After completing the second hole and installing a climbing rope for migrants, agents then proceed to further damage the wire in that area and cut a third hole further down. Meanwhile, in the background, a Border Patrol boat can be seen situated in the middle of the river, passively observing a stream of migrants as they make the hazardous journey from Mexico, across the river, and then up the bank on the American side. At no point are the migrants interviewed, questioned as to citizenship, or in any way hindered in their progress into the United States.

Border Patrol agents can be seen cutting multiple holes in the concertina wire for no apparent purpose other than to allow migrants easier entrance further inland. Any rational observer could not help but wonder why the Defendants do not just allow migrants to access the country at a port of entry. If agents are going to allow migrants to enter the country, and indeed facilitate their doing so, why make them undertake the dangerous task of crossing the river? Would it not be easier, and safer, to receive them at a port of entry? In short, the very emergencies the Defendants assert make it necessary to cut the wire are of their own creation.

Moses adds that “making matters worse are the cynical arguments of the Defendants in this case” in which Border Patrol agents claim that the illegal immigrants are “in custody” despite the fact that “no Border Patrol agent can be seen making any sort of effort to physically restrain them.”

After reviewing the evidence, Moses’ conclusion all but beggars-the-imagination:

The Defendants cannot justify their wire-cutting based on purported “apprehension” and “detention” of migrants after they cross through the fence in the face of testimony of both parties strongly suggesting neither occurs without migrants’ willing cooperation. … By ignoring the blatant criminal context of where, when, and how these “applicants for admission” enter the United States, the Defendants apparently seek to establish an unofficial and unlawful port of entry stretching from wherever they open a hole through the Plaintiff’s fence to the makeshift processing center they established on private land a mile or more away. The Defendants even appear to seek gates in the Plaintiff’s fence that the Defendants can control to facilitate this initiative.

Moses makes similar hash out of the Border Patrol’s claim that it needed to remove or make holes in Texas’s c-fence in order to respond to medical emergencies. She notes that Texas never objected to actions necessary to respond to medical emergencies, but that the changes made in the c-fence by the Border Patrol were more numerous and longer-lasting than necessary to respond to any actual emergencies.

While Judge Moses decided in favor of DHS on the technical legal ground that Congress had not waived sovereign immunity to allow for the preliminary injunction Texas requested, the bulk of her decision is a sweeping and devastating indictment of Border Patrol activity in the Eagle Pass area. It is cold comfort that Moses finds no “final agency action” in the behavior of the Border Patrol in that area. If the Border Patrol behavior in the Eagle Pass area does not represent official agency action, then it represents a stunning inability of a powerful Federal agency to control rogue behavior by its agents; behavior that manifestly flies in the face of that agency’s charter for existence.