A federal appeals court on Monday issued an order stopping the Border Patrol from cutting through Texas’s razor-wire border fence as the judges wait to hear more arguments on the issue.
Texas had sought the delay after a lower court judge ruled last week that the case was outside of the court’s purview right now, even though she also said the feds were “duplicitous” in cutting holes and waving thousands of migrants through.
In a brief notice, the 5th U.S. Circuit Court of Appeals said it was issuing a temporary “administrative stay” of that lower court ruling while the judges decide whether to issue a broader injunction. The judges asked for the government to file an initial brief in the case by the end of the week.
Texas has placed miles of concertina wire on private property along the border, particularly near Eagle Pass, which has been swamped with migrants wading across the Rio Grande and trying to enter illegally. The state says the fencing is an effort to discourage dangerous crossings and push migrants to use the official border crossings, where federal officers are available to process them.
The state says it understands the wire can be cut in true emergencies when lives are at risk in the river, but the state said it appears the Border Patrol is sometimes cutting the wire for the convenience of migrants who are entering illegally, paving an easier path into the U.S.
In one instance Border Patrol agents used a forklift to elevate the wire, creating a 20-minute hole and allowing more than 300 migrants to jump the border. None of them were in distress, Texas says. Another time, the feds smashed concertina wire to create an opening for migrants who, at that point, were still waiting on the Mexican side of the river.
Judge Alia Moses agreed with those claims but shot down Texas’ lawsuit on procedural grounds. She said the federal government enjoys sovereign immunity and no official policy or agency decision was being challenged, so there was no legal battleground for Texas to fight over.
She was devastating, however, in her critique of the Biden administration’s handling of the border.
“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?” the judge wondered. “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.”
Texas says the judge erred in ruling that the federal government enjoyed sovereign immunity in this area.
The 5th Circuit has generally been favorable to challenges to the Biden administration’s immigration policy, though a three-judge panel last week did rule in favor of the feds and against Texas over Gov. Greg Abbott’s floating border wall.
In a 2-1 ruling the judges said the buoys along a 1,000-foot section of the river near Eagle Pass violated a 19th-century law giving national agencies purview over “navigable” rivers.
Texas had argued the river was not navigable at that point — which is why migrants can wade across, and why the floating wall was effective.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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