Just about a month ago, border security proponents cheered as a federal judge issued a temporary restraining order that largely blocked the Biden administration's U.S. Border Patrol from indiscriminately cutting or removing razor-sharp concertina wire barriers placed along the border with Mexico by the state of Texas.
Unfortunately, that same judge just seemingly reversed herself and denied a request from Texas to turn the TRO into a preliminary injunction barring such activity from the federal government while the lawsuit remains pending, according to Breitbart.
Instead, while otherwise appearing largely sympathetic to most of the arguments put forward by Texas, the judge concluded that "insufficient evidence" had been provided thus far in support of a particular claim for relief made by Texas under the Administrative Procedures Act.
In 2021, and in response to the Biden administration's lax enforcement of border security and immigration laws, the state of Texas under Gov. Greg Abbott launched Operation Lone Star which involved state-led efforts to enforce border security, including the placement of concertina wire in key locations along the Rio Grande River that separates the U.S. from Mexico.
However, reportedly on a near-daily basis, U.S. Border Patrol agents, presumably directed by their superiors, routinely cut and/or removed portions of the wire barriers to allow migrants to illegally enter the U.S., ostensibly so that they could be processed and potentially removed from the country.
That led to Texas filing its lawsuit and, on Oct. 30, District Judge Alia Moses' granting of a temporary restraining order that forbade federal agents from cutting or removing the wire barriers except during certain "exigent circumstances" such as migrants in need of medical attention or rescue.
Roughly a week later, Judge Moses held a hearing on Nov. 7 and received testimony from both sides as well as additional briefs and documents related to the matter at hand, all of which were reportedly taken into consideration as she weighed the request from Texas to solidify the TRO into a preliminary injunction while the case continued on the merits.
Yet, on Nov. 29, the judge issued a 34-page opinion and order that denied the request for a preliminary injunction and wrote, "Here, based on the evidence presented at the November 7, 2023 hearing and the documents submitted thereafter, the Court finds that there is insufficient evidence at this juncture to support a substantial likelihood of success" on the claim from Texas that what the federal agents were doing constituted a "final agency action" under the APA.
Nor was Texas able to establish evidence of a formal "policy, practice, or pattern" within the Biden administration, though she left open the possibility that both claims could later be supported as the case proceeds on the merits, given the potential that "Discovery may produce information that sheds new light on the nature of the directives to cut or otherwise interfere with the Plaintiff’s concertina wire."
Furthermore, Judge Moses repeatedly chastised the Biden administration's handling of this particular situation and lack of sufficient border security enforcement more generally throughout her opinion and even stated that, aside from the unproven APA claims, virtually all other factors favored Texas.
She caustically wrote at one point, "The law may be on the side of the Defendants and compel a resolution in their favor today, but it does not excuse their culpable and duplicitous conduct."
Unsurprisingly, Texas Attorney General Ken Paxton was quite displeased at the ruling from Judge Moses and vowed in a press release to appeal to the 5th Circuit the matter of the denied injunction that allows the Biden administration to continue cutting and removing sections of the wire border barrier.
"I am disappointed that the federal government’s blatant and disturbing efforts to subvert law and order at our State’s border with Mexico will be allowed to continue," Paxton said. "Biden’s doctrine of open borders at any cost threatens the safety of our citizens, and we will continue to fight it every step of the way."
To be sure, this ruling is a disappointing setback for Texas and its efforts to fill the gaping void left by the Biden administration in terms of securing the nation's southern border, but there is a not insignificant possibility that the appeals court could overrule the district court and impose the requested injunction or that Texas could ultimately win the case on the merits in the long run.
