Texas installed concertina wire in the vicinity of Eagle Pass to prevent illegal immigrants from crossing the border into the state. Governor Abbot is of course trying to make up for President Biden’s opening of our southern border and refusal to enforce the immigration laws. Biden’s undoing of our border is an act of willful destruction. In addition to everything else, it seriously jeopardizes our national security. Everyone knows who is to blame. DHS wants to cut down the concertina wire because Biden wants to keep that border open.

Texas federal district judge Alia Moses denied Texas’s request for a preliminary injunction to prevent destruction of the concertina wire. Her opinion is posted here and accessible via this page maintained by the Texas Legislative Reference Library.

Texas appealed the denial of the preliminary injunction to the Fifth Circuit. A panel of three Fifth Circuit judges reversed in an illustrated 14-page opinion by Judge Stuart Kyle Duncan that is posted here (photos are relegated to the opinion’s appendix at pages 15-19).

My law school teacher Leo Raskind used to ask us what all the shooting was about in a given case. The Fifth Circuit’s 14-page opinion makes clear what the shooting is about in this case.

Yesterday the Supreme Court summarily vacated the Fifth Circuit order, with Justices Thomas, Alito, Gorsuch, and Kavanaugh dissenting. Both the order and the dissent are for reasons unstated, but see the Fifth Circuit opinion linked above for the rationale of the dissenters. It’s a good opinion. The dissenters must agree with it.

Injunctions (and especially preliminary injunctions) rest on a balancing act that is largely within the discretion of the district court. Although ultimately ruling against Texas on the request for a preliminary injunction, the district court judge found merit in some of Texas’s claims. Texas then appealed Judge Moses’s denial of the injunction to the Fifth Circuit. The Fifth Circuit granted the preliminary injunction pending appeal.

Although the Supreme Court has vacated the the Fifth Circuit’s order granting the preliminary injunction pending appeal, a hearing on Texas’s appeal before the Fifth Circuit is still to be held on February 7. I should think the Supreme Court order puts a damper on Texas’s prospects in the Fifth Circuit.

Texas Attorney General Ken Paxton has issued a statement on the Supreme Court order here. Paxton mentions the hearing, though he does not much address the merits of the issues to be aired or the possible impact of yesterday’s Supreme Court order. However, Texas has raised some novel (to me) and difficult (to me) issues in this case.

The Supreme Court generally recognizes the federal government’s exclusive constitutional authority to control immigration. What happens when the federal government would prefer not to? I don’t think the Supreme Court has directly addressed that particular issue, but I’m guessing the five justices think the answer is political rather than judicial.