The Supreme Court’s Vacation of the Injunction and What it Means for Border Security

By CHHS Extern Andrew Conn

There are 29 entry points between the U.S. and Mexico along the 1200-mile-long border. Recently, the amount of illegal border crossings has grown exponentially. In 2020, Customs and Border Patrol (CBP) agents encountered 458,000 crossings. In 2021, this number rose to 1.7 million and in 2022 this number once again rose to 2.4 million.

On October 24, 2023, the state of Texas filed suit against the Department of Homeland Security for “unlawfully” removing concertina wire (c-wire) which had been placed along the Texas-Mexico border by agents of the Texas Military Department (TMD). Texas claims in its brief that the placement of c-wire on private and government property along the border was a joint-effort between federal CBP agents and TMD agents as part of Texas’ 2021 project “Operation Lone Star.” Texas claims that CBP agents were “grateful” for the assistance by TMD officials and the parties worked cooperatively across the state. However, Texas goes on to state that this relationship was upended when on “more than 20 occasions” between September 20 and October 10, 2023, CBP agents were recorded removing the c-wire fencing along the border with bolt cutters. CBP and DHS removed the fencing since it impeded their access to the border. CBP agents later began removing the fencing by utilizing forklifts.

During the removal process, TMD agents observed hundreds of migrants from Mexico’s side of the border pour over the border. TMD agents claimed these migrants were not in distress or in need of medical attention. Because of the subsequent flood of migrants into the state, Texas sought a preliminary injunction against the removal of c-wire and fencing by CBP agents in district court. The United States District Court for the Western District of Texas granted a temporary restraining order (TRO) against CBP agents to prevent them from further removing fencing in the vicinity of Eagle Pass, TX with an exception for “provid[ing] or obtain[ing] emergency medical aid.” The TRO was later extended by the district court; however, at trial, the court found it was unable to convert the TRO into a preliminary injunction since CBP’s sovereign immunity had not been waived under 5 U.S.C. § 702.

Texas subsequently appealed this decision to the Fifth Circuit in order to seek an emergency injunction. The Fifth Circuit granted the injunction, claiming that the district court erred in its ruling with respect to the grant of sovereign immunity. The defense moved for an expedited argument in circuit court which was granted. The oral arguments were to be heard on February 7th, 2024. In the interim, DHS sought expedited relief from the Supreme Court to vacate the injunction.
In its application to the Supreme Court, DHS argued that “under the Supremacy Clause, state law cannot be applied to restrain those federal agents from carrying out their federally authorized activities.” DHS stated that if the circuit court’s ruling was sustained, states would be able to override federal agencies and decisions on how to execute their operations.

In response, Texas claimed the CBP already had access to the other side of the border via access points along the fencing and since the Fifth Circuit had already expedited the case, the Supreme Court should hold off on any ruling against the injunction. Additionally, Texas cited a three-part test laid out in Merrill v. Milligan to determine whether an injunction should be vacated by a higher court. Texas argued that an injunction should be “entitled to great deference like a decision to stay a district court’s ruling.” In doing so, the test in Merrill states that an injunction can only be vacated when the applicant demonstrates (1) a reasonable probability that the court would eventually grant review, (2) a fair prospect that the Court would reverse, and (3) the applicant would likely suffer irreparable harm absent the stay.
Ultimately, on January, 22, 2024, the Supreme Court ruled in favor of the federal government in a surprising 5-4 split. The limited ruling struck down the injunction by the 5th Circuit ahead of oral arguments in the federal circuit court. Justices Jackson, Kagan, Sotomayor, Coney-Barrett, and Chief Justice Roberts voted in favor of overturning the injunction while Justices Thomas, Alito, Gorsuch, and Kavanaugh voted in favor of keeping the injunction in place.

What Could This Mean?
By overturning the injunction, it appears as if the Court may have an appetite to rule in favor of upholding the federal government’s sovereign immunity claim should the case reach the Court. This ruling is concerning, however, in the sense that four justices voted in favor of the injunction which could indicate a major blow to the supremacy clause. Allowing Texas to counter the acts of the Federal government would upend the supremacy clause as it would essentially allow state governments to override the lawful acts of federal agents. As the DHS states in its application to the Supreme Court, “if accepted, the court’s rationale would leave the United States at the mercy of States that could seek to force the federal government to conform the implementation of federal immigration law to varying state-law regimes.” Such a ruling would deal a blow to other federal agencies as well since this new precedent would allow the state government to override the federal government in terms of environmental, commerce, and transportation regulations. Oral arguments at the circuit court level will commence on February 7th, 2024.