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This case challenged the Biden Administration’s cessation of border wall construction.  It originally began as two separate cases and has had a long and complicated procedural history.

In July 2021, George P. Bush filed suit on behalf of the General Land Office of the State of Texas and himself, as its Commissioner.  Bush alleged that terminating border wall construction injures a farm that is tended by the Land Office, and that it violates various constitutional and statutory provisions. He sought an order permanently enjoining (blocking) the Administration from stopping border wall construction.

Three months later, the State of Texas, along with Missouri, filed a separate suit (in a different division of the Southern District of Texas) also challenging the end of border wall construction, and on largely the same legal grounds; it was assigned to Judge Tipton.  In November 2021, Judge Tipton transferred the Missouri case to Judge Alvarez, who was already presiding in Bush.  The two cases were then consolidated.  

Following consolidation, the parties completed briefing on Missouri and Texas’s motion for a preliminary injunction, which requested that Judge Alvarez order the Biden Administration to resume border wall construction while the case is pending; as well as on the Biden Administration’s motions to dismiss all claims of both the Bush and Missouri plaintiffs.

In February 2022, Judge Alvarez issued an order staying these consolidated cases until after the Supreme Court issued an opinion in the RMX case (which happened on June 30, 2022). Missouri and Texas appealed Judge Alvarez’s decision to stay the case, but that appeal was dismissed on July 29, 2022.

On August 3, 2022, Judge Alvarez issued a 61-page opinion that dismissed most of the claims in the Bush case and dismissed the Missouri case in its entirety (Missouri and Texas’s request for a preliminary injunction was denied as moot). Missouri and Texas appealed that decision. The remaining parties then engaged in several months of discovery (the process by which each side can ask the other for documents and testimony related to the case); discovery concluded in March 2023. 

On March 31, 2023, Judge Alvarez granted the parties’ joint request to stay (pause) this case to await a decision by the Fifth Circuit in Missouri and Texas’ appeal of Judge Alvarez’s decision to dismiss their claims. In June 2023, the Fifth Circuit reversed Judge Alvarez in that appeal, reviving Missouri and Texas’s claims. Following remand to the district court, Judge Alvarez sua sponte (i.e., on her own without a motion from a party) transferred the consolidated cases to Judge Tipton.

After the cases were transferred to Judge Tipton, the parties engaged in further briefing. On March 8, 2024, Judge Tipton granted the plaintiffs’ request to preliminarily enjoin (block) DHS’s plans to use money appropriated by Congress to repair existing walls, complete existing barrier systems, and to remediate and mitigate environmental damage caused by prior border wall construction. Judge Tipton held that the funds in question may only be used for “the construction of physical barriers, such as additional walls, fencing, buoys, etc.”

Judge Tipton stayed (paused) his March 8 preliminary injunction three separate times, through March 28, 2024, while the federal government sought clarification of what work the injunction does and does not prohibit. Judge Tipton held a status conference with the parties on March 28, 2024, during which he apparently provided clarifying “guidance” to the parties, but the docket does not indicate the substance of the guidance.

Approximately two weeks later, on April 10, the parties filed a joint motion requesting that Judge Tipton convert his preliminary injunction into a permanent one and enter final judgment for the plaintiffs (after which either or both sides could appeal to the Fifth Circuit). Judge Tipton granted that request and entered final judgment for the plaintiffs in both of the consolidated cases on May 29, 2024. 

Meanwhile, soon after the preliminary injunction issued, non-parties filed five different motions to intervene in the litigation (as defendants) so that they could seek an order from Judge Tipton that the injunction does not prohibit the federal government from spending the appropriated money in specific ways. Three motions were filed by contractors claiming to be owed millions for work performed under contracts awarded by the Trump Administration; another was filed is on behalf of an owner of ranch that allegedly suffered extensive environmental damage during Trump border construction that the federal government had agreed to remediate and mitigate; and the fifth was on behalf of Sierra Club and Southern Border Communities Coalition, who similarly settled a lawsuit against the federal government requiring it to mitigate environmental damage from Trump border construction. According to their motions, the federal government has taken the position that Judge Tipton’s injunction prohibits spending the appropriated money to pay the contractors or to address the environmental damage. Judge Tipton denied all five motions at the same time that he entered final judgment for plaintiffs.

It is not yet clear whether any party will appeal.

Technical summary

Bush’s amended complaint alleges that the Biden Administration’s actions regarding border wall construction violates: (1) the constitutional separation of powers; (2) the Appropriations Clause; (3) the Take Care Clause; (4) the Presentment Clause; (5) various budgetary statutes; (6)  statutory mandates in IIRIRA regarding the building of “physical barriers” to deter illegal border crossings; (7) the prohibition in the Administrative Procedure Act (APA) on arbitrary and capricious agency action; (8) the APA’s notice-and-comment requirement; and (9) the Regulatory Flexibility Act.  Bush did not seek preliminary injunctive relief.

Missouri and Texas’s complaint alleged violations of (1) the constitutional separation of powers; (2) the Take Care Clause (which requires the President to “take Care that the Laws be faithfully executed”); (3) the Impound Control Act of 1974; (4) the APA’s prohibition of arbitrary and capricious agency action; and (5) budgetary statutes.  

In the August 3, 2022 opinion, Judge Alvarez: dismissed all the Bush claims except numbers 7 and 8 (the two APA claims); dismissed Texas as a plaintiff for improper claim splitting, because the Bush plaintiffs already represent the Executive department of the State of Texas; and dismissed Missouri as a plaintiff for failure to sufficiently allege that it is injured by the challenged actions. 

In setting the case schedule, Judge Alvarez limited discovery to jurisdictional issues of standing and mootness. 

At a status conference in November 2023, Judge Tipton informed the parties that instead of deciding the motion for a preliminary injunction, he preferred to go straight to final judgment and decide the matter on a final rather than preliminary posture. He gave the parties a week to file any objection to that plan. Plaintiffs did object, and so Judge Tipton agreed to decide the motion for preliminary injunction.

In his preliminary injunction decision, Judge Tipton held that Texas had standing because it had allegedly proven that “additional physical barriers, if built, would result in fewer [undocumented immigrants] entering the country.” Judge Tipton’s preliminary injunction was based on his conclusion that the plaintiffs were likely to succeed in proving violations of the Consolidated Appropriations Acts of 2020 and 2021. In his opinion, Judge Tipton concluded that the arbitrary and capricious claims were unreviewable because the actions were committed to agency discretion by law and that the Impoundment Control Act claim is unreviewable because the states aren’t within that statute’s zone of interests. Judge Tipton did not reach the constitutional claims. 

When entering final judgment and a permanent injunction for plaintiffs, Judge Tipton denied (in a long footnote) the plaintiffs’ opposed request to additionally vacate the DHS spending plan.


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