Bush v. Biden (TX Border Wall) - District Court

This case challenges the Biden Administration’s cessation of border wall construction.  It originally began as two separate cases and has had a 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 says 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 seeks 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.  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 issues 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 a several month period 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 case was transferred to Judge Tipton, the parties filed supplemental briefs regarding the Plaintiffs’ request for a preliminary injunction; that briefing completed on December 19, 2023. Three months later, 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). Briefing on whether Judge Tipton should additionally vacate the (nullify) the challenged DHS spending plan is ongoing, and should conclude by the end of April 2024. 

Meanwhile, soon after the preliminary injunction issued, non-parties filed five different motions to intervene in the litigation (as defendants) so that they can seek an order from Judge Tipton that the injunction does not prohibit the federal government from spending the appropriated money in specific ways. Contractors who claim they are owed millions for work performed under contracts awarded by the Trump Administration have filed three motions to intervene; a fourth intervention motion is on behalf of an owner of ranch that allegedly suffered extensive environmental damage during Trump border construction that the federal government had allegedly agreed to remediate and mitigate; and the fifth is 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. Briefing on the motions is ongoing.