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This case challenges the Biden Administration’s cessation of border wall construction.  It originally began as two separate cases.

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. T

The parties are currently filing supplemental briefs regarding the Plaintiffs’ request for a preliminary injunction; that briefing will be complete on October 31, 2023. Note that in early October 2023, the Biden Administration announced that it was clearing the way for additional border wall construction.

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.


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