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This is an appeal of a district court order dismissing Texas and Missouri’s challenge to the Biden Administration’s cessation of border wall construction.  The states allege that it violates the Constitution and budgetary statutes and did not go through required procedures.  In August 2022, the district court dismissed the states’ claims, holding that Missouri does not have standing and that Texas cannot maintain this suit because the state is already challenging the same policies in a separate suit (brought by George P. Bush as the Commissioner of the General Land Office of the State of Texas). The States then appealed.

On June 16, 2023, the panel issued a decision reversing the district court. The panel also instructed the district court to decide Texas’s motion for a preliminary injunction (which had been pending when Texas and Missouri’s claims were dismissed) “expeditiously.” The panel also directed that all future appeals in this case come be directed to this same three-judge panel.

Technical Summary

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 early August, Judge Southwick granted the States’ unopposed motion to expedite the appeal.

In the opinion, the majority (Jones and Smith) held that Texas had not split its claims because the Commissioner of the General Land Office is not in privity with the State. Dissenting in part, Judge Graves disagreed. Concurring in part, Judge Graves wrote that he would have held that Missouri sufficiently pled its standing (an issue the majority did not reach).


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