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In this case, the States of Missouri and Texas challenged the Biden Administration’s cessation of border wall construction, alleging that it violates the Constitution and budgetary statutes and did not go through required procedures. After filing suit, Missouri and Texas asked the district court to issue an order preliminarily enjoining (blocking) the Biden Administration’s decision to end border wall construction while the rest of the case proceeds to final judgment.  In February 2022, the district court informed the parties that it would be waiting to rule on Missouri and Texas’s motion for a preliminary injunction until after the Supreme Court issues an opinion in Texas’s “Remain in Mexico” (RMX) case, because that opinion is likely to resolve at least some legal issues also present in this case.  Missouri and Texas appealed the district court’s order staying the case, asserting that it is the functional equivalent of a denial of their motion for a preliminary injunction.  

On March 16, 2022, Missouri and Texas filed a motion requesting that the the Fifth Circuit preliminarily enjoin the cessation of border wall construction while this appeal proceeds.  On April 13, 2022, Judge Engelhardt deferred a ruling on that motion to the 3-judge panel to be assigned the merits of the appeal; he also ordered that the briefing on the merits be expedited. 

Per the expedited schedule, briefing concluded on May 4, and oral argument took place on May 11, 2022 in New Orleans. On July 12, 2022, the Biden Administration filed a motion to dismiss Missouri’s appeal as moot; the Fifth Circuit issued a short opinion granting that motion (and dismissing the appeal) on July 29, 2022

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 their motion for a preliminary injunction before the district court, Missouri and Texas argued they were likely to succeed on all of their claims.  

Missouri and Texas’s motion for an injunction pending appeal argued only that they are likely to prevail on their arbitrary and capricious claim, and did not mention the other claims.

At the district court, Missouri and Texas’s case was consolidated with Bush v. Biden, an earlier-filed case raising the same issues that was brought by George P. Bush on behalf of the General Land Office of the State of Texas and himself, as its Commissioner.

The Fifth Circuit’s decision granting the motion to dismiss was an unpublished per curiam.  It reasoned that since the district court’s stay had by its own terms expired, the appeal from that stay was now moot.  The panel also ordered the mandate to issue immediately.


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