Why Hasn’t DHS Started Cutting Razor Wire in Texas?

Texas TROs Explained (Yes, There Were Two TROs)

The State of Texas placed razor wire at specific areas along the border with Mexico in Eagle Pass to deter illegal aliens from crossing at certain points.  DHS then cut the razor wire. Texas then filed suit against DHS in the Western District of Texas to prevent DHS from cutting the razor wire. 

The federal judge hearing the case, Chief US District Court Judge Alia Moses, issued the first Temporary Restraining Order (TRO) that DHS could not forcibly remove or cut the razor wire. Following a hearing with both Texas and DHS, the judge did lift the TRO and entered a preliminary injunction order deciding that DHS was again allowed to cut the razor wire.

Texas then appealed the preliminary injunction order to the 5th Circuit Court of Appeals and asked for injunctive relief from the district court decision, so that DHS could not cut or remove the razor wire until the suit was decided by the 5th Circuit.

Circuit courts have a process to split cases into two parts if one party asks for some type of stay or injunctive relief while the merits of the case (the district court’s decision) is on appeal. Two panels were assigned - one  to hear the merits of the basic case itself and the second to hear the TRO request, separately. 

On December 19, 2023, the one panel decided to effectively pause the district court order, or issue their own TRO, to stop DHS from cutting the razor wire, but that TRO was only to be effective as long as the second panel was deciding the merits of the case. 

The second panel will decide the merits of the case itself, which is whether the decision of the district court judge was correct in its findings in its preliminary order that DHS can remove the razor wire installed by the state. The second panel hearings for both parties is set for oral arguments on February 7, 2024. 

While the parties are waiting to argue the legal merits of the district court’s preliminary injunction order, DHS filed an appeal with the U.S. Supreme Court challenging only the 5th Circuit’s order on the TRO. That’s what the Supreme Court vacated (stopped, ended, lifted) a few days ago, the TRO issued by the 5th Circuit. That means that DHS can start removing or cutting razor wire installed by Texas.

But DHS has not started removing or cutting the razor wire installed by Texas. One reason may be that DHS does not want to upset the 5th Circuit by making a move the circuit may ultimately decide against based on the February 7th hearing results. The response by Texas has been just the opposite, they started installing more razor wire and barriers since there is nothing stopping them.

None of the courts have ever entered an order that says the state has to remove the wire fence.  None of the courts have ever entered an order preventing the state from installing a wire fence. The only orders entered were about whether DHS can cut the wire to “enforce the immigration law.”

If the 5th Circuit upholds the district court’s preliminary injunction order, the case will still go back to the district court to have a final trial in the case. Texas could still have a chance to win at that level.  

While Biden is considering activating the Texas National Guard to federal service, there are more states with GOP governors that are pledging their National Guard troops to assist Texas. And CBP has already advised that Border Patrol will not be attempting to force the National Guard or Texas State Troopers, stating that “the relationship between Border Patrol, Texas DPS, and the Texas Military Department remains strong. The bottom line is that Border Patrol has no plans to remove infrastructure placed by Texas along the border. Our posture remains the same."

While Biden’s own federal officials have called his bluff, it is unclear if he will try to act with force against state peace officers and military troops performing their duties. But, never underestimate the perfidity of the current resident in the White House.