The Supreme Court Says No, Greg Abbott Cannot Just Do Whatever He Wants to Keep People Out of Texas

Very light details from the court on this.

The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.

I would be cautious to read any deeper than that. The issue for the injunction wasn't "does Texas have a right to protect their border?" The lower court had sided with Texas that the US had waived its sovereign immunity from state tort claims seeking injunctive relief, via the Administrative Procedure Act (APA).

Quick primer for those not knowing. A bill is a purposed thing in Congress, if both chambers approve it and the President signs it, it becomes law. These laws can be something like "The Department of Transportation shall build a highway that connects Wapakoneta, OH to Indianapolis, IN" The Department of Transportation is then allowed to build a road and they have to publish all kinds of rules about how they're going about building it (because remember the law only says build a road, not where to build it, out what material, etc...). We call this regulation. Regulation is NOT law (as Congress+President can only do that) but can carry the weight of it.

The APA is a law that sets up a procedure for regulation. Texas had argued that the Biden Administration did not check off all of the boxes required by the APA to remove the razor wire fence that Texas had erected. The Administration had indicated that, Texas was the one violating all kinds of Federal stuff, there isn't a need to check the specific boxes that Texas indicated in Court because Texas is the one who started this whole mess. The Fifth Circuit agreed with Texas that "Hey look, I get it, Texas is being a weak ass bitch. BUT, APA says so on those check boxes". It was a really technical win for Texas.

So it basically boiled down to a question of where those specific line items in the APA are applicable when Texas is the one being the bitch about everything? I'm doubtful SCOTUS viewed this as a larger question about State vs Federal because even the Fifth Circuit (who is very conservative) indicated that the Federal Government was mostly right, BUT, if they didn't like them forcing that part of the APA on them (the US Government), Congress ought to go back and clarify things.

EDIT: Oh I guess I should indicate what the whole spat started over. Last October Border Patrol snipped some razor wire fence that Texas had put up. Texas sued for destruction of State Property. That's what this whole thing is all about. Now that the fence can be fully removed with this order from SCOTUS, it's likely that Texas will seek recompense for their property (AKA, Texas will attempt to make the US taxpayer pay for the clean up of the fence and the US government will likely want to send the clean up bill to Texas).

3 comments

I chalk this up to the SCOTUS not wanting to upset the concept upon which their own federal power rests. They still have to make some effort to defend federal power or eventually they won't be valuable enough to bribe.
Very light details from the court on this.
The application to vacate injunction presented to Justice Alito and by him referred to the Court is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.
I would be cautious to read any deeper than that. The issue for the injunction wasn't "does Texas have a right to protect their border?" The lower court had sided with Texas that the US had waived its sovereign immunity from state tort claims seeking injunctive relief, via the Administrative Procedure Act (APA).
Quick primer for those not knowing. A bill is a purposed thing in Congress, if both chambers approve it and the President signs it, it becomes law. These laws can be something like "The Department of Transportation shall build a highway that connects Wapakoneta, OH to Indianapolis, IN" The Department of Transportation is then allowed to build a road and they have to publish all kinds of rules about how they're going about building it (because remember the law only says build a road, not where to build it, out what material, etc...). We call this regulation. Regulation is NOT law (as Congress+President can only do that) but can carry the weight of it.
The APA is a law that sets up a procedure for regulation. Texas had argued that the Biden Administration did not check off all of the boxes required by the APA to remove the razor wire fence that Texas had erected. The Administration had indicated that, Texas was the one violating all kinds of Federal stuff, there isn't a need to check the specific boxes that Texas indicated in Court because Texas is the one who started this whole mess. The Fifth Circuit agreed with Texas that "Hey look, I get it, Texas is being a weak ass bitch. BUT, APA says so on those check boxes". It was a really technical win for Texas.
So it basically boiled down to a question of where those specific line items in the APA are applicable when Texas is the one being the bitch about everything? I'm doubtful SCOTUS viewed this as a larger question about State vs Federal because even the Fifth Circuit (who is very conservative) indicated that the Federal Government was mostly right, BUT, if they didn't like them forcing that part of the APA on them (the US Government), Congress ought to go back and clarify things.
EDIT: Oh I guess I should indicate what the whole spat started over. Last October Border Patrol snipped some razor wire fence that Texas had put up. Texas sued for destruction of State Property. That's what this whole thing is all about. Now that the fence can be fully removed with this order from SCOTUS, it's likely that Texas will seek recompense for their property (AKA, Texas will attempt to make the US taxpayer pay for the clean up of the fence and the US government will likely want to send the clean up bill to Texas).
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