Biden administration gives up on Texas border suit, ordered to finish wall

By Bethany Blankley
The Center Square

Texas has won another lawsuit against the Biden administration, this time one that requires it to finish building the border wall. 

The ruling was issued May 29, with a 60-day window for appeal. Because the Biden administration didn’t appeal by July 29, the court’s order remains in full effect.

The ruling covers two consolidated lawsuits, one filed by the Texas General Land Office under its former commissioner, George P. Bush, and the state of Texas; the other was filed by Missouri and Texas. Both were filed in the U.S. District Court Southern District of Texas McAllen Division. The first names the president, Department of Homeland Security Secretary Alejandro Mayorkas and DHS as defendants. The second names them and U.S. Customs and Border Protection and its director as defendants.

It also follows one issued in March that handed Texas a win in the consolidated cases. 

The lawsuits argue the president and Mayorkas violated federal law and asked the court to instruct them to follow the law and use funds appropriated by Congress for their intended purpose. 

In 2020 and 2021, Congress allocated roughly $1.4 billion to fund the construction of a barrier system along the southwest border. On his first day in office, President Joe Biden ordered construction be halted. Because contracts had already been implemented, it cost taxpayers an initial $6 million, then $3 million a day for the border wall not to be built. Materials that had already been paid to build the wall were left to rust on the ground, The Center Square reported.

In October 2021, Missouri and Texas sued the president and Mayorkas, requesting the court to order them to complete border wall construction. The GLO also sued, which owns over 500,000 acres of land near the U.S.-Mexico border, with an estimated 31 linear miles along the Rio Grande. When Gov. Greg Abbott began building Texas’ own border wall, the area where it was first constructed was on GLO land.

In response to the lawsuits, Mayorkas, as he has in nearly every lawsuit filed against him, argued he has “discretion” to change or implement policies how he sees fit. In this case, DHS argued that regardless of the statutory language stipulating that funds should be used to construct the border wall and barriers, Mayorkas had discretion over how the funds could be spent.

As the cases were consolidated and progressed, Mayorkas reallocated border wall funding to focus on environmental projects and maintenance repairs instead.

Judge Drew Tipton granted the plaintiff’s requests for a permanent injunction, stating they “have demonstrated success on the merits of their claims brought under the Administrative Procedures Act for violation of the Consolidated Appropriations Act.” 

Tipton ordered the federal government, respective agencies, officers, employees and others “enjoined and restrained from implementing a July 22 Amended Plan” to halt border wall construction. He also prohibited the federal government from obligating border wall construction funds “toward mitigation and remediation efforts, repair of existing barrier, so-called system attribute installation at existing sites, or other similar purposes,” saying they can only be spent on “the construction of physical barriers, such as additional walls, fencing, buoys, etc.”

Tipton also notes that the case “is unique from most APA cases” because the plaintiffs challenged a directive issued by Mayorkas via a memo, not an agency regulation. He explains that Mayorkas could “simply re-obligate the appropriations at issue” by removing or rescinding his memo. But “the mere removal of the DHS Plan would do nothing to prevent DHS from making the same unlawful spending decisions if it so chose,” he explains, which is why he issued a permanent injunction. He said his order provides “more relief” and “leaves intact the numerous obligations and policies within the Plan that Plaintiffs do not challenge.” He also dismissed any remaining claims of the Biden administration. 

In response, Texas Attorney General Ken Paxton said, “This is a final victory against Biden’s attempt to defund the border wall. His Administration illegally sought to prevent the construction of the border wall and illegally attempted to repurpose the money allocated for American safety and sovereignty, working instead to keep the border open.” 

The GLO, Texas and Missouri “sued and won to stop their unlawful scheme,” he said. “Now, the Administration has thrown in the towel by declining to appeal their defeat and will be legally required to build the wall.”

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