Fifth Circuit hands Texas another win on border security law

By Bethany Blankley
The Center Square

The Fifth Circuit Court of Appeals handed Texas its third win Friday on border security.

As the border crisis escalated during the Biden administration, Gov. Greg Abbott took a series of measures to implement border security efforts, including building and expanding concertina wire barriers, building a border wall and installing marine barriers in the Rio Grande River, all on Texas soil. He also signed several border security bills into law, including SB 4.

Border barriers were implemented through Abbott’s border security initiative, Operation Lone Star. In response, the Biden administration and private groups sued.

On Friday, the Fifth Circuit ruled on a lawsuit filed by immigrant groups to block SB 4 from going into effect. The law makes illegal entry into Texas a state crime. It gives Texas law enforcement the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry, among other provisions. Gov. said then President Joe Biden’s “deliberate inaction … left Texas to fend for itself.” He pointed to Article 1 Section 10 of the U.S. Constitution, which empowers states “to take action to defend themselves and that is exactly what Texas is doing.”

The Biden administration sued, as did El Paso County, Las Americas Immigrant Advocacy Center and American Gateways. They argued the law is unconstitutional and the federal government has the “exclusive authority under federal law to regulate the entry and removal of noncitizens.” SB 4 “creates purported state immigration crimes for unlawful entry and unlawful reentry, permits state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders.”

The district court and a Fifth Circuit panel of three judges agreed, blocking SB 4 from going into effect. Texas appealed, requesting the full court to hear the case.

After President Donald Trump was elected, his administration dropped the federal lawsuit against SB 4 but the private action continued.

On Friday, the court issued a 12-page ruling solely on procedural grounds, arguing the plaintiffs didn’t have standing to sue. It didn’t address the merits of the claims.

Circuit Judge Jerry Smith wrote the opinion for the majority, joined by Chief Judge Jennifer Walker Elrod and judges Edith Jones, Catharina Haynes, Don Willett, James Ho, Stuart Duncan, Kurt Engelhardt, Andrew Oldham and Cory Wilson. Citing Supreme Court cases, Smith wrote, “‘Courts sometimes make standing law more complicated than it needs to be; … [P]laintiffs must have a ‘personal stake’ in a case to have standing to sue; … Plaintiffs cannot ‘manufacture standing by voluntarily’ incurring costs.’

“That should be the end of this matter: These Plaintiffs voluntarily incurred costs to advocate for clients. Under recent Supreme Court precedent, that falls far short of conferring standing. We vacate the preliminary injunction to the contrary.”

Circuit Judge Priscilla Richman, joined by Judges Carl Stewart, Leslie Southwick, Stephen Higginson and Irma Carrillo Ramirez, issued a lengthier dissent, joined in part by judges James Graves and Dana Douglas. They argued Texas enacted its own immigration laws and Las Americas Immigrant Advocacy Center had standing. “Federal laws on the books permit Texas to assist the federal government in apprehending illegal immigrants if the federal government so requests. But Texas cannot enact its own immigration regime,” she wrote.

This was the third win the court handed Texas.

In July 2024, the Fifth Circuit handed Texas its first win, ruling Texas had a legal right to install marine barriers. In this case, Ho emphasized state sovereignty.

“A sovereign isn’t a sovereign if it can’t defend itself against invasion,” Ho wrote. “Presidents throughout history have vigorously defended their right to protect the Nation. And the States did not forfeit the sovereign prerogative when they joined the Union. Indeed, the Constitution is even more explicit when it comes to the States.”

By December 2024, the Fifth Circuit handed Texas its second win, stating it had a legal right to erect the concertina wire barriers and the federal government could not remove them, The Center Square reported.

In both cases, the Fifth Circuit reversed the lower courts’ rulings in favor of Texas. The barriers remain in place and have expanded. OLS is currently in its fifth year.

While lauding the first two wins, Abbott said the fight was “far from over. Texas will continue to defend our constitutional right to secure our southern border to keep our state and the nation safe.”

After the third win, his press secretary Andrew Mahaleris, told The Center Square, “Governor Abbott signed SB 4 into law to protect Texas and America from President Biden’s open border policies, the effects of which did not disappear overnight. He thanks the Fifth Circuit for reaffirming this common-sense law that helps ensure public safety. Texas will not back down from its constitutional right to self-defense.”