It Is Likely The Supremes Will Agree With The Dissent, In The Fifth Circuit, On The Shelby Park Land Razor Wire Barrier Case

I am headed out for our traditional "day after" Dim Sum roundtable. . . so this will be short.

On Wednesday night, the Fifth Circuit decided to reinstate a premlinary injunction against the US Border Patrol being able to cut land based Texas razor wire. But the exceptions in it -- they are several truckloads wide. The decision specifically set the injunction only where US Border Patrol has immediate alternate routes of access, to asylum seekers there arriving, and never at any time, when life or limb are in jeopardy (on either side of the razor wire). See this, at the bottom of page three, specifically -- and a bit of the dissent:

. . .Because Texas has not met its burden to show a waiver of sovereign immunity or a likelihood of success on the merits, I respectfully dissent. . . .

Texas’s challenge appears to be directed at internal “communications between lower- and higher-ranking [Department of Homeland Security] officers regarding wire-cutting in the Del Rio Sector.” These emails, according to Texas, constitute the Policy.37 Texas alleges that the emails at issue are “changeable agency action authorizing line-level officers to tamper with Texas’s property,” memorializing Defendants’ alleged “policy, pattern, or practice of intermeddling with [Texas]’s concertina wire” along the border.

But in fact, these emails discuss federal agents’ responsibilities in apprehending, processing, and inspecting noncitizens,38 as well as the agents’ corresponding authority when doing so. They set forth informal field guidance for agents for when they encounter physical objects impeding their ability to apprehend, process, and inspect noncitizens. This guidance appears deliberately open ended, as it provides different advice depending on the circumstances. And even when the guidance runs out, i.e., when a “supervisor is not available” and “anyone is in distress,” the communications advise agents to “use their judgment regarding how best to proceed.” They never require cutting through or lifting fencing or other obstacles.

The emails, i.e., the Policy, are “more like a tentative recommendation than a final and binding determination.” Franklin v. Massachusetts, 505 U.S. 788, 798 (1992). . . .

Yep. USDC Judge Ramirez, sitting as a panel member, has the most cogent dissent. The Supremes will see it her way. Onward.

नमस्ते