Dear Karen,

Two developments covered in this newsletter make clear that the anti-immigrant judicial agenda continues. As always, you can check our microsite for the latest updates on other extremist litigation challenging immigrant inclusive policies.

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October 26, 2023

Texas sues to block Border Patrol from cutting the State’s dangerous razor wire fencing 

On Tuesday, Texas again sued the Biden Administration, this time over the federal government’s alleged practice of cutting concertina wire (aka “razor wire”) fencing that Texas has been placing along its southern border since the summer. Like the buoy barriers Texas put in the Rio Grande, the razor wire is intended to deter migrants from crossing into the state, and to inflict physical harm on those who attempt to do so. (Last fiscal year, before these deadly deterrence measures, at least 853 migrants died crossing the U.S.-Mexico border). On the same day it filed suit, Texas also moved for a preliminary injunction blocking the federal government from cutting its razor wire—at times done to rescue migrants—arguing that it is likely to succeed on its legal claims that the cutting is unlawful destruction of Texas’s property and that the alleged wire-cutting policy did not go through required procedures. Texas filed the lawsuit in the Del Rio Division of the Western District of Texas, where there is a 100% chance it will be assigned to George W. Bush appointee Chief Judge Alia Moses. The federal government has not yet appeared in the case.

Judge sets bench trial in 1 month on Texas’s challenge to $1.7 trillion spending bill

Meanwhile, one of Texas’s more obscure cases took a big step to the fore, when the district judge scheduled a bench trial on Texas’s claim that the Consolidated Appropriations Act of 2023 is invalid because fewer than half of the House of Representatives members were physically present when it approved the legislation last December, which Texas claims violated the Constitution’s “Quorum Clause.” Texas’s legal theory has been rejected by the D.C. Circuit in a lawsuit brought by the recently defenestrated House Rep. Kevin McCarthy, on the ground that the Constitution says the House decides for itself what constitutes a quorum (and its COVID-era rules at the time counted proxy voting toward the quorum).

Texas claims to be injured by two unrelated parts of the massive $1.7 trillion appropriations law it challenges. The first is a $20 million appropriation to a DHS pilot program that uses non-carceral alternatives (like GPS bracelets) to keep track of migrants waiting for their immigration court date, rather than locking them up in detention unnecessarily. The second is the Pregnant Workers Fairness Act (that was tacked onto the must-pass appropriations bill), which requires covered employers—including the State of Texas—to provide reasonable accommodations to a worker’s limitations related to pregnancy and childbirth.

Texas’s request to preliminarily enjoin (block) the law and the Biden Administration’s request to dismiss the case entirely had both been pending for several months, but last week Judge Hendrix notified the parties that he would consolidate those requests into a bench trial instead. More concerningly, Judge Hendrix set a quick date and provided a list of 11 issues he wanted the parties to address at trial—and those topics seem to indicate that he expects to get deep into the issues the case presents. The bench trial is scheduled for November 28 in Lubbock.

As always, we’ll keep you posted on these and other cases.

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Thanks for reading,

Tasha Moro

Communications Director

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