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Updates: August 18, 2022
Injunction of RMX termination lifted, but TX & MO keep fighting to force the program’s continuation
Since our last newsletter, the Fifth Circuit had just denied the federal government’s request to immediately send the Remain in Mexico case back to the district court to vacate the unlawful injunction. Since then—and following the Biden Administration’s motion for reconsideration—the Fifth Circuit reversed that decision and sent the case down. Last Monday, the district court formally lifted the injunction, after which DHS and the Biden Administration announced that RMX is done.
Unfortunately, Texas and Missouri are not done trying to force the Administration to maintain the inhumane RMX policy. When the case returned to District Court Judge Kacsmaryk—one of several Trump-appointed judges for whom Texas has consistently judge-shopped—the states amended their complaint to challenge the October 2021 memorandum terminating RMX. That memo was DHS’s second attempt at ending RMX; it detailed all the reasons why RMX would be ended as soon as the (now-vacated) injunction was lifted. The states’ sole legal claim is that the memo is “arbitrary and capricious” because it did not “adequately” explain specific aspects of the termination decision. That claim is plainly modeled on the last paragraph of Justice Alito’s dissent in Biden v. Texas, which proffered arguments the states have now adopted.
Texas and Missouri also filed a motion to “postpone the effective date” of the October 2021 memo while their case is pending. The states filed this motion (under a relatively obscure provision of the Administrative Procedure Act) instead of requesting a preliminary injunction because Biden v. Texas ruled that courts are statutorily prohibited from enjoining the termination of RMX; nonetheless, the states’ motion makes plain that they seek the functional equivalent of the now-vacated injunction—an indefinite, court-ordered continuation of RMX.
Per the schedule ordered by Judge Kacsmaryk, the motion to “postpone” RMX’s termination will be fully briefed on September 9, 2022; the schedule does not mention whether there will be oral argument.
Intra-GOP politics get TX border wall suit tossed; similar suit re: TX farm narrowed
Earlier this month, a Texas district court dismissed a lawsuit brought on behalf of Texas (by its Attorney General, Ken Paxton) that challenged the Biden Administration’s announced end to border wall construction (which nonetheless continues). It was dismissed because someone else had already brought a virtually identical case on behalf of the State of Texas: George P. Bush, who sued claiming that the (alleged) end of border wall construction harms a farm tended by Texas’s General Land Office—of which he is the Commissioner. The district court allowed the farm-based lawsuit to proceed, but dismissed 7 of its 9 claims.
Bush filed this suit as part of his primary challenge to Paxton, and the wall was a common prop in Bush’s campaign ads; by moving first, he boxed Paxton out of the border wall litigation (at least for now; Paxton has already appealed). Here’s hoping that Bush has lost some appetite for the litigation now that he’s been trounced by Paxton in the primary runoff.
In solidarity,
Tasha Moro
Communications Director
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