WHAT IS THE SCOTUS RULING? THE TYRANNY CONTINUES
IS OUR COUNTRY IMPORTANT ENOUGH TO THE COURT?
The latest action by SCOTUS could lead a person to believe it doesn’t care if the country continues to control its borders in order to remain a sovereign country. A ruling was issued but no explanation was made about the reasoning involved. This is the Court that rules us?
The case of Department of Homeland Security v. Texas started because the federal government was upset that the state of Texas wanted to protect its citizens from what was occurring to them as a result of the federal policy allowing people from throughout the world to illegally cross the southern border without restraint and stretched c-wire (concertina wire) along a stretch of the border on Texas land. It is ironic to mention the Constitution because you will recall what it was designed to accomplish, to protect the states from the newly formed federal government. How strange that the federal government wanted to control the state’s ability to remain a safe state.
The federal government claimed they had supremacy over the situation and demanded the wire be taken down because it interfered with their ability to “control” immigration.
In the district court at trial, witnesses testified that in an effort to foul the efforts of the Texas authorities, the Border Patrol used fork lifts to either smash the c-wire to the ground to allow immigrant access or lifted it to allow the illegals to cross underneath.
Here are some quotes from the District Court opinion (the c-wire is a chattel which is personal property and a TRO is a temporary restraining order):
Both the Border Patrol and Texas agree that the c-wire must be cut in the event of an emergency, such as the threat of a migrant’s drowning or suffering heat exhaustion. “The problem arises when Border Patrol agents cut the wire without prior notification to [Texas] for reasons other than emergencies.”
…
On October 24, 2023, Texas sued Defendants in federal court alleging common law conversion, common law trespass to chattels, and violations under the Administrative Procedure Act (“APA”). Among other relief, Texas sought a preliminary injunction based on its trespass to chattels claim. Three days later, Texas sought a TRO. The following day, Texas filed a notice with the district court alleging that “the Defendants, knowing a motion for a TRO had already been filed, used a forklift to seize concertina wire and smash it to the ground.” The court granted an emergency TRO on October 30, 2023, barring Defendants “from interfering with [Texas’s] concertina wire except for medical emergencies.” Over the ensuing month, the court held two hearings on Texas’s motion for a preliminary injunction; heard testimony from multiple witnesses; and received thousands of pages of evidence (including five videos) as a result of expedited discovery. The court also twice extended the TRO. Although the court would ultimately deny a preliminary injunction on sovereign immunity grounds, the court made numerous fact findings supporting Texas’s trespass to chattels claim. As a general matter, the court rejected Defendants’ claims that the Border Patrol was justified in cutting the c-wire: (1) to inspect, apprehend, and detain illegal aliens; and (2) to prevent or address medical emergencies. To the contrary, the court found that the Border Patrol cut the c-wire “for no apparent purpose other than to allow migrants easier entrance further inland.” While noting it was “aware of at least fourteen incidents of wire cutting,” the court focused on a September 20 incident that was captured on video and was, in the court’s view, “most illustrative.” In that incident, Border Patrol agents cut two additional holes in the c-wire 15 feet away from an existing hole and installed “a climbing rope for migrants.” Meanwhile, a Border Patrol boat “passively observ[ed] a stream of migrants” crossing the river who were never “interviewed, questioned as to citizenship, or in any way hindered in their progress into the United States.” Instead, after letting the migrants through, the Border Patrol sent them to “walk as much as a mile or more” with no supervision in hopes they would proceed to the nearest immigration processing center.
The court first rejected as a factual matter Defendants’ claim that the Border Patrol’s actions were intended to “inspect, apprehend, and process” incoming aliens. The court found no alien was “inspected” at all. Moreover, if agents intended to inspect, they could have done so without doing anything and transfer of persons unlawfully entering, or who have recently unlawfully entered, the United States”); 8 U.S.C. § 1357(a) (authorizing agents, “within a distance of twenty-five miles from any . . . external boundary [of the United States] to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States”)
As the court noted, “Border Patrol agents already possess access to both sides of the fence . . . to the river and bank by boat and to the further-inland side of the fence by road.” Nor was wire-cutting necessary to “apprehend” or “process” aliens. Indeed, no one was “apprehended” or placed in “custody”—as the court found, aliens coming through the holes were merely waived along in the “hope that [they] will flow in an orderly manner . . . to the nearest processing center.” Moreover, agents let “some 4,555 migrants [in] during [the September 20] incident, but only 2,680 presented themselves for processing.” Accordingly, the court found that “[n]o reasonable interpretation of the[] definitions [of ‘apprehension’ or ‘detention’] can square with Border Patrol’s conduct.” The court also rejected Defendants’ argument that wire-cutting was generally necessary to prevent “medical emergencies.” To be sure, the court (and the parties) recognized that “injury, drowning, dehydration, and fatigue are real and common perils in this area of the border,” and so “medical emergencies justify cutting or moving [Texas’s] fence.” But the court rejected the notion that medical emergencies could justify any and all destruction of the c-wire. “While an ongoing medical emergency can justify opening the fence, the end of that exigency ends the justification.” So, for example, “cutting the wire to address a single individual’s display of distress does not justify leaving the fence open for a crowd of dozens or hundreds to pass through.” The court also rejected Defendants’ argument that cutting the c-wire could be justified because it would assist in the “prevention of possible future exigencies.” Despite these findings, the district court nonetheless denied Texas’srequest for a preliminary injunction. The court recognized that 5 U.S.C. § 702 generally waives the United States’ sovereign immunity for claims for non-monetary relief based on an agency official’s act or failure to act. Nonetheless, the court reasoned that § 702 does not “unequivocally” encompass injunctive relief under common law conversion or trespass to chattels claims. Additionally, the court found that, “at this early stage of the case,” Texas had not shown the c-wire cutting resulted from final agency action. Finally, the court found that there was “insufficient evidence at this juncture” to support Texas’s ultra vires claim under 5 U.S.C.§ 706(2)(C).
Texas immediately appealed, seeking an emergency injunction pending appeal or a temporary administrative stay while the panel considered its motion. The panel granted an administrative stay. Defendants have since filed an opposition to Texas’s request and Texas has filed a reply in support.
An interesting part of the District Court’s opinion deals with the claim by the federal government that it has supremacy and therefore sovereign immunity from suits such as this one. The Court answers that claim with this language:
The federal government and its agencies are immune from suits, even by states, unless Congress clearly consents by waiving sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994); California v. Arizona, 440 U.S. 59, 61–62 (1979). Any waiver must be clear and ambiguities are construed strictly in favor of immunity. La. Dep’t of Env’t Quality v. EPA, 730 F.3d 446, 448–49 (5th Cir. 2013).
Section 702 of the APA provides in relevant part:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party. 5 U.S.C. § 702. We have explained that § 702 “generally waives” sovereign immunity, Apter v. HHS, 80 F.4th 579, 589 (5th Cir. 2023), including for “suits seeking nonmonetary relief through nonstatutory judicial review of agency action.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985); see also Doe v. United States, 853 F.3d 792, 798–99 (5th Cir. 2017) (explaining that § 702 “broaden[s] the avenues for judicial review of agency action by eliminating the defense of sovereign immunity” in suits seeking nonmonetary relief).
Section 702 plainly waives immunity for Texas’s trespass to chattels claim. That claim was brought as “[a]n action” in federal court; it “seek[s] relief other than monetary damages”; and it “stat[es] a claim” that a federal agency’s officials and employees “acted or failed to act in an official capacity or under color of legal authority.”
So, the court found that since the suit was not for money damages, instead for damage to chattels, the suit was proper.
The case was appealed by Texas to the Circuit Court of Appeals (5th Cir.), the court overseeing the jurisdiction of the District Court, and requested an injunction prohibiting the federal government from cutting the wire pending the appellate procedure. The 5th Circuit court said:
Texas seeks an injunction pending appeal to prevent the United States Border Patrol from cutting, destroying, or otherwise interfering with concertina wire (“c-wire”) Texas has constructed along more than 29 miles of municipal and private land in the Eagle Pass sector of our southern border. The district court granted Texas a temporary restraining order, after which it held hearings, heard testimony from multiple witnesses, and received copious documentary evidence. Despite making numerous fact findings supporting Texas’s claims, the district court ruled that the United States’ sovereign immunity had not been waived under 5 U.S.C. § 702 and that the court was therefore barred from converting the TRO into a preliminary injunction.
Texas immediately appealed and sought an emergency injunction pending appeal. The panel granted a temporary administrative stay while considering the parties’ submissions. … we GRANT Texas’s request for an injunction pending appeal. Accordingly, Defendants are ENJOINED during the pendency of this appeal from damaging, destroying, or otherwise interfering with Texas’s c-wire fence in the vicinity of Eagle Pass, Texas, as indicated in Texas’s complaint. As the parties have agreed, Defendants are permitted to cut or move the c-wire if necessary to address any medical emergency as specified in the TRO. See App. K at 4, 9–11 (Oct. 30, 2023).
The federal government then filed a petition to SCOTUS requesting that the injunction be lifted. In a brief order, which because of the legal language is confusing, SCOTUS lifted the injunction which then allows the federal government to cut and remove the wire. None of the justices wrote an opinion indicating their thinking that justified the decision. Here is the Court docket entry:
Application (23A607) to vacate injunction … is granted. The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application to vacate injunction.
As you can see, Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh were against lifting the injunction but the other five, Chief Justice Roberts and Associate Justices Sotomayor, Kagan, Amy Coney Barrett, and Ketanji Brown Jackson were the prevailing majority.
It seems strange because Roberts and Amy Coney Barrett were supposed to be conservatives who one would think would support the Constitution and the right of the state to protect itself against an invasion of people illegally entering the U.S. It is not strange to see Chief Justice Roberts side with the liberal wing of the Court because he often becomes the deciding justice by siding with one side or the other without explaining his reasoning.
As too often occurs, the members of the Court do not write to indicate their positions. In this day and age of transparency and accountability why do the judges not want to have the public understand how they made their decisions? Oh, yes they are not accountable to us because they are unelected. What do they have to worry about, they are basically untouchable because they “ … shall hold their Offices during good Behavior ….”?
This country was originally established by states who only formed a federal government through necessity because of their lack of power to maintain an army or navy to protect the new nation. As mentioned before they thought they were protecting themselves from control which is why they revolted against England.
For example, it was clear to Alexander Hamilton who said “the powers delegated by the proposed Constitution to the Federal Government are few and defined.”
Article 1, Section 3 of the Constitution sets out in detail the “Powers prohibited of States”. A number of actions that cannot be taken by states are delineated, i.e., “No State shall enter into any Treaty, Alliance, or Confederation … No State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”
The legal principle “expressio unius est exclusio alterius” is a principle that applies in statutory construction that when one or more things of a class are expressly mentioned others of the same class are excluded. It can therefore be argued that the states are not prohibited by the Constitution from protecting the property of its citizens from an invasion by either military force or illegal immigration. How else would the states be able to protect themselves from the possible damage done and illegal acts that may occur or a need to provide unexpected services for those invading the country? Are they at the mercy of the inadequacies of the federal government when that government is not carrying out its claimed responsibility for the area of immigration? That wouldn’t make sense.
Provisions in the Constitution relative to Article IV concerning “The States” support this position such as the language stated in Section 4 which provides: “The United States … shall protect each of them against Invasion …”
Another argument supporting this position is that Article. VI, including the so-called supremacy clause says: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land ….”. Since Congress has not passed legislation determining that the states cannot interfere in immigration matters even if it threatens the safety of its citizens there is no question that the federal government is not supreme to the state governments in this area.
It seems clear from the provisions of the Constitution stated above that the states are not powerless to protect their citizens even though subject to its articles with an overall respect for the power of the federal government if it is carrying out its responsibilities under that document. If it is not, the states must and have the authority to act.
In conclusion, there is a concern among some who fear that steps are being taken, either intentionally or with negligence as to the results, to destroy this country and the principles on which it was founded. If SCOTUS doesn’t make it clear in its actions that the fear cannot find fertile ground, some would wonder if it is without this understanding as well. It is up to the people, for whom the country was developed under the Constitution to maintain it if they so desire. No one else will do it.
Author of “The Tyrannical Rule Of The United States Supreme Court; How The Court Has Violated The Constitution”, available as an ebook on Barnes&Noble and soon through IngramSpark and book outlets.
© 2023 Donald Brockett Website: donaldbrockettauthor.com
Articles: dcbrockett.substack.com Contact: donsbooks@proton.me
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Donald C. Brockett is a former Washington state attorney, who served 6 terms as Spokane County Prosecuting Attorney and is now retired after a total of 52 years between public and private practice.
During his time in the prosecutor’s office, he tried numerous cases in the District and Superior courts of Spokane County. For many years, he handled all appeals in the Washington State Supreme Court and later in that court and the newly created Court of Appeals for Division III. He has argued cases in the Ninth Circuit Court of Appeals, and the US Supreme Court.
Published with permission of dcbrockett.substack.com