Trust the Border Patrol

(Even if you don't actually trust it)

On January 22, 2024, the Supreme Court, by a 5-4 vote, vacated an injunction that had restricted the Border Patrol from cutting a fence placed by Texas near the Rio Grande. Governor Abbott did not take this decision well, incorrectly stating that “Texas’s constitutional authority to defend and protect itself” is “the supreme law of the land and supersedes any federal statutes to the contrary.” We can all look forward to new frontiers, so to speak, of Fence Law.

In my opinion, the Supreme Court did the right thing in vacating the injunction. Ultimately, the question boils down to: should the Supreme Court trust the Border Patrol? In my view, it should. This is not because I have particularly warm feelings towards the Border Patrol, but instead because separation-of-powers principles require the Supreme Court to trust the Border Patrol. Our justice system cannot function unless courts have a measure of faith in the Executive Branch, misplaced though it may be.

The Fence vs. The Feds

Many illegal immigrants cross the Rio Grande, sometimes bringing fentanyl with them. This vexes Texas. Frustrated by the perceived ineptitude of the federal government in halting the flow of illegal immigration, Texas put up fences made of concertina wire at various locations near the border, including along a 29-mile stretch of the riverbank near Eagle Pass, Texas.

I’ve lived a blessed enough life that I’ve never heard the phrase “concertina wire” until this case. It’s scary-looking razor wire, the type that surrounds maximum-security prisons and Area 51. “Concertina” is a reference to a type of musical instrument I had also not previously heard of. It apparently can be expanded and contracted, kind of like an accordion. Wikipedia reports that, given how easy it is store concertinas, Robert Peary brought a concertina with him to the Arctic. Anyway, this style of razor wire was christened “concertina wire” because it can be expanded like an actual concertina. Texas claims it paid $11 million to buy this concertina wire, which sounds like a lot of money for concertina wire.

(This is how Dall-E thinks Van Gogh would have painted concertina wire.)

In September and October 2023, Border Patrol officials repeatedly cut the fence, leading to profanity-filled shouting matches between state and federal officials. On October 24, Texas sued the Border Patrol, seeking a court order preventing the Border Patrol from cutting the fence.

Texas brought federal claims under the Administrative Procedure Act, but the claim that has gotten the most traction so far is a state-law trespass-to-chattels tort claim. Translated into English, Texas is saying that the fence is Texas’s property, and it’s a tort to destroy someone’s property, so the feds should knock it off.

The Border Patrol responds that it has express statutory authority to cut the fence. Under 8 U.S.C. § 1357(a)(3), the Border Patrol has the authority, without a warrant, “to have access to private lands, but not dwellings” within 25 miles of the border, “for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.” Also, under 6 U.S.C. § 211(c)(8), the Border Patrol is authorized to “enforce and administer all immigration laws … including … the inspection, processing, and admission of persons who seek to enter or depart the United States” as well as “the detection, interdiction, removal, departure from the United States, short-term detention, and transfer of persons unlawfully entering, or who have recently unlawfully entered, the United States.” Putting these authorities together, federal law gives the Border Patrol the right to access the Rio Grande riverbank for purposes of enforcing federal immigration law. If Texas tort law purports to prevent Border Patrol officers from exercising that federal statutory right, then Texas tort law must give way under the Supremacy Clause, or so the argument goes.

Texas doesn’t seem to dispute that the Border Patrol can knock down state-built fences if it’s enforcing federal immigration law. So, if the woke globalists in the California government construct fences near the border for the purpose of protecting migrants from the Border Patrol, and the Border Patrol wants to bulldoze the fences to facilitate the arrest of the migrants, then Texas agrees that the Border Patrol can do that.

Texas’s argument is that the Border Patrol is not, in fact, enforcing federal immigration law. Instead, it is simply cutting the fence and letting the migrants into the country. In Texas’s view, federal law may give the Border Patrol the right to cut the fence to combat illegal immigration, but it does not give the Border Patrol the right to cut the fence to facilitate illegal immigration. Therefore, Texas tort law applies. The application of Texas tort law wouldn’t interfere with any federal right because the Border Patrol isn’t exercising any federal right. It’s just wantonly destroying private property.

Rashomon, except about a fence

And so, the district court decides to hold a hearing (actually, two hearings) in order to figure out what is actually happening at the border.

Although there were several fence-cutting incidents, the focal point of the hearings was an incident that took place on September 20. A video of this incident, which is not publicly available but which was shown to the court, depicts federal agents cutting holes in the wire for purposes of letting migrants into the country. Despite the video, there are many mysteries about what happened that day. Reading about this incident is like watching Rashomon, the two sides tell contradictory stories and it is impossible to tell what happened.

The government’s side of the story goes like this: The river bank was muddy and slippery, several migrants had already been swept away by the current, and there was a risk that others would be swept away, so the Border Patrol officials cut open the fence to defuse the situation and let the migrants into the country. The migrants were directed to walk along a narrow road for about a mile to a processing center. There was a fence on one side of the road and concertina wire on the other side, so the migrants couldn’t go in any direction other than straight ahead towards the processing center. Border Patrol agents were stationed along the road to direct the migrants. No one ever saw a migrant jump the fence. Thus, the wire-cutting facilitated the apprehension, detention, and inspection of the migrants, as contemplated by statute.

Texas’s side of the story goes like this: Federal agents had no justification for cutting the fence. There was no danger. The migrants were perfectly fine. Although the Border Patrol agents told them to walk for a mile to a processing center, the migrants weren’t supervised on this walk and were free to hop the fence and sprint into the United States, never to be heard from again. The purpose of cutting the fence was not to help the migrants, but to usher them into the United States. Also, the Border Patrol could have accessed the migrants by boat. It didn’t need to cut the fence.

The district court hears testimony from both sides and then issues a mixed decision.

The district court opens by holding that Texas’s state-law tort claim is barred by sovereign immunity. Without going into details, this is a close issue that could go either way, in my opinion.

The court then turns to Texas’s federal claims. The court is harsh towards the federal defendants, finding that they engaged in “culpable and duplicitous conduct” and declaring: “The Defendants cannot claim the statutory duties they are so obviously derelict in enforcing as excuses to puncture the Plaintiff’s attempts to shore up the Defendants’ failing system.”

But the court nonetheless finds that there’s no Administrative Procedure Act (APA) violation. To prevail on an APA claim, the plaintiff must identify “final agency action.” The court finds that there’s no federal agency action because the agency, as opposed to individual employees on the ground, hasn’t done anything. Texas strenuously argues that the officers’ actions are attributable to an agency policy, practice, or pattern, but the district court declines to make such a finding. (It doesn’t find that there isn’t such a policy, it just concludes that there’s insufficient evidence to find that there is one.). The court explains: “The problem appears unique to the Del Rio sector. The testimony and evidence of both parties suggest that, by and large, Border Patrol agents have not cut the Plaintiff’s wire except when faced with exigent circumstances in the El Paso and Rio Grande Valley Sectors.” So, no agency policy, no final agency action, no APA claim.

Texas also alleges “ultra vires” agency action, which is code for “agency action that is so lawless that the plaintiff wins even if the ‘final agency action’ requirement isn’t satisfied,” but the court holds that Texas loses on this, too. And so, the district court denies a preliminary injunction.

What were the officers supposed to do?

I agree with the district court’s determination that there’s no final agency action or ultra vires action. However, I disagree with the district court’s critiques of the officers’ conduct that day—and those critiques would play a major role at the Supreme Court phase of the case. In my view, the federal officers acted reasonably, and the district court’s contrary conclusion is based on serious legal errors.

The next several paragraphs will focus on the district court’s analysis of the particular events of September 20. I recognize that focusing on that issue makes it sound like I am looking at the trees rather than the forest. There’s a crisis at the border; who cares about the district court’s analysis of what happened on one particular day? But actually, in this case, the trees matter. The district court’s findings about this particular incident were central to Texas’s argument at the Supreme Court that an injunction is warranted. Although this lawsuit is undoubtedly part of a broader controversy, the emergency application before the Supreme Court—the one that led Governor Abbott to declare that he wasn’t bound by federal law—hinged on specific allegations regarding a specific fence. So it’s important whether the district court’s evaluation of those specific allegations is correct. And it’s not.

The crux of the district court’s decision was its view that, rather than opening the fence, the officers should have shooed the migrants back to Mexico. The court expressly rejects the officers’ argument that once migrants cross the river, “they have no authority to direct illegal entrants to return to Mexico.” In the court’s view, “Border Patrol agents may … simply direct such individuals to return to the far side of the river.” As such, the district court finds that the agents’ decision to open the fence wasn’t justified:

The Defendants cannot justify cutting or moving the Plaintiff's fence whenever and wherever they find convenient based on a supposed need to access the river by both boat and foot so they may passively observe migrants crossing. Nor can they do so when the Defendants fail to direct migrants attempting to unlawfully enter the United States to return back across the border per longstanding, Supreme Court-sanctioned practice.

And here is the court’s explanation for why it thinks officers have this authority:

“[A]n alien who is detained shortly after unlawful entry cannot be said to have ‘effected an entry.’ Like an alien detained after arriving at a port of entry, an alien like respondent is ‘on the threshold.’” DHS v. Thuraissigiam, 140 S. Ct. 1959, 1982–83 (2020) (citations omitted); see also Leng May Ma v. Barber, 357 U.S. 185, 186–87 (1958). … The Defendants’ view of immigration enforcement would “create a perverse incentive to enter at an unlawful rather than a lawful location,” which is why the Supreme Court rejected it for a migrant who managed to “mak[e] it 25 yards into U.S. territory before he was caught.” Thuraissigiam, 140 S. Ct. at 1982.

The district court is wrong. The officers did not have the authority to force the migrants to turn back to Mexico.

The Thuraissigiam case concerned the constitutionality of “expedited removal” procedures that apply to migrants who are apprehended immediately after crossing the border. The Supreme Court emphasized that such migrants have the statutory right to seek asylum: “An alien subject to expedited removal thus has an opportunity at three levels to obtain an asylum hearing, and the applicant will obtain one unless the asylum officer, a supervisor, and an immigration judge all find that the applicant has not asserted a credible fear.” The Ninth Circuit held that this “expedited removal” procedure was unconstitutional because it didn’t provide enough process. The Supreme Court, per Justice Alito, reversed the Ninth Circuit’s decision, explaining that “an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute.” Mr. Thuraissigiam lost his case because “Congress provided the right to a ‘determin[ation]’ whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for asylum,’ and he was given that right.”

Thuraissigiam therefore establishes that the Border Patrol lacked authority to force the migrants to return to Mexico. This would have stripped them of their statutory rights that Thuraissigiam expressly recognized.

The district court also says this:

Federal officials can and historically do take steps to turn migrants on the threshold back across the border into Mexico. See, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 163 (1993) (finding that aliens could be repatriated “without giving them any opportunity to establish their qualifications as refugees”).

Like Thuraissigiam, Sale stands for the opposite proposition from what the district court claims. Sale emphasized that aliens who show up at the border may seek asylum: “Aliens arriving at the border … may seek asylum as a political refugee for whom removal to a particular country may threaten his life or freedom.” In Sale, the U.S. government intercepted boats packed with Haitian migrants outside of U.S. soil, and the question was whether rights that the Haitians would have enjoyed on U.S. soil also apply overseas. The language from Sale quoted by the district court appears in a discussion in which the Court explains that the government “had to choose between allowing Haitians into the United States for the screening process or repatriating them without giving them any opportunity to establish their qualifications as refugees.” In other words, the whole premise of Sale was that if the aliens did show up at the border, they would have had the opportunity to establish their qualifications as refugees.

The district court then says this:

Border Patrol itself assesses agents’ performance based on the number of migrants repelled, and thousands of migrants have, in fact, been “turned back” after crossing the Rio Grande. (ECF No. 37 at 66, 104.) The Defendants recently boasted their agents’ authority to “turn back” migrants on the threshold of the international boundary. See Press Release, U.S. Customs & Border Protection (June 1, 2023), (describing an incident on May 25, 2023, where Border Patrol agents were able to “turn [aliens] back south into Mexico” even after they “cross[ed] the maritime boundary line”). Publicly available records show that the Defendants regularly track incidents of successful “turn-backs” at the Border, including more than 5,000 “TBS”—i.e., “Turn Back South”—between October 2018 and March 2020. See USBP FOIA Documents at 22, 25, 30, 128-29, 136-54, available at (embedded in Zolan Kanno-Youngs, Armed Mexicans Were Smuggled in to Guard Border Wall, Whistle-Blowers Say, N.Y. TIMES (Dec. 7, 2020), ).

Once again, if you look at the authorities that the court is citing, it’s clear they’re saying the opposite of what the court attributes to them. The Press Release quoted by the district court does not say that Border Patrol agents were able to turn aliens back south to Mexico after they crossed the border. Instead, it says: “Agents responded and were able to apprehend four of the six swimmers, with the other two being able to turn back south into Mexico.” In other words, the agents chased them and tried to apprehend them (which would have involved bringing them into the United States for civil or criminal proceedings), and they eluded apprehension by turning back. Similarly, the FOIA documents cited by the court do not characterize “turn-backs” as successes, but as outcomes officers strive to prevent. See, for example, page 19 of this document: “1 app’d … attempting to TBS on the fence.” A migrant tried to turn back south, and the government caught him.

Why does all this matter? The district court finds that the officers acted so ineptly that their actions don’t qualify as the enforcement of federal immigration law—a finding that Texas would later rely on in the Supreme Court as the basis for preserving the Fifth Circuit’s injunction. But that finding rests on the fundamentally incorrect premise that the officers had the alternative option of forcing the migrants back across the border. So I don’t see how it can justify an injunction.

OK, you might say, maybe the officers couldn’t force the migrants to turn back south, but couldn’t the officers have let them turn back south on their own? Did the officers really have to cut the fence so as to bring them into the country?

Well, for one, it’s the Border Patrol’s job to apprehend illegal immigrants. So I’m not sure it would be responsible for the Border Patrol officials to simply stare at them and hope they turn back. More importantly, I see zero indication that these migrants would have turned back. Crucially, according to the district court’s findings, there was already a hole in the fence about 15 feet from where the officers were cutting the new hole. And presumably, if there’s a hole 15 feet away, there have to be other holes nearby too. In that context, it makes sense for the officers to conclude that the best-case scenario was to cut through the wire to ensure that all the migrants would be directed to the processing facility in an orderly fashion, rather than standing passively while they waited for the migrants to fight their way through the existing holes in the fence. At a minimum, the officers’ decision wasn’t so unreasonable that they should be deemed to not have been enforcing federal immigration law at all.

The district court also rejects the officers’ argument that they were performing the law enforcement function of “inspecting,” “detaining,” and “apprehending” the migrants. The court first thinks that the officers’ “inspection” was excessively cursory because it involved “no warning against criminal violation of immigration law; no attempt to prevent the same; no direction to enter at a lawful port of entry; no questioning; no document requests; and no search for drugs or weapons.” It also thinks that Border Patrol officials on boats on the other side of the fence could have performed this “inspection” without cutting the fence.

This is unreasonable. “Inspection” of a migrant isn’t just a matter of patting him down for weapons. An agent has to, among other things, assess the migrants’ documents and check whether the migrant has a criminal history. You need a computer to do these things. There was a processing facility, a mile up the road, set up for this specific purpose. To me, it is obvious that a Border Patrol official carries out the statutory duty of “inspecting” an immigrant when he causes the alien to go to the facility designed to carry out that inspection.

But the district court thinks that the officers didn’t do a good enough job ensuring that the migrants would actually reach the processing facility. According to the district court, if the officers took appropriate steps to ensure that the migrants actually went where they were supposed to go, this might count as “apprehending” or “detaining” the aliens, which are law enforcement functions the Border Patrol agents are authorized to carry out. The court thinks the officers didn’t do this. There was apparently a one-mile road from the riverbank to the processing facility, with the concertina fence on one side and a different fence on the other side, and the court thinks the migrants were free to hop the fence. In the district court’s view, “[b]lind trust that migrants who have just been seen criminally violating one boundary will respect barriers along the road toward a processing center constitutes neither ‘apprehension’ nor ‘detention.’”

Indeed, the district court is convinced that thousands of migrants hopped the fence that day. This is based on “testimony that some 4,555 migrants entered during this incident, but only 2,680 presented themselves for processing that day at the Eagle Pass South Border Patrol Station.”

I’m not persuaded. No witness was able to testify based on personal knowledge that “4,555 migrants entered during this incident.” Instead, Texas’s witness—described as the “Border Czar for the State of Texas”—says that some unspecified Texas National Guardsman gave him that number. Are we supposed to believe that this Texas National Guardsman was able to count up to this precise number during this chaotic incident? Meanwhile, there was testimony at trial that it often takes several days to process detainees, making the number of detainees processed that day completely irrelevant.

Normally, one is not supposed to question a district court’s factual findings. But these ones bother me. The district court is making the officers out to be completely incompetent—sending the migrants on their merry way, totally oblivious to the fact that thousands of them are hopping the fence. The officers insist that there were agents stationed along the road and no one ever saw any migrants escape. From my perspective, a conclusion that officers were “culpable and duplicitous” should rest on more than a hearsay statement from an unidentified Texan with a photographic memory.

More generally, I find it weird that the court is so critical of the officers’ conduct, but nonetheless finds that there’s insufficient evidence of a policy attributable to the agency. So it’s apparently the officers on the ground who were “culpable and duplicitous.” For example, the government offers the testimony of Mario Trevino, the Deputy Patrol Agent in Charge for the U.S. Border Patrol at the Eagle Pass South Station, and the district court all but calls him a liar—“Agent Trevino’s testimony is not lent great weight by the Court given his evasive answers and demeanor.”

I don’t get it. Why would individual Border Patrol employees want to undermine the U.S. immigration system? I get the narrative that Joe Biden and Alejandro Mayorkas are Weak On The Border, but Mario Trevino? I don’t exactly know how the Deputy Patrol Agent in Charge for the U.S. Border Patrol at the Eagle Pass South Station fills his day, but that sounds several rungs down from Alejandro Mayorkas. It’s probably a local citizen who decided to pursue a career in law enforcement. Why would he randomly decide to engage in a “culpable and duplicitous” scheme of intentionally facilitating illegal immigration?

The Fifth Circuit’s gonna Fifth Circuit

On to the Fifth Circuit. Texas moves for an injunction pending appeal, and it is quickly granted. The injunction says: “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,” with an exception for medical emergencies.

The Fifth Circuit concludes that, contrary to the district court’s finding, sovereign immunity does not bar Texas’s trespass-to-chattels tort claim. As mentioned above, this is a close issue that could go either way.

Next, it finds in one paragraph that the government lacks “intergovernmental immunity,” a doctrine that applies to state laws purporting to regulate the United States. According to the court, Texas tort law doesn’t directly regulate or discriminate against the United States, so the doctrine doesn’t apply. The court also finds that a jurisdictional-immunity statute under the INA doesn’t apply.

And that’s pretty much it. The court finds that cutting the fence is a tort, so Texas is entitled to an injunction to stop the tort. It helpfully cites a case from 1897 observing that “[d]ue protection of the rights of property has been regarded as a vital principle of republican institutions.”

The problem with the Fifth Circuit’s decision is that it doesn’t actually address the government’s argument. In its one-paragraph discussion of intergovernmental immunity, the court declares, without explanation, that Texas law doesn’t “regulate the United States directly.” But the government contends that it has a statutory right to cut the fence for purposes of enforcing federal immigration law. Texas tort law is banning federal law enforcement officers from doing what they claim they have a statutory right to do, which sure sounds like regulating the United States directly.

Texas, of course, responds that the federal government can’t cut the fence because it isn’t enforcing federal immigration law. But the Fifth Circuit doesn’t even assess whether this argument is correct. The court just grants the injunction without discussing this issue.

Should an injunction have been granted? I’ve already explained my disagreement with the district court’s findings. But factual findings are entitled to an extreme degree of deference on appeal.

I think there’s a good case that the findings are either clearly erroneous or premised on an error of law. But let’s assume for the sake of argument that the district court made pure findings of fact that the government wasn’t enforcing the INA on September 20, which are entitled to deference on appeal. In other words, let’s assume that, for purposes of this case, the federal government wasn’t enforcing the INA when it cut the fence on September 20, but was instead passively letting illegal immigrants into the country.

Even if this is true, an injunction still isn’t warranted. I think this is a clear-cut issue—much more clear-cut than any gripe I have with the district court’s findings.

Why not? Because it’s a structural injunction of the sort that courts shouldn’t grant.

Here’s the problem. Usually, when a court issues an injunction, it bans a party from engaging in future conduct that would violate the law. So, for example, if a rule is premised on an incorrect interpretation of a statute, a court can enjoin the agency from enforcing the rule, because any enforcement of the rule would be illegal.

Here, though, the parties appear to agree that cutting the fence is sometimes permissible for law-enforcement purposes. Under 8 U.S.C. § 1357(a)(3), officers have the right to access private property within 25 miles of the border for purposes of enforcing federal immigration law. If in fact cutting the fence is needed to enforce federal immigration law, federal law gives the officer the right to cut the fence. Indeed, the district court acknowledges this point: “DHS has long made use of this provision to move or cut privately owned fencing within 25 miles of the international border when exigencies arise.”

Yet, the Fifth Circuit’s injunction says that the Border Patrol can never cut the fence near Eagle Pass unless there’s a medical emergency. Thus, even if a Border Patrol agent determines that cutting the fence is necessary to apprehend an illegal immigrant and that determination is correct, the injunction still bars the Border Patrol agent from cutting the fence. The Fifth Circuit apparently thinks that in view of the September 20 incident, the Border Patrol agents at Eagle Pass are so irredeemably untrustworthy that they’re no longer permitted to make case-by-case assessments about whether cutting the fence is needed to enforce federal immigration law.

In other words, it’s a structural injunction. It’s analogous to the injunctions that courts used to issue against prisons and police departments. Courts would say that correctional officers or police officers can’t be trusted to exercise their discretion responsibly, warranting broad prophylactic injunctions. That’s essentially what the Fifth Circuit is doing here: it is saying that Border Patrol officials are doing a bad job at the border, so they can never cut the fence for law enforcement purposes.

Structural injunctions against prisons and police departments are mostly gone, and for good reason. Executive Branch officials enjoy a presumption of regularity— courts presume that they will follow the law. Even if a Border Patrol official falls down on the job once, a court cannot assume he will do so again in the future, and strip him of the ability to do his job. In other words, judges should trust the Border Patrol, even if they believe the Border Patrol was incompetent in the past and believe, in their hearts, that it will be incompetent again in the future.

This trust doesn’t reflect judicial naivete. Instead it reflects respect for the separation of powers. The Executive Branch enforces the law; the Judicial Branch determines what the law is. Judges are authorized to hold a hearing and determine whether Executive Branch officials were properly exercising their duties in the past, but they’re generally not authorized to seize discretionary authority vested in the Executive Branch. Such injunctions might be warranted in extreme cases of institutional dysfunction, but the district court’s findings regarding the September 20 incident don’t come close to meeting that threshold.

Structural injunctions also create the risk of transforming judicial fact-finding into political decision-making. One of my favorite Scalia dissents is in Brown v. Plata, 563 U.S. 493 (2011). In that case, a three-judge district court composed of Judge Reinhardt, the ultimate liberal lion, as well as two like-minded district judges, issued an order requiring California to release 40,000 prisoners to reduce prison overcrowding. As part of that order, the three-judge court made a factual finding that releasing 40,000 prisoners would not adversely affect public safety. It is easy to make fun of that particular finding, but as Justice Scalia wisely explained, that finding illustrates the problem with structural injunctions:

But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California's penal system.

It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.

Those words could be written for this case. The first paragraph of Texas’s opposition to the government’s Supreme Court application states:

Defendants have claimed authority to destroy property that belongs to someone else based on their assurance that doing so is necessary to enforce federal immigration laws. Yet Defendants all but ignore the district court’s factual findings demonstrating that the premise of their argument is wrong: “The evidence presented … amply demonstrates the utter failure of the Defendants to deter, prevent, and halt unlawful entry into the United States.” App.47a.

In other words, Texas’s theory is that the district court made the “factual finding” that the government isn’t adequately defending the border, justifying an injunction that would prohibit the federal government from cutting the fence for law enforcement purposes under any circumstances. This type of reasoning was flawed when Judge Reinhardt relied on it, and it’s still flawed when Texas relies on it.

Why?!?!

As noted above, the government asked the Supreme Court to vacate the Fifth Circuit’s injunction. Texas opposed, relying heavily on the district court’s finding that the Border Patrol wasn’t adequately defending the border. The Supreme Court vacated the injunction by a 5-4 vote. Ordinarily I’d comment on the Supreme Court’s reasoning, but it didn’t offer any reasoning.

On a final note, I would like to register my respectful disagreement with the Supreme Court’s practice of issuing highly consequential orders of this nature without any explanation of its reasoning. The Court issued an order altering the status quo over the public dissents of four Justices. Shouldn’t the Court tell us why?

I view the practice of judges providing reasoned explanations for decisions as a fundamental component of due process.  It’s right up there with notice, a hearing, and an impartial adjudicator.  First, providing reasoned explanations serves a disciplining function that improves the quality of judicial decisionmaking.  Second, it engenders public confidence in the legal system—people may disagree with Supreme Court decisions, but at least they will know that the decisions are based on reason rather than caprice.  Third, it ensures that litigants are treated with dignity by allowing them to understand why things are happening to them.

I’m not suggesting that explanations are always warranted—it makes sense, for example, that the Court doesn’t explain its purely discretionary decisions to deny certiorari. But in cases like this, where a sharply divided Court is vacating a lower-court order, it would be nice to know why.

The Supreme Court’s order vacating the Fifth Circuit’s injunction has been met with an unusual degree of public fury, and I think that’s partially attributable to the lack of an explanation.  Think of things from Texas’s perspective.  It got a district court order making specific factual findings that federal officers weren’t enforcing immigration law and were destroying Texas’s property without legal justification.  It got a Fifth Circuit order granting an injunction based on a detailed legal analysis.  And then— BONK.  The Supreme Court hurls a judicial thunderbolt that wipes out the injunction and lets the feds start cutting the fence again, with no explanation.  If I was Texas, I’d be furious too.

On a more meta level, I’d love to see the Supreme Court issue a reasoned explanation for its lack of reasoned explanations.  And, if we won’t get that, perhaps a reasoned explanation for why we don’t get a reasoned explanation for the lack of reasoned explanations.  Maybe someday.