It is not just politicians who are engaged in this false, hyperbolic statements. Journalists and purported experts are doing it too, such as those who claim that Texas is “defying” the Supreme Court by continuing to put up c-wire on state and private land near the border with Mexico. According to these accounts, because the Supreme Court lifted an injunction that barred the federal government from removing c-wire where necessary for immigration enforcement activities, Texas is flouting the Supreme Court by continuing to place c-wire on state and private property. This is not true either.
In the relevant case, Department of Homeland Security v. Texas, Texas is suing the federal government, in tort, for the destruction of state property (c-wire barriers and the like). The U.S. Court of Appeals for the Fifth Circuit enjoined the federal government from taking additional actions that remove or destroy c-wire barriers on state and private land pending additional proceedings. Among other things, the Fifth Circuit concluded Texas would be likely to show the federal government had waived its sovereign immunity under 5 U.S.C. Section 702.
All the Supreme Court did (in this order) is eliminate this injunction. It did not rule on—indeed, it was not called to rule upon—the lawfulness of anything Texas is doing. Nothing in what the Supreme Court did told Texas to take or refrain from any action.
R&I-Rawr
DGM
Article URL : https://reason.com/volokh/2024/01/29/no-texas-has-not-defied-the-supreme-court/