`
`Aaron L. Nielson
`Solicitor General
`Aaron.Nielson@oag.texas.gov
`(512) 463-2100
`
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`Pos t Of fic e Bo x 12548 , Austin , Texa s 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • ww w.texasatto r neygeneral.go v
`March 21, 2025
`
`VIA CM/ECF
`
`Mr. Lyle W. Cayce, Clerk
`Court of Appeals for The Fifth Circuit
`600 S. Maestri Place
`New Orleans, LA 70130-3408
`
`Re: United States v. State of Texas, No. 24-50149
`
`Dear Mr. Cayce:
`
`Counsel submits this letter in respons e to the Court’s notice of February 11,
`2025, directing the parties to file a supplemental letter brief answering three
`questions about the district court’s jurisdiction and the parties’ continued positions
`on appeal.
`1. What jurisdiction, if any, does the district court have to clarify or modify the
`scope of the preliminary injunction in light of the Supreme Court’s decisions
`in Coinbase, Inc. v. Bielski , 599 U.S. 736 (2023) , and Griggs v. Provident
`Consumer Discount Co. , 459 U.S. 56 (1982) , which recognize the
`“longstanding tenet of American procedure” that an appeal “divests” the
`district court of jurisdiction?
`The district court lacked jurisdiction to issue an order modifying the preliminary
`injunction. Texas’s appeal of the preliminary injunction divested the court of
`jurisdiction over that order. No party requested the relief that the district court
`purported to award. And the modified relief clearly exceeds the scope of the actions
`brought by the federal government and the other plaintiffs. For these reasons, Texas
`had planned to move to vacate the modified injunction in the district court but chose
`to await doing so in light of the Court’s briefing order.
`Federal and state governments have independent authority to administer
`separate—and often overlapping—criminal codes. See, e.g., Gamble v. United States,
`Case: 24-50149 Document: 250 Page: 1 Date Filed: 03/21/2025
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`Letter to Mr. Cayce, Clerk
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`587 U.S. 678, 683–91 (2019) (discussing the separate sovereigns doctrine and
`“dozens of cases over 170 years” approving the operation of state criminal laws that
`overlap with federal criminal laws ). In 2023, to address an acknowledged border
`crisis, Texas enacted S.B.4 to create two state criminal offenses that mirror federal
`criminal offenses: Namely, S.B.4 amends Chapter 51 of the Texas Penal Code by
`making it a state crime to illegally enter or reenter Texas, just like it is a federal crime
`to illegally enter or reenter the United States.
`
`On December 19, 2023, the Las Americas Plaintiffs brought this facial pre-
`enforcement challenge to S.B.4 . See ECF 1, No. 1:23- cv-1537 (W.D. Tex.). On
`January 3, 2024, the federal government brought another facial challenge to the law.
`See ECF 1, No. 1:24-cv-8 (W.D. Tex.). Neither complaint identified a cause of action
`authorizing suit; instead, both complaints simply claimed that Texas’s new criminal
`laws were preempted by federal criminal laws and presumed upo n an unidentified
`“action in equity ” to press t hat claim. On January 31, 2024 , the district court
`consolidated the two cases . See ECF 45, No. 1:23-cv-1537. On February 29, 2024,
`the district court granted a preliminary injunction to both plaintiffs: “ IT IS
`ORDERED that the motions for preliminary injunctions, United States (Dkt. # 14)
`and Las Americas, (Dkt. # 33) are GRANTED .” ROA.591. It “enjoin[ed] the law
`in full” despite the severability clause. ROA.586. The same day, Texas appealed that
`preliminary injunction to this Court.
`Although the district court’s preliminary injunction remains pending before this
`Court, on January 31, 2025, the district court ordered the parties to appear for a
`conference in chambers. As the docket reflects, no party sought to modify or clarify
`the preliminary injunction. And no party requested such relief during the in-
`chambers conference. Nevertheless, the district court entered what it stylized as an
`“Order clarifying/modifying preliminary injunction issued on February 29, 2024.”
`ECF 77, No. 1:24-cv-8 (W.D. Tex. Jan. 31, 2025) (capitalization altered). The order
`says that it “clarifies/modifies its injunction” to “avoid any unintentional violation”
`of that injunction. Id. at 5. It also states, among other things, that: Texas personnel
`may assist federal personnel with “apprehension, arrest, and detention” of aliens;
`Texas personnel may not “engage in the actual deportation” of aliens; any federal -
`state collaboration on removal “would likely violate both Federal Immigration
`statutes and the United States Constitution.” Id. at 5–6.
`Although Texas appreciates the district court’s recognition that the State should
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`be allowed to assist in addressing the many serious problems at the State’s southern
`border, the district court’s order modifying the preliminary injunction is of no legal
`effect because that court had no jurisdiction to issue such an order.
`First, because Texas appealed the district court’s preliminary injunction, and
`that appeal is pending before the Court, the district court lacks jurisdiction to modify
`it. It is a “longstanding tenet of American procedure” that “[a]n appeal, including
`an interlocutory appeal, ‘divests the district court of its control over those aspects of
`the case involved in the appeal.’” Coinbase, 599 U.S. at 740 (quoting Griggs, 459 U.S.
`at 58). Or as this Court has previously explained, “once a party has filed an appeal of
`a district court’s order granting an injunction, the district court no longer has any
`authority to amend or vacate the order.” Coastal Corp. v. Tex. E. Corp., 869 F.2d 817,
`820 (5th Cir. 1989). A district court may exercise jurisdiction over the underlying
`merits in a case where a party has sought appellate review of an interlocutory order.
`See, e.g., Satanic Temple, Inc. v. HHSC, 79 F.4th 512, 514 (5th Cir. 2023). But it has
`no jurisdiction over the interlocutory order itself.
`Members of this panel have explained before why that is . See United States v.
`Lucero, 755 F. App’x 384, 386 (5th Cir. 2018) (per curiam) (Owen, C.J., Willett,
`Oldham, J.J.). “The filing of a notice of appeal is an event of jurisdictional
`significance.” Griggs, 459 U.S. at 58. And the matter that is the subject of that appeal
`“can exist only in one court at a time.” United States v. Willis, 76 F.4th 467, 471 (5th
`Cir. 2023) (quoting Lucero, 755 F. App’x at 386-87). Under the “one-court-at-a-time
`rule,” then, only this Court may exercise jurisdiction over the district court’s
`preliminary injunction. Id. At most, a district court deprived of jurisdiction by appeal
`may issue an “indicative ruling”: “Where a party asks a ‘district court for relief that
`it lacks authority to gran t because of an appeal that has been docketed and is
`pending,’ a district court may state ‘ that it would grant the motion ’ if it could. ”
`Lucero, 755 F. App’x at 387 (quoting Fed. R. App. Proc .
` 12(a) and discussing the
`indicative ruling doctrine).
`Second, no party requested the modified relief the district court purported to
`award here. District courts should not grant non-party injunctions. See, e.g., Labrador
`v. Poe ex rel. Poe, 144 S.Ct. 921, 923, 927 (2024) (Gorsuch, J., concurring in grant of
`stay); id. at 933 n.4 (Kavanaugh, J., concurring in grant of stay). By the same token,
`courts should not award relief that the parties before them never asked for : “Our
`system ‘is designed around the premise that [parties represented by competent
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`counsel] know what is best for them, and are responsible for advancing the facts and
`argument entitling them to relief .’” United States v. Sineneng -Smith, 590 U.S. 371,
`375–76 (2020) (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J.,
`concurring in part and concurring in judgment)) . Departing from that rule also
`“strays from equity’s traditional bounds .” Labrador, 144 S.Ct. at 927. A court’s
`ability to modify an injunction is triggered by “the request of the party who obtained
`equitable relief.” 11A Wright & Miller, Fed. Prac. & Proc. §2961 (3d ed.) (emphasis
`added); cf. Fed. R. Civ. P roc. 60(a), (b) (while court may correct a clerical mistake
`“on its own,” it may modify order “[o]n motion and just terms”).
`Third, setting aside the foregoing , the district court exc eeded the scope of this
`case in its modified injunction. Both sets of plaintiffs pressed the same theory in their
`complaints: F ederal criminal laws preempt overlapping state criminal laws. The
`district court’s original injunction addressed that question , albeit erroneously, by
`concluding that federal laws criminalizing illegal entry and reentry preempt state
`laws that criminalize the same conduct. That dispute concerns the authority of the
`United States and Texas to separately administer separate legal codes. The modified
`injunction, however, addresses a different matter: Whether and how two sovereigns
`may collaborate in administering a single criminal code.
`The district court suggests State personnel assisting federal officers in carrying
`out functions under the Immigration and Nationality Act could “unintentional[ly]
`violat[e]” the injunction. ECF 77 at 5. That suggestion is well outside the scope of
`this case or controversy and is incorrect. By agreeing to assist the United States in
`enforcing federal criminal law, Texas was never at risk of violating an injunction
`against enforcing state criminal law . Federal and state law permit such assistance.
`See, e.g., 8 U.S.C. §1103(a)(10); Tex. Gov’t Code §431.111.
` Because plaintiffs have
`not brought claims other than those relating to S.B.4, a judicial order modifying the
`district court’s preliminary injunction is not necessary for any State official to do
`anything other than enforce S.B.4. Put another way, that plaintiffs have instituted
`lawsuits challenging S.B.4’s enforcement as preempted does not give the federal
`judiciary a supervisory power over Texas’s law enforcement more generally.
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`Letter to Mr. Cayce, Clerk
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`2. What is the effect, if any, of President Trump’s Executive Orders 14,159 and
`14,165, which invite Federal -State cooperation in enforcing immigration
`laws and securing the border, and Governor Abbott’s Executive Orders GA-
`50-54, which direct Texas officials to assist in enforcing immigration laws
`and securing the border, on the distric t court’s preliminary injunction and
`on this appeal?
`President Trump’s Executive Orders and Proclamations confirm that this Court
`must vacate the preliminary injunction. A second, non -justiciable finding that
`invasion conditions exist shows that facial relief was always improper. A now-shared
`goal of immigration enforcement means the previous assessment of the equitable
`factors no longer holds. And the possibility of collaboration —now actualized —
`undercuts the district court’s preemption analysis based on enforcement priorities.
`The Constitution provides that the federal government “shall guarantee to every
`State in this Union a Republican Form of Government, and shall protect each of
`them against Invasion .” U.S. Const. art. IV, §4. In a letter on Inauguration Day ,
`Governor Abbott explicitly asked the President to exercise his federal self -defense
`authority under this provision based on the same conditions that justified the
`Governor’s invocation of self-defense authority under Article I, Section 10, Clause
`3: “The en masse entry into this country by violent criminals, known terrorists, and
`other hostile foreign actors murdering at will is an invasion, as FBI officials told
`Congress just last year. These criminals come in open defiance of our laws and often
`by force, outfitted with body armor, burying improvised explosive devices, and
`decorating trees with trophies from sexual assaults.” X, Greg Abbott
`(@GregAbbott_TX) (Jan. 20, 2025 , 12:04 PM),
`https://x.com/GregAbbott_TX/status/1881402347617972410.
`Later that day, the President echoed the Governor’s assessment. In Executive
`Order 14,165, President Trump recognized that the United States has been invaded:
`Over the last 4 years, the United States has endured a large-scale invasion at
`an unprecedented level. Millions of illegal aliens from nations and regions all
`around the world successfully entered the United States where they are now
`residing, including po tential terrorists, foreign spies, members of cartels,
`gangs, and violent transnational criminal organizations, and other hostile
`actors with malicious intent.
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`Securing Our Borders , Exec. Order No. 14,165, 90 Fed. Reg. 8,467 , 8,467 (Jan. 20,
`2025). In a Proclamation, the President determined that these conditions triggered
`the federal self-defense authority under Article IV, Section 4:
`By the power vested in me by the Constitution and the laws of the United
`States, I have determined that the current situation at the southern border
`qualifies as an invasion under Article IV, Section 4 of the Constitution of
`the United States. Accordingly, I am issuing this Proclamation based on
`my express and inherent powers in Article II of the Constitution of the
`United States, and in faithful execution of the immigration laws passed by
`the Congress, and suspending the physical entry of aliens involved i n an
`invasion into the United States across the southern border until I
`determine that the invasion has concluded.
`Guaranteeing the States Protection Against Invasion , Proc. No. 10,888 , 90 Fed. Reg.
`8,333, 8,335 (Jan. 20, 2025).
`These developments are highly relevant. First , Texas has explained why
`invocation of its own authority under the Self -Defense Clause, U.S. Const. art. I,
`§10, cl. 3, is a political question. See, e.g., Texas.Br.39; Post-Argument Supplemental
`En Banc Brief for Appellants at 1-5, United States v. Abbott, 110 F.4th 700 (5th Cir.
`2024) (No. 23- 50632), ECF 229 . Texas has also explained that plaintiffs’ facial
`challenges to S.B.4 fail because they are based on federal statutes and the U.S.
`Constitution trumps federal statutory law . See Texas.Br.39-40. At least some
`applications of S.B.4 are plainly lawful under the Self-Defense Clause—for example,
`against members of transnational cartels . See Texas.Br.36-40. That is sufficient to
`defeat a facial challenge becaus e plaintiffs cannot “establish that no set of
`circumstances exists under which the Act would be valid .” United States v. Salerno,
`481 U.S. 739, 745 (1987) (emphasis added). In other words, to prevail the plaintiffs
`would need to show S.B.4 is unlawful “in every application.” Texas R. 28(j) Letter,
`ECF 200 (citing United States v. Rahimi, 602 U.S. 680 (2024)).
`In this Court’s order denying a stay pending appeal, the Court disagreed that the
`Self-Defense Clause is relevant to the preemption issues here because—in the panel
`majority’s preliminary view—federal statutory law preempts S.B.4 notwithstanding
`Texas’s invocation of its own sovereign authority to defend itself. See United States
`v. Texas, 97 F.4th 268, 294–95 (5th Cir. 2024).
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`President Trump’s recognition of an invasion fundamentally undermines that
`analysis. As the federal government explained to the en banc Court in United States
`v. Abbott, 110 F.4th 700 (5th Cir. 2024), whether an invasion is occurring is a political
`question committed (in the federal government’s view) to the political branches of
`the federal government. See, e.g., Post-Argument Supplemental En Ban c Brief for
`Appellee at 2, No. 23 -50632, ECF 231 . Because the federal government now
`recognizes an invasion, including with respect to “potential terrorists, foreign spies,
`members of cartels, gangs, and violent transnational criminal organizations, and
`other hostile actors with malicious intent ,” 90 Fed. Reg. 8,467 at 8,467, applying
`S.B.4 to such individuals cannot be preempted. Accordingly, there is no basis for a
`facial challenge to S.B.4, thus defeating a preliminary injunction. Under the
`Constitution, valid federal statutory law applies “ unless” a State is “actually
`invaded.” U.S. Const. art. I, §10, cl. 3 . Given the President’s non -justiciable
`recognition of an invasion—in addition to the Governor’s recognition of the same—
`any statutory preemption argument necessarily fails with respect to at least some
`applications of S.B.4.
`Second, the district court’s balance of the remaining preliminary- injunction
`factors is no longer sustainable. The Supreme Court has declared that “the public
`interest demands effective measures to prevent the illegal entry of aliens at the
`Mexican border.” United States v. Brignoni -Ponce, 422 U.S. 873, 878 (1975). The
`district court, however, granted a preliminary injunction by focusing on alleged
`harms should S.B.4 be enforced. For example, the district court placed great weight
`on potential harms to “foreign rel ations.” ROA.508-10, 577. That analysis—based
`on a record compiled in February 2024—also no longer applies in light of Executive
`Orders 14,159 and 14 ,165, which radically change the relevant “foreign relations”
`landscape.
`The district court also suggested that enforcing S.B.4 would harm the federal
`government’s “ nonrefoulment obligations .” ROA.579-80. Yet the President
`declared in Executive Order 14,165 that the federal government “shall take all
`appropriate action to resume the Migrant Protection Protocols in all sectors along
`the southern border of the United States.” 90 Fed. Reg. 8,467 at 8,468. Again, this
`is a material change that nullifies the district court’s analysis. A ny concerns ,
`moreover, that enforcing S.B.4 could harm cooperation with the federal government
`fails because the federal government has announced that it intends to “[c]ooperat[e]
`fully with State and local law enforcement officials in enacting Federal -State
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`partnerships to enforce Federal immigration priorities .” Id. at 8,467. Each of these
`changes requires a rebalancing of the preliminary injunction factors.
`Similar analysis governs the district court’s evaluation of the equities and public
`interest factors. The federal government now agrees with Texas about the crisis at
`the border and advances a “policy” consistent with S.B.4. ROA.507-10. The district
`court’s analysis depend s on the federal government’s “determin[ation] that
`prosecution would frustrate federal policies.” ROA.515 (quoting Arizona v. United
`States, 567 U.S. 387 , 402 (2012)). But current federal policy is to “ prioritize the
`prosecution of offenses that relate to the borders of the United States,” 90 Fed. Reg.
`8,467 at 8,468-69, and especially those “ offenses related to the unauthorized entry
`or continued unauthorized presence of aliens in the United States,” Exec. Order No.
`14,159, 90 Fed. Reg. 8,443, 8,444 (Jan. 20, 2025). Indeed, Executive Order 14 ,159
`recognizes that “[m] any … aliens unlawfully within the United States present
`significant threats to national security and public safety, committing vile and heinous
`acts against innocent Americans. Others are engaged in hostile activities, including
`espionage, economic espionage, and preparations for terror-related activities.” Id. at
`8,443. In evaluating the public interest, the district court cannot disregard S.B.4’s
`obvious value in combating what the federal government agrees are “ significant
`threats to national security and public safety.” Id. The district court’s balancing—
`which rests on a presumption of a divergence of policy—thus no longer holds.
`Third, what was once a possibility of federal -state collaboration is now an
`actuality. Texas had previously highlighted how federal laws authorize collaboration
`with State personnel on immigration enforcement. See, e.g. , 8 U.S.C. § 1357(g). All
`that has changed is the federal government’s enforcement priorities: The district
`court once thought application of S.B.4 would “frustrate federal policies,” but now
`President Trump is determined to enforce the INA with the help of the States. The
`Supremacy Clause gives priority to federal laws, “not the criminal law enforcement
`priorities or preferences of federal officers .” Kansas v. Garcia, 589 U.S. 191, 212
`(2020). But that is what the district court’s preliminary injunction rests on —the
`shifting sand of enforcement priorities, not the actual text of immigration laws.
`The federal government now has expressly invited States to cooperate with it in
`enforcing federal immigration laws. Executive Order 14,159 directs the Secretary of
`Homeland Security “[t]o ensure [that] State and local law enforcement … can assist
`with the protection of the American people” by “ authoriz[ing] State and local law
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`enforcement officials … to perform the functions of immigration officers.” 90 Fed.
`Reg. 8,443 at 8,445. And Executive Order 14,165 declares that “[i]t is the policy of
`the United States ” to “enact[] Federal-State partnerships to enforce Federal
`immigration priorities.” 90 Fed. Reg. 8,467 at 8,467.
`In response to these and other actions by the President, Governor Abbott issued
`five Executive Orders aimed at assisting federal officials in regaining and maintaining
`border security. The orders specifically direct State agencies and officials to:
`• deploy “any physical infrastructure to improve operational security at the
`southern border,” Executive Order GA-50, 50 Tex. Reg. 807, 807 (2025);
`• eliminate “the operations of designated foreign terror organizations, like
`Mexican cartels … by sharing intelligence” with the federal government,
`Executive Order GA-51, 50 Tex. Reg. 807, 808 (2025);
`• lease facilities “suitable and available for use by Immigration and Customs
`Enforcement” to the federal government, Executive Order GA -52, 50
`Tex. Reg. 808, 809 (2025);
`• develop a plan to assist the federal government in securing the border,
`Executive Order GA-53, 50 Tex. Reg. 809, 810 (2025); and
`• “assist federal actors … with carrying out functions under federal
`immigration laws ,” Executive Order GA -54, 50 Tex. Reg. 810, 810
`(2025).
`Consistent with this last order, the Governor entered into a Memorandum of
`Understanding with U.S. Customs and Border Protection authorizing Texas
`National Guard soldiers to investigate, arrest, and transport illegal aliens . That
`includes transport “for the purposes of removal and/or repatriation .” CBP-TNG
`MOU art. V (Jan. 31, 2025); see also X, Ali Bradley (@AliBradleyTV) (Feb. 2, 2025,
`9:29 AM), https://x.com/AliBradleyTV/status/1886436756741877882 (attaching
`memorandum). Applying S.B.4 is one additional way that Texas personnel may help
`federal officers regain and maintain operational control of the border.
`To be clear, unless the Court orders the district court to dismiss this litigation
`outright, Texas respectfully urges the Court to also address the merits of the district
`court’s preemption analysis rather than simply vacate the preliminary injunction on
`the grounds that the balancing of the relevant factors must be redone. Instruction
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`from this Court with respect to the merits will greatly expedite resol ving this
`litigation. But under no circumstances can the Court affirm the district court’s
`preliminary injunction given President Trump’s recent Executive Orders.
`3. Since the recent change in administration, have the parties’ positions on any
`issues in the appeal changed?
`Texas’s arguments have no t changed. The district court’s expansive
`understanding of Arizona v. United States , 567 U.S. 387 (2012), remains incorrect,
`particularly after Kansas v. Garcia, 589 U.S. 191 (2020). See Texas.Br.26, 42-43. The
`district court’s expansive view of organizational standing also remains incorrect,
`especially after FDA v. Alliance for Hippocratic Medicine , 602 U.S. 367 (2024). See
`Texas R. 28(j) Letter, ECF 193 . The district court’s approach to facial challenges
`also fails in light of recent Su preme Court decisions in Rahimi and Moody v.
`NetChoice, LLC, 603 U.S. 707 (2024). See Texas R. 28(j) Letter, ECF 200. And its
`embrace of a freewheeling “action in equity” is plainly wrong . A change in
`presidential administration does not undermine the rule that Congress alone creates
`federal causes of action, and that the federal government lacks one here. As Texas
`explained in response to the Court’s prior request for supplemental briefing,
`hundreds of federal statutes would be superfluous if the federal government could
`sue without an express statutory cause of action. See Texas.Supp.Br.1-5, ECF No.
`179.
`Recent changes now only confirm there are exceedingly good reason s to revisit
`many of this Court’s prior conclusions. In its stay opinion, this Court : rested
`jurisdiction exclusively on the federal government’s standing to sue, Texas, 97 F.4th
`at 278; found that the federal government had an implied cause of action based on
`impacts “to foreign policy and relations with other countries, as well as its authority
`over immigration ,” id; based a finding of field preemption on “the [ federal]
`Executive’s decision not to pursue either civilly or criminally the very noncitizens ”
`who violate the INA and not to request “Texas’s assistance under various statutes,”
`id. at 281, 283; based a finding of conflict preemption on the notion that “the United
`States would have no voice in the matter” about punishment under S.B.4 “ before
`the federal government has made a decision” whether an individual entered illegally
`or should be permitted to stay, id. at 291; rejected Texas’s defense based on the idea
`that “federal statutes addressing matters such as noncitizen entry and removal are
`still supreme” if the federal government does not think an invasion is occurring, id. at
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`295; and found equitable factors favored an injunction based on supposed foreign
`relations complications for the federal government, like the risk of “taking the United
`States out of compliance with its treaty obligations,” id. at 296.
`In sum, this Court’s stay analysis —at practically every step —turned on the
`presence and participation of the federal government as a plaintiff here. On Tuesday,
`March 18, 2025, however, the federal government voluntarily dismissed its case
`against Texas. See Notice of Voluntarily Dismissal, United States v. Texas, No. 1:24-
`cv-0008-DAE (W.D. Tex. Mar. 18, 2025).
`The federal government’s decision to abandon its challenge to S.B.4 warrants
`revisiting the stay panel’s conclusions or, at the very least, vacating the stay opinion.
`The premises of that decision have been undercut by the federal government’s
`departure. Under any other circumstance, this is precisely when a court would order
`vacatur under United States v. Munsingwear, Inc., 340 U.S. 36 (1950): A plaintiff who
`prevailed at an earlier stage of litigation voluntarily dismisses his claim and seeks to
`terminate the action as moot— all while the losing party is still seeking appellate
`review of his loss. See, e.g., Acheson Hotels, LLC v. Laufer , 601 U.S. 1, 4 –5 (2023)
`(vacating court of appeals opinion after plaintiff, who previously won, voluntarily
`dismissed her suit and filed suggestion of mootness) . “[V]acatur must be granted
`where mootness results from the unilateral action of the party who prevail ed in the
`lower court.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994).
`The presence of the other plaintiffs should not defeat that ordinary rule .
`Munsingwear vacatur principles are “rooted in equity.” 13C Wright & Miller, Fed.
`Prac. & Proc. §3533.10 (3d ed.). It would be inequitable to conclude that a defendant
`who suffered a loss at the hands of a plaintiff who later abandons its arguments must
`suffer permanently because of the happenstance of two cases being consolidated: The
`federal government is gone, the Las Americas plaintiffs lack standing , and the only
`remaining plaintiff seemingly factored into the court’s stay decision not at all.
`Vacatur plainly serves the public interest here, because th at decision has already
`been cited in ten cases , the very outcome Munsingwear is designed to prevent:
`Vacatur “is commonly utilized in precisely this situation to prevent a judgment,
`unreviewable because of mootness, from spawning any legal consequences.”
`Munsingwear, 340 U.S. at 41.
`Case: 24-50149 Document: 250 Page: 11 Date Filed: 03/21/2025
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`Letter to Mr. Cayce, Clerk
`Page 12
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`Pos t Of fic e Bo x 12548 , Austin , Texa s 7 8 7 1 1 - 2 5 4 8 • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • ww w.texasatto r neygeneral.go v
`Texas’s position remains the same, but the foundations of this Court’s stay
`decision have essentially disappeared . Given the federal government’s change of
`heart about the nature of the crisis at the border and its recent dismissal of its lawsuit
`against Texas, if this Court were to dismiss the remaining plaintiffs for lack of
`standing (as cases like Alliance for Hippocratic Medicine require), this litigation would
`end altogether. Challenges to S.B.4, if any, could be brought by individuals in as -
`applied litigation, which —“[f]or a host of good reasons” —is how litigation
`presumptively should occur. Moody, 603 U.S. at 723; see also id. (“facial challenges
`threaten to short circuit the democratic process by preventing duly enacted laws
`from being implemented in constitutional ways”) (quotation omitted).
`* * *
`The district court lacked jurisdiction to modify its preliminary injunction—and
`modification was not necessary anyway because nothing about an injunction
`enjoining S.B.4 enforcement prevents (or even could prevent) Texas from
`cooperating with the federal government under different legal authorities .
`Furthermore, changed circumstances confirm that the district court’s preliminary
`injunction must be vacated because there is no plausible basis for a facial injunction
`and, at a minimum, the district court’s balancing fails given significantly changed
`facts. The Court should allow Texas to enforce its own criminal laws, vacate the stay
`panel opinion, and order the district court to dismiss this litigation.
`Respectfully submitted,
`
` /s/ Aaron L. Nielson
` Aaron L. Nielson
` Counsel for the State of Texas
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`cc: All counsel of record (via CM/ECF)
`Ca