Appeals court rules Texas can temporarily keep buoys
WASHINGTON — A federal appeals court issued a brief order Tuesday allowing Texas to keep its controversial migrantblocking buoys in the Rio Grande, for now.
The ruling means the 1,000feet long barrier near Eagle Pass does not have to be removed by Friday as ordered last week by a lower court in Austin. The New Orleans-based 5th U.S. Circuit Court of Appeals halted that ruling a day later pending further review.
Tuesday’s order extends that stay, with the appeals court telling the Justice Department and the state it will schedule oral arguments as soon as possible.
Texas Gov. Greg Abbott has expressed hope the case reaches the U.S. Supreme Court, giving the justices the chance to take another look at whether states can treat illegal immigration as an “invasion” and invoke their constitutional self-defense rights.
Abbott openly defied the U.S. government by installing the barrier in July. Since then he has shrugged aside outrage from Mexico and the Justice Department’s contentions that the buoys violate federal law and international treaty.
The three-term Republican has made border security a top priority, directing nearly $10 billion to Operation Lone Star, the state initiative that has included deployments of National Guard and state troopers.
He has repeatedly butted heads with the White House and accused President Joe Biden of failing to do his job in enforcing federal immigration laws.
Mexican President Andrés Manuel López Obrador has railed against Abbott. Democrats and migrant advocates depict the “death buoys” as part of a menu of cruel and inhumane measures Abbott has directed.
In court, Texas has argued that it is free to ignore a federal ban on river construction without permission because the rule only applies in navigable waterways, and because the state has a right to self-defense in case of “invasion” — in this case, an invasion of migrants and drug smugglers.
Federal courts have repeatedly rejected states’ claims equating migration to an invasion of the sort referred to in the U.S. Constitution.
U.S. District Court Judge David Ezra of Austin, a Reagan appointee, who last Wednesday gave Texas until Friday Sept. 15 to remove the barrier, shot down the invasion claim.
In a filing Monday with the appeals court, the Justice Department highlighted the use of “nearly 140 tons of concrete installed with heavy machinery and anchoring the system to the riverbed” — challenging the state’s assertion the barrier is only temporary.
Abbott argued that “buoys” by definition aren’t the sort of permanent installation covered by a federal law from 1899 that forbids unauthorized construction in U.S. waterways.
The Justice Department also pointed to a contradiction in Texas’s arguments — that the barrier is small enough to be legally insignificant, yet it has stopped smuggling and illegal crossings.
Texas failed to explain how the barrier “can possibly be as effective as Texas claims” while “its buoys occupy a ‘de minimis’ space’ in the Rio Grande,” DOJ argued.
The buoys are 4-foot spheres bound together by heavy cable to create an unbroken barrier. Sharp-toothed disks are between each buoy and a submerged steel mesh blocks divers. Boats would have to go to the far end to get to the other side.