Court orders Texas to remove buoys from Rio Grande
WASHINGTON — In a blow to Gov. Greg Abbott, a federal appeals court ordered Texas on Friday to remove the border buoys the state installed near Eagle Pass to block migrants.
Abbott had turned to the conservative New Orleans-based 5th Circuit Court of Appeals, which temporarily blocked a lower court’s order three months ago finding that Texas had violated federal laws when it installed the 1,000-footlong barrier in June.
In a 2-1 ruling, the appeals court agreed with the Justice Department’s contention that the buoys violated an 1899 federal ban on construction in a navigable river without permission. The ruling noted testimony from state officials about the many hazards near Eagle Pass including sand bars and debris that make it “very difficult and dangerous” even for airboats to operate. That, the court said, makes the buoys an obstruction of the type banned by federal law.
Texas argued that an “invasion” by migrants and drug cartels gives the state sweeping constitutional authority to defend itself, and to ignore federal law and treaties with Mexico that forbid installation of barriers in the river, which serves as the southern border for the length of Texas.
Spokespeople for Abbott and the Texas Department of Public Safety did not immediately respond to questions asking if the state would comply.
State officials have said it would take several weeks and cost $300,000 to move the barrier — a chain of 4-foot buoys designed to deter climbing, with serrated disks between each and a submerged metal mesh to block anyone from swimming underneath.
U.S. Rep. Joaquin Castro, a Texas Democrat, called the buoys “illegal and dangerous. I ... look forward to seeing these death traps removed from the Rio Grande.”
Abbott has vowed to take the case to the Supreme Court, hoping the 6-3 conservative majority will overturn decades of precedent rejecting the proposition that states have a role in immigration enforcement.
Texas is not the first state to assert that illegal immigration counts as an invasion that triggers a state’s self-defense authority under the U.S. Constitution. Federal courts have long rejected the argument.
The lower court judge in Austin deemed the assertion “breathtaking.”
The appeals court tread a more nuanced path: Removing the buoys maintains the status quo — that is, a border without a state-installed buoy barrier — while Texas tries to persuade the federal courts it has the authority “to declare it is invaded and select its own means of waging war,” an assertion with enormous “constitutional implications.”
The Biden administration scoffed at Texas’ assertion that an “invasion” gives it leeway to do as it pleases at the border.
“Whether and when an ‘invasion’ occurs is a matter of foreign policy and national defense, which the Constitution specifically commits to the federal government,” the Justice Department argued.
Judges named to the bench by Democrats Jimmy Carter and Joe Biden sided against Texas in Friday’s ruling. The dissent came from Judge Don Willett, a Donald Trump appointee who previously served on the Texas Supreme Court.
Willett ignored the “invasion” argument, focusing mostly on whether the federal ban on use of a river can apply in a segment of the Rio Grande that is so clearly not navigable.
The Biden administration submitted a raft of historical evidence that, even if the river wasn’t actually used for commerce, it has long been treated as navigable by law and under the Treaty of Guadalupe Hidalgo, signed in 1848, when Mexico gave up its claims to Texas three years after statehood.
Willett argued that a river doesn’t become navigable just because laws or treaties refer to it as such.
He wrote that the federal government hasn’t proven the barrier has caused any harm, though he also said Texas has yet to prove it has saved lives, or deterred and reduced illegal crossings or drug smuggling, as Abbott said it would.
The barrier is part of Abbott’s $10 billion Operation Lone Star, which includes deployments of state troopers and National Guard and installation of razor wire.
Willett also questioned the majority’s finding the barrier must be moved to alleviate tensions with Mexico, noting the order only requires Texas to move it to its own bank while Mexico has demanded complete removal of the barrier from the river.
Part of Texas’ defense of the buoy barrier hinged on the assertion the 1899 federal law that bans unauthorized construction only applies to rivers wide and deep enough for shipping.
The site near Eagle Pass where the state installed a 1,000-foot floating barrier is 200 feet wide, ranging from “ankle-to-knee deep” to 4 feet deep near the midpoint.
“No commercial boats, barges, fishing boats, cargo ships or carriers, tankers, or other commercial vessels operate on this segment” and even if that part of the river were navigable, the state asserted, “the buoy system does not decrease the navigable capacity of the river.”
The appellate judges were skeptical of the state’s position during Oct. 5 oral arguments.
“Texas’ purpose for the structures is to block people from crossing the river. It’s to obstruct cross-river (movement). That’s their entire reason for being,” said Michael Gray, arguing on behalf of the Justice Department.
“That’s what they’re there for,” said Judge Carolyn Dineen King, a Carter appointee.
Texas also argued the barrier is only “temporary.” And it argued that the ban doesn’t apply because the buoys aren’t covered by a law that bans “any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any ... navigable river” without federal approval.
The 5th Circuit found the assertion “unconvincing.”
The barrier includes 143 submerged concrete anchor blocks that weigh a combined 140 tons, and state officials said moving it would take weeks and cost $300,000.
Texas also argued that even if the buoys do count as some sort of barrier, they cannot impede navigation because they run parallel to the banks, allowing boats to go up and down stream.