Federal judge rejects Texas’ migrant ‘invasion’ defense in border lawsuit
Austin, Texas — A federal judge on Tuesday brushed off Texas’ assertion that Gov. Greg Abbott has the right to install anti-migrant buoys in the Rio Grande because of a migrant “invasion.”
“This court is not going to delve into political questions,” U.S. District Judge David Ezra said after the initial hearing on the U.S. Justice Department’s lawsuit against Abbott.
The Biden administration is asking that Texas immediately remove existing buoys and not place any additional ones in the Rio Grande.
The hours-long hearing at the federal courthouse in Austin came almost a month after the Justice Department filed the lawsuit, and only days after Texas moved the buoys into U.S. territory after a survey by a bilateral agency found most of the barrier was in Mexican territory.
Ezra, who was appointed by former President Ronald Reagan, did not rule on the department’s request for preliminary injunction requiring the state to pull out the roughly 1,000 feet of buoys.
A ruling is not expected earlier than next week. Attorneys for Texas and the department have until Friday afternoon to submit written closing arguments.
On Tuesday, the judge appeared unreceptive to one of Texas’ core defenses for the buoys — that the state has authority to defend its sovereignty under the U.S. Constitution because there is an “invasion” by migrants and drug smugglers.
“We are here for purposes of determining whether this is a barrier to navigation, whether this is a navigable waterway,” Ezra said.
The Justice Department has accused Texas of ignoring federal permitting requirements before installing any kind of barrier on a navigable waterway. Under the Rivers and Harbors Act of 1899, the federal government controls navigable waterways.
The judge’s comment seemed to suggest he’ll rule narrowly on whether Texas has violated that law, rather than wading into how far states can go on enforcing federal immigration law.
Abbott announced in June that Texas would install the buoys. The Texas Department of Public Safety began laying them in the river at Eagle Pass in early July.
The marine barriers were the latest twist in Operation Lone Star, a $10 billion border initiative that Abbott launched more than two years ago.
In court filings, Texas said the section of the Rio Grande where the buoys were installed is not navigable because it is too shallow and therefore does fall under the 1899 law because it only applies if a body of water is wide and deep enough for shipping. During the hearing, though, attorneys for Texas did not say much about the river’s depth or navigability.