Texas Must Face Feds’ Suit Over Anti-Migrant Buoy Barrier

On Friday, April 26, 2024, U.S. District Judge David A. Ezra issued an order allowing the Biden administration’s lawsuit to proceed over Texas’ 1,000-foot barrier in the Rio Grande, which was installed to keep out migrants, after the judge ruled that the administration had plausibly alleged its domain over structures in navigable waters.

In issuing the order, Judge Ezra (who also issued an order earlier this year blocking Texas’ implementation of SB4) rejected Texas’ argument that Section 10 of the Rivers and Harbors Act (“RHA”), which prohibits obstructions in navigable waters without federal authorization, can only be enforced against people or corporations, not states.

“This court finds that Texas’s novel interpretation of the RHA would improperly transform Section 10 and make it unenforceable against those most likely to construct the structures for which the RHA requires congressional authorization,” Judge Ezra wrote.

For the claim under the RHA to survive Texas’ motion to dismiss, the federal government needed to show that the stretch of the Rio Grande where the buoy barrier is located near the town of Eagle Pass, Texas, is navigable. Judge Ezra said the government’s allegations in the July lawsuit passed muster.

While Texas has argued that there is insufficient evidence to show the river is navigable — a key requirement to bring a claim under the RHA — Judge Ezra noted that Congress acknowledged the navigability of the stretch of the Rio Grande at issue in the late 1890s when it authorized construction of the bridge over the river connecting Eagle Pass to the Mexican town of Piedras Negras.

The authorization required that the river’s navigation be maintained and gave federal courts jurisdiction over disputes arising from obstructions to the Rio Grande’s navigability, Judge Ezra noted. Other congressional authorization of electric wire and water pipe projects in the same area in 1890 also provided for redress in federal court if the construction impeded the Rio Grande’s navigability, he added.

Once Congress deems a waterway navigable, it remains so until and unless Congress declares otherwise, Judge Ezra said. “This court would have to either ignore or twist beyond recognition Supreme Court precedent to find the third-longest river in the United States, in the impacted section, unnavigable. This court will not engage in result-oriented jurisprudence,” the judge said.

Texas had also argued that it has a right to take measures to defend itself from an “invasion” of immigrants crossing the border from Mexico, including by installing the barrier in the Rio Grande. But Judge Ezra said accepting Texas’ argument that immigration at the southern border amounts to an invasion would defy decades of U.S. Supreme Court precedent holding that immigration enforcement is a purely federal endeavor.

“Texas may not claim self-defense from an invasion at the border to justify a long-term usurping of congressional authority. Texas must pursue its right and duty to protect the people of Texas through congressionally authorized means or appropriate state action. Texas is a sovereign state, not a sovereign country,” Judge Ezra wrote.

As noted above, this is the second time that Judge Ezra has rejected Texas’ argument that it has a right to defend itself from an invasion at the border. The judge also shot down that argument in separate litigation over SB4. In a February 29, 2024, decision blocking SB4 during litigation, Judge Ezra called Texas’ invasion argument “antithetical to the Constitution,” saying federal courts have “unequivocally rejected” the nullification of federal law and authority since the Civil War.

Judge Ezra had granted the Biden administration’s request for a preliminary injunction in the floating barrier suit on September 6,2024, an order that a split Fifth Circuit panel upheld. However, the full Fifth Circuit vacated the panel decision in January and agreed to review it. Oral arguments are scheduled for May 15.

The case is U.S. v. Abbott, Case No. 1:23-cv-00853, in the U.S. District Court for the Western District of Texas.

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