Texas can keep anti-migrant buoys in Rio Grande for now, 5th Circuit appeals court says

WASHINGTON — A federal appeals court has issued a brief order allowing Texas to keep its controversial migrant-blocking buoys in the Rio Grande, for now.

The order means the 1,000-feet 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.

The latest order, entered on the case docket Monday, extends that stay, with the appeals court telling the Justice Department and the state it will schedule oral arguments as soon as possible. As of Tuesday night, no hearing had been set.

Texas Gov. Greg Abbott has expressed hope that 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 troops 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 strong terms.

Under Texas’s logic, he wrote in a 42-page ruling, a state could declare an invasion and wage war without any oversight, despite the fact that the Constitution reserves matters of national security, warmaking and immigration policy to the federal government alone.

“Such a claim is breathtaking,” the judge wrote.

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 buoys prevent illicit cross-border fording without obstructing river travel because they run with the current,” the state told the appeals court last week.

In a rebuttal filing Monday, 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.

The Justice Department noted that Texas maintains its barrier has stopped smuggling and illegal crossings while being too small to be legally significant. The DOJ called that a contradiction, with the state failing 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.”

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.

The company that sold the barrier to Texas for $850,000 markets it “the ideal countermeasure to human intrusion.”

As the Austin judge concluded, the DOJ argued, “if a ‘1,000-foot-long barrier of four-foot-spherical buoys, fastened directly underneath with two feet of stainless steel mesh and tethered via chains to heavy concrete blocks placed systematically on the river bed’ is not a structure built in the river, then ‘it is hard to imagine what would be.’ “

The state also says the 1899 Rivers and Harbors Act, or RHA, only applies to navigable rivers.

There’s no dispute the Rio Grande near Eagle Pass is shallow enough to walk across for much of the year. The state cited evidence showing that, from Roma to El Paso, a 1,000-mile stretch that includes Eagle Pass, the river is impassable for commercial boat traffic.

Still, it has long been deemed navigable for purposes of federal law and treaties with Mexico.

The district court sided with the DOJ in rejecting Texas’ defense on those grounds.

The lower court also pointed to the submerged concrete blocks that stabilize the buoys as exactly the sort of danger to vessels that federal law prohibits.

“The barrier is designed to obstruct cross-river navigation …, but Texas’s only argument is that its barrier avoids obstructing navigation ‘up and down the river’ because it lies parallel to the current,” the Justice Department told the appeals court. “Texas never explains why the orientation of the obstruction is relevant under the RHA.”