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Todd J. Gillman and Aarón Torres
The Dallas Morning News

Washington (The Dallas Morning News) – A federal appeals court will hear arguments Thursday morning on whether Texas can keep the 1,000-foot floating barrier it installed in July to block migrants from crossing the Rio Grande near Eagle Pass. online news

A lower court ordered the barrier removed last month. The judge rejected Gov. Greg Abbott’s contention that because Texas is under “invasion” by migrants and drug cartels, the state has broad legal authority to plug holes left by President Joe Biden’s failures.

“Given the federal government’s representations that it would secure the border if only it could, the U.S. should not object to Texas’ picking up some of the slack. Yet it has,” the state argued in its brief to the New Orleans-based 5th Circuit U.S. Court of Appeals.

The appeals court let the state keep the controversial barrier pending its review of the clash.

Both the Biden administration and the Mexican government vehemently object to the $850,000 string of bright orange buoys, which migrant advocates call a potential “death trap.”

Whatever the complaints about border security lapses, only the federal government can declare an invasion and wage war, the Justice Department argued in its pre-hearing brief. And invasion, as mentioned in the Constitution, “is not irregular migration or the alleged underenforcement of laws against illegal, transboundary activity by private, non-state actors.”

The barrier is part of Abbott’s Operation Lone Star, which has included deployments of national guard and state troopers and cost Texas taxpayers roughly $10 billion over two years.

The operation “has filled the gap left by the U.S.’s dereliction of duty: It takes lawful steps to protect Texas, its residents, and Americans everywhere from the sudden influx of hostile non-state actors. And there is no doubt the buoys have slowed the flood of criminal activity,” the state argued in its appellate brief.

Tens of thousands of migrants crossed into Eagle Pass in September. The huge spike prompted the mayor to declare an emergency, and suggested the barrier funneled people to other crossing points without stemming the overall flow.

That itself is a desired outcome, though, and part of the philosophy behind the border wall because if remote areas are inaccessible, Border Patrol can concentrate staff at ports of entry and cities.

The three-judge panel that will hear the argument includes Judge Don Willett, who served as a chief counsel to Abbott when the governor was attorney general.

Willett later joined the Texas Supreme Court. President Donald Trump named him to the 5th Circuit in 2017.

The 5th Circuit handles cases from Texas, Louisiana and Mississippi and is among the nation’s most conservative appeals courts, though Democratic presidents named the other two judges on the panel that will hear the buoys case.

‘Invasion’

Texas has invoked a right to “self-defense” under a provision in the U.S. Constitution that authorizes states to “engage in war” in case of an invasion – in this case, “invasion” by migrants and drug cartels.

A group of 15 states led by Republicans – including Florida, where Gov. Ron DeSantis is running for president – urged the appeals court to side with Texas.

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“The federal government has lost operational control of the southern border,” argued the coalition led by Kansas attorney general Kris Kobach, a prominent advocate of immigration restrictions. “A flood of illegal immigration…has brought with it crime, human trafficking, and hundreds of thousands of fentanyl deaths…. In both scope and effect, the wave of illegal migrants pouring across the border is like an invasion. Texas is at ground zero of this invasion.”

The Justice Department disagrees, arguing that states have only “limited, temporary” emergency authority in case of an attack – and criminal activity doesn’t count.

The self-defense clause addresses “the power to engage in war—not to build structures,” the federal government argues. And while Texas portrays the situation as an invasion, it “does not assert and cannot establish that it is engaging in `war,’ or that it could do so in these circumstances.”
Texas lost the self-defense argument in lower court.

U.S. District Judge David Ezra of Austin, named to the bench by President Ronald Reagan, a Republican, noted the Constitution gives the federal government alone “the authority to recognize and respond to invasions.”

By Texas’ logic, any state could declare it has been invaded and wage war without oversight, he wrote in a 42-page ruling Sept. 6. “Such a claim is breathtaking,”

Texas isn’t the first state to equate illegal immigration with “invasion.”

No federal appeals court has bought the assertion.

The U.S. Supreme Court hasn’t directly addressed the issue.

Abbott is hoping the justices use the buoys case to affirm his position, which hinges on an understanding of “invasion” that goes far beyond armed hostilities with a foreign country.

Navigable

The court fight hinges in part on an 1899 law called the Rivers and Harbors Act, which prohibits construction in a navigable river without federal permission.

“The contested stretch of ankle-deep water is not commercially `navigable,’ so the” U.S. Army Corps of Engineers “lacks jurisdiction,” Texas contends in its Sept. 21 filing.

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The state also argues it needs no approval for floating spheres that are temporary and easily moved in a matter of days, using heavy equipment, as the state did when an aerial survey showed most of the barrier initially placed on the Mexican side of the border.

The trial judge scoffed at that, noting that while an individual buoy might be easily moved, that’s not what Texas installed.

The disputed barrier comprises a continuous 1,000-foot string of 4-foot spheres chained tightly together, with serrated disks between each and a 2-foot underwater mesh to block divers, tethered to 143 submerged concrete blocks that weigh a combined 140 tons.

The district judge in Austin ruled the barrier and its submerged anchor blocks “a serious risk to watercraft of any kind” like the rocks, sand bars and other hidden obstacles.

There’s no dispute that so far inland from the Gulf of Mexico, the Rio Grande is far too shallow for cargo ships and other large vessels.

“It is hard to obstruct commercial navigation that does not yet exist,” Texas argues, adding that smuggling is the only cross-river commerce.
Still, the federal government has long deemed the Rio Grande navigable for purposes of the law.

The Justice Department cites cases from 1888 and 1900 involving ferry companies operating between Eagle Pass and Piedras Negras, its Mexican neighbor. It also cites treaties, letters and other evidence dating to the mid-19th century showing that historically, the Rio Grande has been deemed navigable even where it’s shallow enough to wade across.

The U.S. Army Corps of Engineers deemed the river navigable for legal purposes in 1950. In 1975 the corps determined a long stretch that includes Eagle Pass “is navigable during periods of sufficient flow by shallow draft craft, such as airboats,” according to an affidavit from a corps official in Fort Worth who handles permit requests, Joseph Shelnutt.

The state argues that small boats can easily get around the barrier by going to one end or the other.

The Justice Department says that proves its point – that the barrier prevents cross-river navigation – a point the state refutes by pointing out that “bank-to-bank traffic between Mexico and Texas is illegal.”

©2023 The Dallas Morning News. Distributed by Tribune Content Agency, LLC.

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