A federal judge ruled Wednesday that Texas must remove a 1,000-foot floating barrier in the Rio Grande by Sept. 15.
The barrier, meant to deter illegal immigration, was installed in July as part of Operation Lone Star, but immediately faced backlash from both Mexico and the Biden administration, which sued Texas that month arguing the federal government has sole jurisdiction over the Rio Grande.
In a 42-page ruling, [Judge David A.] Ezra, a Reagan appointee, found that the barrier violates the federal Rivers and Harbors Act by creating an obstruction in the river that makes it impossible to navigate.
Texas disagreed. In court documents, lawyers for Texas said the barrier doesn’t decrease the ability to navigate that portion of the Rio Grande.
They also defended the barrier as an enforcement tool, saying it was necessary to block migrants and drugs such as fentanyl from entering the state, arguing that the Biden administration’s immigration policies had failed to do so. A recent Wall Street Journal report found, however, that migrants weren’t deterred by the barrier—they just waded through the river right around it. Federal law-enforcement officials have also said that fentanyl is rarely smuggled into the U.S. by a person crossing the border illegally; it is nearly all driven in by U.S. citizens or other visitors with visas at legal ports of entry.
Texas also presented a more controversial and untested legal argument: that the U.S. Constitution allows states to defend their sovereignty in the case of a “foreign invasion.”
Ezra rejected that argument. “Whether Texas’ claim of ‘invasion’ is legitimate is a…political question” that can’t be decided by a court, he wrote.
“Gov. [Greg] Abbott announced that he was not ‘asking for permission’ for Operation Lone Star,” Ezra wrote. “Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.” (WSJ)
While the DOJ said it was “pleased” with the ruling, Abbott fired back within an hour of it posting, appealing to the U.S. Fifth Circuit Court of Appeals.
“Today’s court decision merely prolongs President Biden’s willful refusal to acknowledge that Texas is rightfully stepping up to do the job that he should have been doing all along,” his office said in a statement. “This ruling is incorrect and will be overturned on appeal. We will continue to utilize every strategy to secure the border, including deploying Texas National Guard solders and Department of Public Safety troopers and installing strategic barriers. Our battle to defend Texas’ sovereign authority to protect lives from the chaos caused by President Biden’s open border policies has only begun. Texas is prepared to take this fight all the way to the U.S. Supreme Court.”