AUSTIN, Texas — Texas must remove floating border buoys by Friday, Sept. 15, and cannot install any similar structures in the Rio Grande without receiving proper approval, a federal judge wrote Wednesday in a scathing ruling criticizing Gov. Greg Abbott for ignoring federal laws.
U.S. District Judge David Ezra wrote that he expects the Justice Department to prevail in its civil suit against Abbott. The Biden administration argues that Texas violated a federal law that forbids unauthorized construction in navigable waterways.
Texas argued the rules didn’t apply because the barrier is in a part of the river too shallow to be navigable. The state also said it has the right to self-defense under the U.S. Constitution, in this case to protect itself against a migrant “invasion.”
Ezra disagreed.
Under Texas’s logic, he wrote in the 42-page ruling, a state could declare it has been invaded, then wage war as it sees fit “subject to no oversight.”
“Such a claim is breathtaking,” the judge wrote.
Texas filed an appeal shortly after the court order came down.
It was not immediately clear if that means the state will refuse to comply pending a ruling from the New Orleans-based Fifth U.S. Circuit Court of Appeals, one of the nation’s most conservative appellate courts.
“This ruling is incorrect and will be overturned on appeal,” Abbott said in a statement. “We will continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers.”
At the Justice Department, associate U.S. Attorney General Vanita Gupta said, “We are pleased that the court ruled that the barrier was unlawful and irreparably harms diplomatic relations, public safety, navigation, and the operations of federal agency officials in and around the Rio Grande.”
U.S. Rep. Joaquin Castro, D-San Antonio, who recently led a delegation of lawmakers to Eagle Pass, also embraced the ruling.
“Abbott knows his actions are illegal. I’m glad the court is forcing him to remove his death traps from the Rio Grande. He has endangered lives, damaged Texas’ working relationship with our largest trading partner and let politics rather than sensible policy dictate his actions,” he said.
Texas officials deny the barriers have been responsible for any drownings.
Abbott previously boasted that Texas was not “asking for permission” when it installed razor wire along 60 miles of border and the 1,000-foot floating barrier two miles downstream from Eagle Pass.
A spokesman for the Texas Department of Public Safety did not immediately respond to questions about whether it would comply with the court’s order.
“The Court has found that the United States is likely to succeed on the merits of its claim that Defendants have violated” the Rivers and Harbors Act of 1899, the judge wrote. “The Court also finds that Texas’s conduct irreparably harms the public safety, navigation, and the operations of federal agency officials in and around the Rio Grande.”
DPS installed the barrier in early July. An aerial survey by the joint U.S.-Mexico agency that controls access to the river found that 80% of the buoys were actually on the Mexican side of the border.
DOJ filed suit July 24.
Texas quietly moved the buoys to the American side.
At an hours-long hearing last week, Ezra rejected Texas’ assertion that a migrant “invasion” gives the state broad latitude to install anti-migrant defenses without federal permission.
His ruling Wednesday was scathing on this point,
Ezra, appointed by former President Ronald Reagan, said the case has to do with whether the buoys impede navigation on the Rio Grande, which the U.S. and Mexico share, and which serves as the international border for the length of Texas.
Attorneys for Texas argued the Justice Department had failed to prove the buoys affect navigability.
“And even if there were such evidence, Texas has clear constitutional authority to defend its territory against the invasion that Governor Abbott has declared,” the state said in a filing.
The judge scolded Texas for asking the court to “absolve” its violations of federal law because it disagrees with federal immigration policy.
Abbott has no authority, nor does any governor, the judge said, to declare an invasion has occurred.
“Several constitutional provisions assign the federal government — not states — the authority to recognize and respond to invasions,” the judge wrote, and “courts of appeals have uniformly declined to consider whether and when an ‘invasion’ occurs because of illegal immigration.”
Under the Constitution, such “matters of foreign policy and defense” are explicitly within the purview of the federal government alone, he wrote.
Abbott has remained defiant ever since the Justice Department filed the lawsuit. On Fox News he said he would appeal to the Supreme Court if necessary. Weeks later, he said he hopes the case gets to the highest court so the justices can formally recognize that states have leeway on immigration enforcement.
That’s a federal responsibility under the Constitution. But conservatives say the federal government has failed to secure the borders.
Texas spent $850,000 on the barrier, which the judge described in detail, making clear he didn’t view it as a “temporary” installation like a string of buoys in a pool: four-foot spheres connected tightly by heavy metal cable, “surrounded by 68 anchors of about 3,000 lb each, and 75 anchors of about 1,000 lb each.”
The buoys have drawn international condemnation, and scorn from congressional Democrats and President Joe Biden.
Mexican Foreign Affairs Secretary Alicia Bárcena sent three formal protests about the buoys starting in late June, and relayed Mexico’s demands directly to Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas in meetings early last month.
Mexican officials say the buoys violate treaties it has signed with the United States over how the river is managed.
President Andrés Manuel López Obrador has also repeatedly complained about the buoys and has called Abbott’s actions at the border “inhumane.”
The judge noted the strain Texas’ efforts have already put on U.S.-Mexico relations, and the humanitarian concerns raised by Mexican officials as migrants get stuck at the barrier – or avoid it by going to deeper and more dangerous parts of the river.
State Sen. Roland Gutierrez, D-San Antonio, whose district includes the barrier site and runs upriver for hundreds of miles to Big Bend, echoed Castro’s label, “death buoys.”
“Drowning women and children at the border isn’t a policy. It is cruelty and insanity. The court’s ruling is a step towards justice, but now we must see action. This whole stunt must end right now,” he said.
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©2023 The Dallas Morning News. Distributed by Tribune Content Agency, LLC.
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