Fifth Circuit sides with Texas in floating border barrier dispute with federal government

AUSTIN, Texas (CN) — The Fifth Circuit Tuesday dealt a blow to the federal government's attempt to remove a floating barrier in the Rio Grande River placed there by the state of Texas.

U.S. Circuit Judge Don R. Willett, a Donald Trump appointee, wrote in the 30-page majority opinion that a lower court improperly granted the federal government a preliminary injunction requiring the state to remove the barrier.

The U.S. sued Texas in June 2023, arguing that the barrier was a violation of the Rivers and Harbors Act, because the state did not obtain a permit to construct the barrier without permission from the U.S. Army Corps of Engineers. A central question in the case has been whether the 1,000-foot-long string of buoys near Eagle Pass, Texas, was placed in navigable waters, which would make it subject to the act. 

A three-judge panel with the New Orleans-based appeals court previously upheld the lower court's injunction. However, the state petitioned for an en banc rehearing of the case, leading to Tuesday's ruling.

Willett, along with eight other judges appointed by Republican presidents, found that the federal government had failed to show that the stretch of river in question was, in fact, navigable. The majority’s decision was based on whether there was evidence of past interstate commerce or the possibility for commerce to exist if improvements to it were made. 

“The United States will likely fail to prove navigability because (1) the at-issue stretch of the river likely was not historically navigable, and (2) the United States has not shown that there are likely reasonable improvements that could render the river navigable,” Willett wrote.

Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, voiced support for the majority’s reasoning in her concurring opinion but disagreed with the assertion that the U.S. could not prove the river is navigable based on bank-to-bank ferry traffic.

U.S. Circuit Judge James C. Ho offered a very different outlook on the case in his opinion concurring in part and dissenting in part. In his opening line, the Trump appointee wrote: “A sovereign isn’t a sovereign if it can’t defend itself against invasion,” echoing the words of Republican officials in Texas who have referred to the influx of migrants on the border as an invasion.

While Ho said he agrees that the injunction should be reversed, he would like to have seen the case thrown out for lack of jurisdiction. His reasoning is that the buoy barrier was created in order to repel an invasion, which he believes is a political question that the courts do not have jurisdiction over. Moreover, Ho said that the state acted within its authority under the U.S. Constitution, allowing it to act as if at war.  

In two dissenting opinions, U.S. Circuit Judges Higginson, a Barak Obama appointee, and Douglas, a Joe Biden appointee, wrote that the district court was correct in finding that the federal government was likely to succeed on its River and Harbors Act claim. Both judges argued that evidence supporting the river as a navigable waterway was ample and the appeals court should have kept the injunction in place while the parties continue litigating the case. 

Texas Governor Greg Abbott reacted to the court’s ruling on social media. Writing about the buoys, the Republican said: “Biden tried to remove them. I fought to keep them in the water. And that is exactly where they will stay.” 

The buoys are just one of the many tools that have been used to deter migrant crossings for Abbott’s Operation Lone Star. Initially launched in 2021, the border security initiative has seen thousands of Texas National Guardsmen and state law enforcement deployed to the border with the goal of erecting razor wire barriers and apprehending migrants who cross into the state outside of a legal port of entry. 

A Fifth Circuit opinion is also pending in another case between the U.S. and Texas, concerning whether a new state immigration enforcement law should be allowed to take effect. Senate Bill 4 was blocked by a federal judge in Austin after the Department of Justice sued, arguing that the state was attempting to impede the federal government’s ability to regulate immigration.

While the buoys will be allowed to remain in the river for the time being, their use still hangs in the balance as both parties prepare to soon argue the merits of the case.

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