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Not a Grande Victory for DOJ
September 13, 2023

Not a Grande Victory for DOJ

By: James Trusty

Frustrated with the massive influx of aliens into Texas, Texas Governor Greg Abbott came up with a plan that was physically simple, but legally complex: drop a 1000-foot-long buoy barrier into the middle of the Rio Grande. The four-foot spherical orange buoys were chained together and anchored to the riverbed near the town of Eagle Pass—a sector that reported 270,000 encounters with migrants during the 2022-23 fiscal year. The Buoy Barrier, installed in late July, appeared to be having its intended effect when DOJ’s Civil Division swooped into a Texas district court to seek a temporary, and eventually permanent, injunction against the Grande Impediment.1

The core of DOJ’s concern is essentially federal supremacy. Although there were some humanitarian and environmental concerns trotted out in the DOJ briefing, the central principal of their objection is that an individual state cannot place structures affecting an international boundary. Key word, as discussed below, is “affecting.” In pursuing injunctive relief designed to fully remove the barrier, DOJ relied upon the Rivers and Harbors Appropriation Act (“RHA”) of 1899 – which basically establishes federal supremacy when dealing with state action affecting navigable waters.2

Last week’s opinion by Senior U.S. District Judge David Alan Ezra includes a long discussion as to whether the relevant portion of the Rio Grande is “navigable,” and whether the 1000-foot barrier constitutes a “structure” under the RHA.3 If both answers are affirmative–and the court found the buoys constituted a structure within navigable waters—then under the RHA the only way that Texas’s conduct would be valid would be if Congress had expressly authorized it to happen. Here, somewhat ironically, Governor Abbott had publicly announced that he was not “seeking permission” but was taking the immigration issue on by himself. The absence of that permission slip loomed large in Judge Ezra’s opinion, particularly once he had found that the buoy barrier had drifted from the center of the Rio Grande over to the Mexican side at one point – likely affecting navigation from either position.

Once the 42-page opinion granting a preliminary injunction was issued, Governor Abbott took to the airwaves to blast the “chaos caused by President Biden’s open border policies…” and pledging “to take this fight all the way to the U.S. Supreme Court.”4 But before DOJ crowed about its victory and the Governor blasted the ruling as incorrect, they should have read the fine print. First, the judge did not order complete removal of the buoys, he simply ordered Texas to secure them to the Texas riverbank side of the Rio Grande. His ruling seems to suggest that federalism still permits Texas to create its own barrier to illegal immigration, but that it must do so in a way that does not interfere with vessels navigating the Rio Grande. Second, the Court said it would expedite a final hearing on the merits, which suggests some measure of sympathy to Texas in the context of having granted, if partially, a preliminary injunction.

Whether the issues are free speech on social media platforms or state solutions to a porous border, important federal litigation is popping up in the 5th Circuit with regularity. With the likelihood of certiorari being accepted by the Supreme Court always being a longshot, the District and Circuit Judges of the 5th Circuit are positioned to rule on complex, hot-potato political issues that not only make precedent but make the daily news.

1 U.S. v. Greg Abbott and the State of Texas, Case 1:23-cv-00853-DAE (W.D. Tex. July 24, 2023), Dkt. 1 (hereinafter “U.S. v. Gregg Abbot and the State of Texas”).

2 33 U.S.C. § 401 et seq.

3 U.S. v. Gregg Abbot and the State of Texas, Dkt. 50.

4 Bradford Betz, Judge orders Texas to remove floating buoys used to curb flow of illegal immigrants, FOX NEWS (Sept. 6, 2023), illegal-immigrants.