An appeals court ruled Friday that Texas’ floating border wall in the Rio Grande is illegal under federal law, delivering a victory to President Biden as he battles Gov. Greg Abbott over the surge in illegal immigration.
Mr. Abbott had ordered the “marine floating barriers” to try to prevent migrants from wading over near Eagle Pass, a border town, but the feds said he was interfering with the river and with Border Patrol operations and had to take it down.
A lower court first ruled against Texas, and now the 5th U.S. Circuit Court of Appeals, in a 2-1 decision, has upheld that injunction that ordered work on the barrier to cease.
“All of the district court’s findings of fact were well supported by the record, and its conclusion that the equities favor issuance of a preliminary injunction was not an abuse of discretion,” Judge Dana M. Douglas, a Biden appointee, wrote. She was joined in her decision by Judge Carolyn Dineen King, a Carter appointee.
The case turned on whether the Rio Grande is considered “navigable” under the Rivers and Harbors Act of 1899, which gives the feds final say over what happens in those waters.
The court said Friday the river is navigable.
Judge Don Willett, a Trump appointee, dissented, saying the 1,000-foot section in question has not historically been used for commerce or navigation, nor is it likely in the future. He said evidence to the contrary was “sketchy” at best.
“In sum, there is not sufficient evidence to find that the United States is likely to prevail in showing that this specific 1,000-foot stretch of the Rio Grande was historically used or susceptible of use in commerce. The district court clearly erred in finding navigability on this ground,” he wrote.
Friday’s ruling came a day after another federal court delivered another loss to Texas, refusing to grant an injunction ordering the Biden administration not to cut through razor wire the state placed on private property in some areas along the Rio Grande.
U.S. District Judge Alia Moses said that Texas didn’t prove the wire cutting was able to be challenged in court.
But she also spanked the feds, saying they were “culpable and duplicitous” in inviting the migrant surge.
Mr. Abbott has become the chief foil to Mr. Biden on immigration, trying to fill the gaps in enforcement the president has opened through his relaxed enforcement policies.
He has deployed his National Guard, ordered state police to try to find ways to arrest illegal immigrants on state charges, built border wall using state money and tried to erect hurdles like the floating barrier and the razor wire along major migrant routes.
The governor says his actions are justified under the “invasion” clause of the Constitution.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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