- The Washington Times - Monday, July 24, 2023

The Biden administration filed a lawsuit Monday asking a judge to order Texas to remove the floating barrier the state put into the Rio Grande to try to block illegal immigration, saying the water wall amounts to illegal construction.

Gov. Greg Abbott welcomed the lawsuit, saying, “Texas will see you in court, Mr. President.”

He defended his actions as a life-saving measure. He said by losing the barrier, more migrants will die attempting to cross the river and that their blood will be on President Biden’s hands.

The Republican governor also teed up a constitutional battle. He said he erected the water wall under authority of the Constitution, which he said grants states the power to repel an “invasion.” He said that’s what the record-breaking migrant surge under Mr. Biden has become.

Mr. Abbott blamed the president’s policies. He accused Mr. Biden of enticing migrants to make the dangerous crossing through the river rather than waiting to enter through a border crossing in the legal immigration system.

“Nobody drowns on a bridge,” the governor said. “It has been on your watch that migrants have suffered an unprecedented crisis of humanity.”

The Justice Department’s lawsuit was filed in federal court in the western district of Texas. The department said the 1,000-foot water wall, near Eagle Pass, violates the Rivers and Harbors Act.

“This floating barrier poses threats to navigation and public safety and presents humanitarian concerns,” said Associate Attorney General Vanita Gupta. “Additionally, the presence of the floating barrier has prompted diplomatic protests by Mexico and risks damaging U.S. foreign policy.”

The Justice Department had warned the lawsuit was coming last week, prompting Mr. Abbott’s bring-it-on response Monday, which was followed by the actual lawsuit filing.

Mr. Abbott said the law doesn’t apply because the water wall is a set of buoys, not a construction.

But he said the issue is much bigger than that.

“The fact is, if you would just enforce the immigration laws Congress already has on the books, America would not be suffering from your record-breaking level of illegal immigration,” he said.

Nor, he said, would migrant deaths be rising.

He pointed to the U.N.’s declaration that the U.S.-Mexico border is the deadliest land crossing in the world. And he said “hundreds of migrants drowned in the Rio Grande” before Texas began what he characterized as the life-saving floating wall.

“To end the risk that migrants will be harmed crossing the border illegally, you must fully enforce the laws of the United States that prohibit illegal immigration between ports of entry,” he wrote. “In the meantime, Texas will fully utilize its constitutional authority to deal with the crisis you have caused.”

His justification for using powers under the invasion clauses of the Constitution has never been fully tested in the courts, but it has been percolating in conservative circles for several years. It relies on Article I, Section 10, which says states cannot unilaterally wage war “unless actually invaded.” Texas’ constitution, meanwhile, grants the governor the power as commander-in-chief of state forces to “repel invasions.”

Mr. Abbott said that justifies the steps he’s taken, including the water wall.

Critics have labeled the invasion theory a variety of ways, including racist and a legal fiction.

Mr. Abbott and Mr. Biden have gone toe-to-toe over the border during the last 30 months, with the Texas governor scoring some big symbolic wins.

In particular, his campaign to bus migrants to Democrat-run cities — a move he said was to try to spread the pain of the record migrant surge — enraged the administration and ensured the border crisis was front-page news in cities across the country.

Mr. Abbott’s Operation Lone Star has also deployed state personnel to arrest and prosecute immigrants who are in the country illegally and has sought to erect its own border barriers. Those include traditional walls, miles of razor wire and, most controversially, the floating barrier.

Texas newspapers reported last week on the concerns of one state trooper who said they were ordered to push migrants back into the Rio Grande and to deny water to those who did make it across and were thirsty.

State authorities denied the allegations, but the governor’s opponents said they not only believed the account but said it was emblematic of the governor’s inhumane approach to the border.

“The country is now finally seeing where the spiral of dehumanization of migrants has led us,” said Mario Carrillo, a Texas-based operative for America’s Voice, an immigration advocacy group. “Gov. Abbott’s cruel and unconstitutional immigration enforcement machine is designed to harm migrants, and those of us in Texas have long called for an end to Operation Lone Star.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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