Texas takes its border showdown with President Biden to a panel of judges on Thursday, arguing that the illegal immigrants streaming into the U.S. constitutes an invasion that the state has a right to repel, including by deploying its floating wall in the Rio Grande.
The 1,000-foot-long string of buoys, which Texas calls “marine floating barriers,” has nearly eliminated illegal crossings and drug smuggling near Eagle Pass, the state says.
The Biden administration sued to tear down the floating wall. Officials said Texas didn’t obtain federal permission and the buoys violated the Rivers and Harbors Appropriation Act of 1899.
The case is the first significant test of the “invasion” theory, popular among conservatives. The theory argues that states have the right under the Constitution to defend themselves from invasion. That, Texas argues, is exactly what the migrant crisis has become.
“Gov. [Greg] Abbott has asserted this power here because the U.S. has unconstitutionally refused to protect Texas — and, more importantly, its citizens — against the dangers posed by transnational cartels,” Lanora C. Pettit, Texas’ principal deputy solicitor general, told the 5th U.S. Circuit Court of Appeals.
The floating wall is a line of orange spherical buoys lined shoulder to shoulder, with plates in between to prevent anyone from climbing over the seams. The buoys are anchored to the riverbed, deterring anyone from swimming underneath, and they spin to prevent migrants from grasping the barrier.
Razor wire on the U.S. shore is a further deterrence.
The floating wall has enraged the Mexican government, which blames several drownings on the buoys, and has irked the Biden administration, which says the federal government gets the final say on what goes into international boundary waters.
The International Boundary and Water Commission also did a study finding most of the barrier was on the Mexican side of the river. Texas had to move it closer to the U.S.
Texas says the floating barriers work.
The Justice Department says the wall is illegal under the 1899 law because it hinders navigation and commerce along the river.
Justice Department lawyer Michael T. Gray said the unprecedented surge of illegal immigrants is not an invasion.
“An invasion under the Constitution is ‘armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government,’” Mr. Gray told the justices in his brief. “It is not irregular migration or the alleged underenforcement of laws against illegal, transboundary activity by private, non-state actors. Such actions are insufficient by themselves to justify allowing states to ‘engage in War’ unilaterally.”
A district judge sided with the Biden administration and ruled the floating wall illegal. The 5th Circuit has allowed the buoys to remain in place while the case develops.
Conservatives have been itching for a fight over the invasion issue since the early days of Mr. Biden’s tenure, after he reversed Trump-era policies that kept a lid on border chaos.
As drug, migrant and terrorism suspect numbers grew, former senior Trump administration officials said the states could defend their borders under the Constitution. The invasion clause of Article I, Section 10 says states can deploy troops if they are “actually invaded, or in such imminent Danger as will not admit of delay.”
The Trump officials urged Republican-led states to test the power. After initial resistance, Mr. Abbott, the only Republican governor on the southern border, made a declaration last year.
“A state of war exists in Texas,” said the Immigration Reform Law Institute, an outfit that backs stricter immigration controls and filed a brief supporting Texas in the appeals court case.
Christopher J. Hajec, the group’s director of litigation, said the case will clarify the courts’ role in refereeing the matter.
“The legal crux of the case is whether courts think they should become involved in issues such as whether Texas has been ‘invaded’ by the cartels within the meaning of the state self-defense clause,” Mr. Hajec told The Washington Times. “The Constitution gives that kind of military question to the political branches — here, Texas — to decide. The court ordered accelerated briefing on this, maybe just to decide that Biden’s lawsuit is non-justiciable, and throw it out.”
More than a dozen other Republican-led states have filed a brief supporting Texas. They said the case tests states’ “constitutional right to defend themselves.”
The Times reached out to immigrant rights groups for this report, but they chose not to comment.
The invasion declaration is part of Mr. Abbott’s Operation Lone Star, his ambitious attempt to secure his state’s border where Mr. Biden hasn’t.
He has committed billions of dollars to the effort, including erecting miles of border wall, ordering state police and National Guard troops to the border to deter crossings and make arrests under state law, and busing migrants out of Texas to other areas of the country to spread the burden of accommodating the surge of people.
Update: This story has been updated to reflect that Texas moved the barrier after an international commission said it strayed onto the Mexican side of the river.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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