A federal appeals court has delivered a win to Texas Gov. Greg Abbott, ruling in favor of the floating border wall that he ordered erected in the Rio Grande to try to shut down a hotspot for illegal immigration.
But the judges did not rule on whether Mr. Abbott was right to invoke “invasion” powers under the Constitution, putting that question off for another day.
Instead, the case turned on whether the 1,000-foot barrier near Eagle Pass violates a 19th-century law giving the feds primacy over what happens in navigable rivers — and whether the Rio Grande is such a river.
The full 5th U.S. Circuit Court of Appeals, in an 11-7 ruling on Tuesday, said that based on the case right now, the law doesn’t apply to that stretch of the Rio Grande.
Mr. Abbott hailed the decision.
“We fought to keep these barriers in the water, and with the Fifth Circuit’s decision, that is exactly where they will remain,” he said in a statement. “This fight is far from over. Texas will continue to defend our constitutional right to secure our southern border to keep our state and the nation safe.”
The barrier is one of a series of moves Mr. Abbott made to try to plug what he called gaps in the country’s border defenses opened up by President Biden’s more relaxed approach to illegal immigration.
The Republican governor had a chain of orange buoys anchored to the riverbed and placed along a popular crossing point for migrants. He said his goal was to force them to go to legal border crossings to apply for entry.
By most accounts, the barrier has been successful in slowing crossings, but the Biden administration argued it was also dangerous, raising the risk that migrants would drown in the river.
The federal Justice Department also said it violated the Rivers and Harbors Act of 1899 because it impinged on navigability.
A district court sided with Mr. Biden and granted an injunction. That was put on hold while the case took more turns in the appeals court, ending with Tuesday’s ruling.
Judge Don Willett, writing the key opinion, delved into history and found scant evidence that the shallow, usually wadable river counts as “navigable” for purposes of the venerable law.
“At bottom, the United States’s argument for historical navigability teeters on only inconsistent and exceptional accounts of past use along this stretch of the Rio Grande. The United States therefore has not carried its burden to show that it is likely to succeed in proving under the RHA that the barrier sits in a portion of the river that was historically navigable in its natural condition,” the judge wrote.
The ruling produced a flurry of opinions, including one from Judge James C. Ho, who sided with the majority but said the court never should have just tossed Mr. Biden’s case altogether because Texas is facing a border invasion.
Judge Ho said Mr. Abbott declared an invasion under the Constitution and said there’s “ample” evidence that the declaration was made in good faith. That, the judge said, elevates the fight beyond the reach of the courts.
“Texas’s invocation of Article I, section 10 presents a nonjusticiable political question. Accordingly, the district court lacks jurisdiction to consider the federal government’s claim under the RHA,” Judge Ho wrote.
The majority, though, said it was able to decide the case without getting to the big constitutional issues, so the court’s full ruling takes no position on whether Judge Ho is correct.
Writing in dissent, Judge Dana M. Douglas said there was “ample evidence” that the Rio Grande does count as a navigable river, including Army Corps of Engineers studies and a distant history of some actual traffic.
Besides, Judge Douglas said, Mr. Abbott’s floating wall is tainting U.S.-Mexico relations.
She also challenged Judge Ho’s invasion conclusions, saying that a state’s power to repel an invasion is only limited to instances when the federal government cannot act — not cases where it will not.
“It would be difficult to accept the argument that Texas’s continued exercise of its war powers is a political question in this instance, where no reasonable person could contend that the federal government has not had an adequate opportunity to respond to any purported ‘invasion,’” Judge Douglas wrote.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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