Texas brought its border “invasion” argument to a federal appeals court Wednesday, asking the judges to allow the state to keep its floating border wall in a portion of the Rio Grande despite the Biden administration’s objections.
The federal government said the buoy barrier, which stretches 1,000 feet and is designed to stop migrants from wading across a particular stretch of the river, violates a 19th-century law giving the national government power over navigable rivers.
Texas said the Rio Grande is just 18 inches deep where the buoys were installed and so the feds have no veto over what the state does. And Texas said the state’s power to repel an invasion is granted by the U.S. Constitution and thus trumps the federal law anyway.
Some of the judges on the 5th U.S. Circuit Court of Appeals in New Orleans seemed intrigued by the invasion debate, with one saying she hadn’t paid much attention before Wednesday’s oral argument “but now I’m interested.”
Still, most of the session was spent examining whether the Rio Grande is a navigable river, which would trigger the Rivers and Harbors Act of 1899 and give the federal government more say over what could be built in the river.
Michael Gray, the Justice Department’s lawyer, said ferries have plied the water in the past and Border Patrol boats still roam that section of the river.
“The river is navigable,” he said.
But Lanora Pettit, arguing for Texas, said that’s stretching the definition. She said the Border Patrol has to use airboats to get around that part of the river because it’s so shallow. She said the court has before it photos of the floating buoys being installed, and the river is so shallow that the workers’ knees are visible above the waterline.
“For most of its length and much of its storied history, the Rio Grande has been little more than a creek with an excellent publicist,” she said.
Ms. Pettit said if the section of the river where the buoys are placed is deemed navigable then any body of water might be subject to federal jurisdiction.
The giant orange buoys were installed to try to seal off the popular crossing near Eagle Pass, where tens of thousands of migrants were jumping the border last year. They are anchored to the bottom by chains and are designed to be difficult to climb over and swim under.
Texas said it wanted to discourage those crossings and force the migrants to try to enter in an orderly fashion through legal ports of entry.
It’s part of Gov. Greg Abbott’s Operation Lone Star, meant to plug gaps in border defenses he said were created by President Biden’s lax policies.
Several judges returned to the invasion argument, peppering the Justice Department with queries about what role courts can play if a governor invokes the constitutional power.
“Are you saying that federal law overcomes the constitutional right of the state?” asked Judge Edith Jones, who at one point labeled it state “self-defense.”
Mr. Gray said no case in history has held that immigration is the kind of invasion the Constitution envisioned when it says no state can wage war “unless actually invaded, or in such imminent Danger as will not admit of delay.”
“Their argument is ’Once we say “invasion” we can do whatever we want, as long as we want.’ We don’t think that’s the answer,” Mr. Gray said.
A district judge ruled for the Biden administration, as did a panel of the 5th Circuit, in a 2-1 ruling. But the entire 17-member circuit erased that decision and said it would rehear the case en banc.
The court did not indicate Wednesday when it might rule.
The case is U.S. v. Greg Abbott.
The 5th Circuit is also pondering another battle between Mr. Abbott and Mr. Biden over the state’s takeover of a park in Eagle Pass that the federal government had been using as a staging area to welcome illegal immigrants.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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