Open Borders vs. Open Waters: Can Texas Block the Flow?

On July 24, 2023, the Department of Justice filed a lawsuit against Texas and its governor, Greg Abbott, for placing a floating buoy barrier across the Rio Grande to deter illegal crossings. The lawsuit alleges Texas and Abbott violated federal law in installing this barrier, citing the Rivers and Harbors Appropriation Act of 1899, which bars the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States.” The Department of Justice also alleges that Abbott failed to obtain the proper permits through the U.S. Army Corps of Engineers to install the barrier in the Rio Grande. 

Texas has responded by saying that the U.S. Constitution affords the state the power to “repel invasions,” including the illegal entry of thousands of migrants. This response comes in the form of a letter sent to President Joe Biden by Abbott accusing the administration of impeding Texas’ “sovereign interest” in securing its borders. Abbott doubles down by stating that while he shares the administration’s concerns for migrant welfare, the administration’s “open-border policies encourage migrants to risk their lives by crossing illegally through the water.”

The chained buoys ran for roughly 1,000 feet by the small border city of Eagle Pass, Texas. On August 2, 2023, the body of a man who drowned in the Rio Grande was found in the barrier, causing further objection by the Mexican government to retaining the buoys in the river. The Mexican Foreign Ministry has expressed concerns for the impact on human rights and personal safety in Texas, placing this barrier without Mexico’s cooperation.

Within the lawsuit, the Justice Department is asking a federal judge to order the removal of the floating barrier while the lawsuit is in litigation. The Department states that the injunction is needed to prevent “irreparable harm” to foreign relations, public safety, and river navigation. On September 6, 2023, U.S. District Judge David Ezra issued an order granting the removal of the barrier, prohibiting Texas from building new barriers in the river pending final judgment in the lawsuit, stating that Texas required permission to install the barrier under federal law. The court sided with the Justice Department, finding that the barrier’s threat to human life outweighed Texas’ interest in installing it. 

On December 1, 2023, the U.S. Court of Appeals for the 5th Circuit upheld the lower court’s order finding that the barrier was illegal, and ordered the immediate removal of the barrier. As of January 17, 2024, the 5th Circuit Court of Appeals said it would reconsider requiring Texas to remove the barrier by hearing arguments in May of this year. With most of the court’s seventeen active judges being appointees of Republican presidents, legal commentators are concerned that the lower court’s ruling will be reversed in Texas’ and Abbott’s favor. If the barrier were reinstated, it could lead to renewed harm to public safety and further strain on the relationship between the Biden administration and Governor Abbott. 

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