An appeals court sank the Biden administration’s attempt to take down a strip of buoys that the state of Texas had installed last summer in the Rio Grande as a “marine barrier” meant to stop illegal immigration and drug smuggling.
The full Fifth Circuit Court of Appeals, composed of 17 judges, ruled late Tuesday that the 1,000-foot aquatic buoy wall located at the U.S.-Mexico border could remain, but the issue is not out of hot water yet. Seven dissenting judges argued the federal government was likely to succeed on the merits of its case, disagreeing with the other 10 in the majority who said Texas was more likely to prevail.
A trial over the dispute is slated to start next week at the U.S. District Court for the Western District of Texas before Judge David Ezra. The legal fight thus far has merely surrounded whether to preliminarily stop Texas from placing its floating barrier, and the next phase will involve a more detailed examination of the merits.
However, the full en banc decision on Tuesday that lifted the injunction spells trouble for the federal government’s position, as the court held that Ezra, a President Ronald Reagan appointee, “clearly erred in finding that the United States will likely prove that the barrier is in a navigable stretch of the Rio Grande.”
The Biden administration has pushed Ezra to side against GOP Gov. Greg Abbott’s administration after the state debuted the floating barrier between Eagle Pass, Texas, and Piedras Negras, Coahuil in July 2023.
The full slate of judges on the 5th Circuit agreed to hear the case after a split three-judge ruled in favor of the Biden administration in December.
Fifth Circuit Judge James Ho, an appointee of former President Donald Trump who is considered one of the most conservative jurists in the appeals court, voiced strong favor for Texas’s position in the case on Tuesday.
Ho wrote for the majority that Texas has the right to defend itself against what it perceives as an invasion. He supports Texas’s use of the buoys, asserting that the state has the constitutional authority to protect its borders without federal approval when faced with imminent danger or invasion.
“A sovereign isn’t a sovereign if it can’t defend itself against an invasion,” Ho wrote Tuesday, noting that Abbott invoked Article I, Section 10 “in response to the ongoing illegal immigration crisis.”
5th Circuit Judge Andrew Oldham, another Trump appointee, issued a slightly different concurrence to the majority’s decision, finding that there is no need to consider the “invasion” argument at this time because he said the RHA “does not apply to Texas’s buoys.”
The Biden administration initially asked Abbott to take down the buoys on July 20, 2023. Abbott refused and told the White House in a letter, “Texas will see you in court, Mr. President.”
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The Justice Department sued Abbott in late July 2023 and ordered the removal of the buoys. In short, the lawsuit by the federal government claims that Texas is violating U.S. environmental law that requires states to gain federal approval to build obstructions on navigable waters like the Rio Grande, or more specifically, the Rivers and Harbors Act (RHA) of 1899.
House Republicans from Texas have backed Abbott and blamed President Joe Biden for the 9 million noncitizens who have been encountered attempting to enter the U.S. without permission since he took office.