FAIR Take | December 2023
On Friday, a three judge panel of the Fifth Circuit Court of Appeals upheld a district court ruling, ordering Texas to remove the buoys it installed along a stretch of the Rio Grande. The district court’s ruling had been stayed while on appeal.
The lawsuit began in late July, when the Department of Justice filed suit against the State of Texas, demanding removal of the buoys. Texas deployed the 1,000-foot string of buoys in the Rio Grande as part of Operation Lone Star, which Governor Abbott announced in early June. One goal of Operation Lone Star was to secure the border by “deploying marine floating barriers to deter illegal crossings in hotspots along the Rio Grande River.” The actions incensed open-borders Democrats, and by the end of July, President Biden’s Department of Justice had filed a lawsuit.
The Department of Justice’s complaint alleged that Texas violated the federal Rivers and Harbors Act, since the state did not obtain authorization, which the Biden administration claimed was required. According to the Rivers and Harbors Act, “the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any … navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.”
Defending the State’s actions, Governor Abbott rejected the notion that the Rivers and Harbors Act is applicable to the action Texas has taken. Abbott further argued that the buoy system is justified under Article 1, Section 10, Clause 3 of the U.S. Constitution. That clause says:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
“I have asserted Texas’s “sovereign interest in protecting [its] borders,” Governor Abbott said. “I have done so in my role as the commander-in-chief of our State’s militia under Article IV, § 7 of the Texas Constitution.”
However, in its 2-1 decision, the 5th U.S. Circuit Court of Appeals held that the river is navigable where the barrier was placed and that it is “an obstruction,” meaning that Texas needed to receive permission from the U.S. Army Corps of Engineers before deploying it.
Gov. Greg Abbott posted a statement on X calling Friday’s ruling “clearly wrong” and said he and Attorney General Ken Paxton will seek an immediate rehearing by the entire Fifth Circuit. “We’ll go to [the Supreme Court] if needed to protect Texas from Biden’s open borders,” he said. ”Through #OperationLoneStar, the Texas Military, Texas DPS, and law enforcement partners work around the clock to combat drug cartels and human smuggling activity,” he continued. “Texas will continue to protect our state and nation from President Biden’s open border policies.”