DOJ Sues Texas to Halt Buoy System; Governor Abbott Fires Back

FAIR Take | August 2023

The last week of July, the Department of Justice filed a civil complaint against the State of Texas to force Governor Greg Abbott to remove the buoy barrier it is installing in parts of the Rio Grande River. 

Texas began deploying the buoys in early July.  Gov. Abbott’s plan, announced in June, was to install a 1,000-foot string of floating buoys in the Eagle Pass area that would be anchored to the river bed along the Rio Grande River between Texas and Mexico. The purpose of the barrier is to do what the Biden administration has been refusing to effectively do – secure the border and deter mass illegal migration.

In the complaint, the Department of Justice (DOJ) claims that the buoy-barrier violates an 1899 law, called the Rivers and Harbors Act.  Section 403 of that law prohibits:

1. The creation of any obstruction, not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States”; and
2. “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 … except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.

According to the DOJ, the Rio Grande has long been classified as a “navigable river” of the United States and the buoy-barrier constitutes an “obstruction” or “other structure” under the statute.

But in a letter he sent to President Biden last week, Governor Abbott defended Texas’ action to build the buoy system.  He 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,” he wrote.  “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.”

Governor Abbott then turned the tables on President Biden, saying the buoy system wouldn’t be necessary if the President would actually fulfill his constitutional duties to faithfully execute the laws of the United States and to protect Texas against invasion.  “Your ongoing violation of Article IV, § 4 of the U.S. Constitution has left me no other choice.”

Abbott also squarely laid the blame for the humanitarian crisis at the border on President Biden. “If you truly care about human life, you must begin enforcing federal immigration laws. By doing so, you can help me stop migrants from wagering their lives in the waters of the Rio Grande River. You can also help me save Texans, and indeed all Americans, from deadly drugs like fentanyl, cartel violence, and the horrors of human trafficking.”

As for the threat of a DOJ lawsuit, Governor Abbott said, “We will see you in court, Mr. President.”