Fifth Circuit Halts Order to Force Governor Abbott to Remove Buoys From Rio Grande
FAIR Take | September 2023
One day after District Court Judge David Alan Ezra issued a preliminary injunction directing Texas Governor Greg Abbott to remove floating buoys placed on the Rio Grande River, a 5th Circuit Court of Appeals three-judge panel unanimously stayed the order. The 5th Circuit’s stay by the judges, while not fully addressing the merits of the case, meant the buoys will remain on the river while the Appeals Court considers the federal Department of Justice’s case against Texas.
In appealing the District Court’s preliminary injunction requiring Texas to remove the buoys, lawyers for the State of Texas argued, “The buoys were deployed under the Governor’s constitutional authority to defend Texas from transnational-criminal-cartel invasion. Moving the buoys exacerbates dangers to migrants enticed to cross the border unlawfully, and to Texans harmed by human trafficking, drug smuggling, and unchecked cartel violence.”
The lawsuit against Texas began when the Department of Justice filed suit against the state on July 24, demanding removal of the buoys. The DOJ’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 port, roadstead, haven, harbor, canal, 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.”
Governor Abbott disagreed the buoys violated the Rivers and Harbors Act, and the politics of the moment strongly suggest that the Rivers and Harbors Act was merely a pretext for the Biden Administration to appease his open-borders supporters.
The administration’s lawsuit stemmed from the launch of Operation Lone Star, which Governor Abbott announced on June 8. 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 rollout of the program began with the first 1000-foot installation of the buoys in Eagle Pass on July 7.
This program incensed open-borders Democrats. No sooner did Governor Abbott announce the program than 87 House Democrats called on the administration to stop Governor Abbott and emphasize its authority over federal immigration policy. In their letter to President Biden, the Democrats demanded that the administration “immediately intervene to stop Governor Greg Abbott’s actions and, as appropriate, pursue legal action given the serious and credible allegations of harm to migrants, interference in the federal enforcement of immigration laws, and violations of treaty commitments with Mexico.” Operation Lone Star’s programs and policies, they argued, “specifically the recent erection of razor wire or buoy walls, pose a huge danger to migrants and impedes the ability of our border patrol offices to safely and humanely treat migrants as well as to comply with relevant federal and international laws.”
At that point, the Biden Justice Department sent a letter to Governor Abbott, informing him of the administration’s intent to sue unless the buoys were removed. Governor Abbott responded to President Biden’s letter by replying in writing, “In accordance with Article I, § 10, Clause 3 of the U.S. Constitution, I have asserted Texas’s ‘sovereign interest in protecting [her] borders.’ Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting). 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. See Abbott v. Biden, 70 F.4th 817, 845 (5th Cir. 2023) (Oldham, J.) (holding that ‘the Constitution forbids President Biden from bypassing the states[and] stepping into Governor Abbott’s shoes’). Your ongoing violation of Article IV, § 4 of the U.S. Constitution has left me no other choice.”
The Biden Administration filed suit against Texas shortly thereafter. In addition to the Biden administration’s strong-arm tactics, open-borders advocates also rallied against Governor Abbott’s buoy initiative. The ACLU of Texas responded, calling the buoys a cruel and unlawful anti-immigrant stunt.
Importantly, a majority of Texas voters support using buoys in the Rio Grande. According to a September 8 poll by the University of Texas, 52 percent of participants favored buoys to deter illegal aliens from entering Texas, compared with 40 percent who were opposed.