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Legality of Texas’ floating barrier on Rio Grande goes before full 5th Circuit appeals court


The full bench of the 5th U.S. Circuit Court of Appeals heard arguments Wednesday in a case involving a controversial effort by Texas to crack down on illegal immigration. The case involves a floating wall the state has installed on the Rio Grande to keep people from entering the country from Mexico.

Texas Gov. Greg Abbott ordered the installation of the 1,000-foot floating wall last summer as a part of Operation Lone Star, Abbott's border security initiative. At the district court level, attorneys for Texas invoked the argument that the Constitution allowed states to guard against "invasion," in this case by people migrating across the U.S.-Mexico border illegally. The lower court denied the self-defense argument.

Arguing before the 5th Circuit, attorneys for both Texas and the U.S. Department of Justice largely focused on the question of whether the floating barrier violates the Rivers and Harbors Appropriation Act of 1899. That law bans the creation of any obstruction of a navigable waterway unless approved by Congress and permitted by the Army Corps of Engineers.

"For most of its length and much of its storied history, the Rio Grande has been little more than a creek with an excellent publicist," said Lanora Pettit, the principal deputy solicitor general of Texas. "If the U.S. is right, then any body of water would be deemed navigable and thereby subject to federal jurisdiction."

Pettit argued that, for more than a century, the Rivers and Harbors Appropriation Act had been interpreted as applying only to waterways that, in their natural condition, "serves (as) the artery of interstate commerce across which trade or travel can be or is conducted."

That, she said, did not describe the Rio Grande, which is frequently dry over most of its length. The fact that it is not dry in the vicinity of Eagle Pass, where the floating barrier is located, is largely due to human intervention in the form of irrigation.

Pettit only briefly addressed the underlying argument Texas had made before the lower court.

"The federal government (told the district court) that a state must get a permission slip from Congress in order to take even temporary measures to protect its citizens from hostile entrants trying to enter its territory," she said. "Because the district court did so without even a showing of the harm to legitimate commercial shipping, its order is far from equitable and should be reversed."

Arguing for the Justice Department, attorney Michael Gray said the district court had ruled correctly that the Rio Grande was historically navigable, "the most prominent (reason) being ferry traffic, which is expressly foreign commerce conducted on the river by floating structures, boats. That foreign commerce is sufficient to bring the area within Congress's power."

While Abbott and other Texas officials have attacked the administration of President Joe Biden for failing to secure the border, Gray went into some detail about how the floating wall itself interfered with the U.S. Border Patrol performing its functions.

"The Border Patrol is on the river basically every day," Gray said, noting that, between 2018 and 2023, the Border Patrol had conducted 249 rescues on the Rio Grande. "There was evidence here that any obstruction to the river, including this obstruction could impair response times of the Border Patrol as the Border Patrol does rescues on the river."