Appeals court rules in favor of Texas’ floating border wall, though judges duck ‘invasion’ argument
A federal appeals judge has ruled in favor of Texas Governor Greg Abbott. Greg Abbott has ruled in favor of a floating border wall erected by him in Rio Grande in an attempt to stop illegal immigration.
The judges didn’t rule on the question of whether Mr. Abbott had the right to use the “invasion powers” under the Constitution. They left that for a later date.
The case was instead about whether or not the 1,000-foot-high barrier near Eagle Pass is in violation of a 19th century law that gives the federal government the right to control what happens on navigable rivers, and whether or not the Rio Grande falls into this category.
In a unanimous decision on Tuesday, the 5th U.S. In a ruling of 11-7 on Tuesday, the Circuit Court of Appeals said that based upon the current case, the law does not apply to this stretch of Rio Grande.
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The barrier is part of a series Mr. Abbott took to plug the gaps in border defenses that he said were opened by President Biden’s more relaxed approach towards illegal immigration.
The Republican Governor had a string of orange buoys placed on the riverbed along a popular point of crossing for migrants. He claimed that his goal was for them to be forced to use legal border crossings in order to apply for entrance.
The barrier is generally credited with slowing down crossings. However, the Biden Administration argued that it was dangerous and increased the risk of migrants drowning in the river.
The federal Justice Department said that it also violated the Rivers and Harbors Act of1899, because it interfered with navigability.
The district court granted an injunction on behalf of Mr. Biden. The case was put on hold as the appeals court took the case through more twists and turns, culminating in Tuesday’s decision.
Judge Don Willett wrote the opinion and delved deep into history to find little evidence that the shallow river, which is usually wadable, counts as “navigable”.
The United States’ argument for historic navigability is based on inconsistent and rare accounts of past usage along this Rio Grande stretch. The United States has not met its burden of proving that it will be successful in proving that under the RHA the barrier is located in a section of the river which was historically navigable.
The decision sparked a flood of opinions. Judge James C. Ho was one. He sided with majority opinion but said that the court should not have thrown out Mr. Biden’s case because Texas faces a border invasion.
Judge Ho stated that Mr. Abbott declared a war under the Constitution, and there was “ample evidence” to support the declaration. The judge said that this puts the fight outside the jurisdiction of the courts.
“Texas’s invocation Article I, section 10, presents a nonjusticiable question of politics.” The district court does not have jurisdiction to hear the claim of the federal government under the RHA,” wrote Judge Ho.
The majority said that it could decide the case, without having to get into the major constitutional issues. Therefore, the full ruling of the court does not take a position on whether or not Judge Ho is right.
In a dissenting opinion, Judge Dana M. Douglas stated that there is “ample proof” to support the claim that the Rio Grande counts as a navigable waterway, including Army Corps of Engineers’ studies and an old history of actual traffic.
Judge Douglas also said that Mr. Abbott’s floating wall taints U.S.Mexico relationships.
She also disputed Judge Ho’s conclusions about invasion, saying a state can only repel an invasion if the federal government is unable to act and not if it refuses to.
It would be difficult for a reasonable person to argue that Texas’s continued use of its war power is a question of politics in this case, when no one could reasonably claim that the federal government had not been given an adequate chance to respond to any purported “invasion”,” Judge Douglas wrote.
