Texas Erecting Container Wall at the Southwest Border

The state of Texas has begun placing shipping containers along the banks of the Rio Grande in El Paso, forming a makeshift wall to prevent migrants from entering illegally. That’s even as the state of Arizona has been sued by the federal government for doing the same thing in Yuma. What makes Texas Governor Greg Abbott (R) think he can get away with it? Strap yourself in for a tale involving one of America’s greatest heroes, Theodore “Teddy” Roosevelt, that will take us through the short-lived “Republic of Texas”.

El Paso. El Paso was already experiencing what a post-Title 42 border would be like even before CDC orders directing the expulsion of illegal migrants, issued pursuant to 42 U.S.C. § 265 in response to the Covid-19 pandemic, was set to expire.

Five justices of the Supreme Court have revived those Title 42 CDC orders and placed them on indefinite life support, but they had been set to terminate on December 21. In anticipation of the demise of Title 42, migrants started gathering across the river in Juarez, Mexico, though more than a few jumped the gun, and apprehensions in El Paso began running at up to 2,500 per day.

Facing a rootless population of migrants who had been released by DHS in his city after entering illegally, El Paso Mayor Oscar Leeser declared a seven-day state of emergency on December 17, which the city council extended for 30 days on December 23.

Abbott did not wait for DHS to implement its rather sketchy “plans” for handing the migrant surge. Instead, the Texas National Guard started placing containers and concertina wire along gaps in border fencing near the city. Abbott tweeted out what happened next:

Arizona. Abbott was plainly taking a page out of the book of his fellow Republican border-state governor, Doug Ducey of Arizona.

While DHS had promised in July to complete unfinished portions of border fencing at a major migrant border transit spot known as the Yuma Gap and other spots around that southwestern border town, it was apparently in no rush to do so.

Sensing the department’s inaction, Ducey had his officials place containers along the gap, as well as elsewhere in the vicinity, in August.

Those containers triggered a strongly worded letter from the federal Bureau of Reclamation that accused the state of trespassing on federal land. In its response, the state explained:

The myriad of federal agencies that claim jurisdiction on the southern border but do nothing to prevent the public nuisance caused by illegal immigration and criminal activity that exploits the open border is quite frustrating to those that live, work and recreate on that border and in our state.

To paraphrase Senate Majority Leader Chuck Schumer (D-N.Y.), “You take on the Bureau of Reclamation — they have six ways from Sunday at getting back at you,” and sure enough, on December 14, the governor was sued in federal court by the administration in a case captioned U.S. v. Ducey.

The “Roosevelt Reservation”. Which brings me to the original “Rough Rider” himself, Teddy Roosevelt. As the complaint in Ducey explains:

In 1907, President Theodore Roosevelt issued a proclamation known as the “Roosevelt Reservation,” declaring that it was “necessary for the public welfare that a strip of land lying along the boundary line between the United States and the Republic of Mexico be reserved from the operation of public land laws and kept free from obstruction” to protect against the smuggling of goods between Mexico and the United States.

To do this, the President “reserved from entry, settlement or other form of appropriation under the public land laws and set apart as a public reservation, all public lands within sixty feet of the international boundary between the United States and the Republic of Mexico, within the State of California and the Territories of Arizona and New Mexico.”

The Roosevelt Reservation applied only to public lands (i.e., those lands owned by the United States).

One set of Ducey’s containers was placed on land on the external boundaries of the Cocopah Indian Tribe’s West Reservation for which the Bureau of Reclamation had obtained an easement, another set on “Reclamation lands withdrawn and acquired pursuant to the Yuma Project and the Colorado River Front Work and Levee System”, and a third in Coronado National Forest — the only one on the Roosevelt Reservation itself.

On December 21, to avoid the issuance of a temporary restraining order and/or a preliminary injunction against the state by the district court judge in the case, Arizona agreed to remove its shipping containers by January 4, 2023.

Notably, that is three days after Ducey — who was barred from running for reelection in November due to term limits — is scheduled to leave office. It’s doubtful that his Democratic successor, Governor-elect Katie Hobbs, would have left those containers in place.

Texas Annexation of 1845. So why would Texas fare any better? That’s a question that brings me to the terms under which Texas, which had been a sovereign republic beginning in 1836, agreed to be annexed into the United States in 1845.

As the March 1, 1845, joint resolution of the U.S. House and Senate agreeing to the admission of the then-Republic of Texas into the union as the state of Texas explained, Texas agreed to hand over to the United States “all public edifices, fortifications, barracks, ports and harbors, navy and navy yards, docks, magazines and armaments, and all other means pertaining to the public defense”.

Texas, however, maintained “all the vacant and unappropriated lands lying within its limits”. Thus, as the Congressional Research Service has explained, the terms of the Roosevelt Reservation don’t “apply to lands that abut the Rio Grande River in Texas since there are no federal ‘public lands’ in Texas”.

You will note that the complaint in Ducey refers to “public lands within 60 feet of the international boundary ... within the State of California and the Territories of Arizona and New Mexico” but omits any reference to the Southwest border in Texas. Now you know why.

Abbott’s Actions. That doesn’t mean Abbott can drop containers anywhere he wants along the Rio Grande. That land may be privately owned or controlled in some way or another by some federal agency.

If they aren’t, however, and are simply state-owned land, Abbott can do as he likes, provided he doesn’t violate some other federal law (such as the National Environmental Policy Act (NEPA) or the Clean Water Act) or in doing so.

The Texas Office of the Attorney General has been serving as a virtual “shadow DOJ” on immigration issues throughout the first two years of the Biden administration (the reason why major challenges to Biden’s policies have names like Texas v. Biden and Texas v. U.S.), and you can trust that the state’s attorney general, Ken Paxton, has been following the events in Ducey.

Thus, it’s reasonable to assume that he knows where — and where not to — place container barriers along the Southwest border. He would likely relish the fight and, unlike Ducey, both he and Abbott were reelected in November and thus aren’t going away anytime soon. That said, Texas is likely avoiding a direct confrontation with the federal government they can’t win, while still pushing the envelope.

When it comes to protecting its portion of the Southwest border, Texas is in a stronger position than its sister states, thanks to the terms of the Texas annexation, which limited the reach of the Roosevelt Reservation 62 years later. That border was the “Wild West” when Texas entered the union in 1845, and thanks to Joe Biden, it increasingly looks like it is again, 177 years later.