Fifth Circuit Grants Stay in Texas Rio Grande Barrier Case

The buoys can stay, thanks to two judges appointed by Democratic presidents

By Andrew R. Arthur on September 13, 2023

As I reported on September 8, Senior Judge David Ezra, who is sitting by appointment on the U.S. District Court for the Western District of Texas, issued a preliminary injunction in U.S. v. Abbott, ordering the state of Texas to remove a “1,000-foot floating barrier in the Rio Grande River near Eagle Pass, Texas”. The state quickly sought a stay of that order from the Court of Appeals for the Fifth Circuit, which almost as quickly granted that stay in an unpublished order issued the same day. The buoys can stay for now, thanks in part to two judges appointed by Democratic presidents.

A Quick Recap. Texas began installing that barrier, which consists of a series of connected buoys in the Rio Grande adjacent to Eagle Pass, Texas, on July 10 to stop illicit human- and drug-smuggling efforts from the Mexican side, as part of the state’s ongoing border-security effort known as “Operation Lone Star”.

Lone Star was launched in March 2021, and as Texas Gov. Greg Abbott (R) explained at the time:

The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration ... . Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.

Since then, the state has sent Texas Department of Public Safety (DPS) assets and National Guard troops from the Texas Military Department to secure the border. I was embedded with DPS state troopers when I was at the border in August 2021, in and around where the buoys were later placed, and they were busy.

The riverine barrier was placed there because it is a high-traffic area between the border town of Eagle Pass and the city of Piedras Negras, in the Mexican state of Coahuila.

Two weeks later, Biden’s DOJ filed a civil enforcement action under the Rivers and Harbors Appropriation Act of 1899 (RHA) to prevent Texas from placing any more buoys in the river and to force the state to remove the ones in question.

The RHA bars the “creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States ... except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army”. Abbott never sought permission from the U.S. Army Corps of Engineers (COE) to install those buoys, and the state admitted he never planned to do so.

Judge Ezra concluded that this stretch of the Rio Grande was a navigable water covered by the RHA, and therefore Texas should have received permission from the COE.

He also rejected the state’s contentions that the Biden administration had failed to secure the border, triggering an invasion by foreign cartels that the state was permitted to respond to under Article I, section 10, clause 3 of the U.S. Constitution, finding that it “is a non-justiciable political question demonstrably committed to the federal political branches”, and not an issue for the courts.

On these grounds and others, the court granted the administration’s request for a preliminary injunction on September 6, giving the state until September 15 to reposition the buoys to the Texas side of the riverbank. As I noted in my earlier post, the court gave short shrift to the state’s drug-control claims, focusing largely on the illegal-migrant issues in the case when not discussing the navigable waters part.

Texas’ “Opposed Emergency Motion to Stay”. The next day, Texas filed an Opposed Emergency Motion to Stay Judge Ezra’s order pending appeal. Key to that motion is the state’s disagreement with Judge Ezra’s conclusions that this stretch of the Rio Grande is “navigable”.

Critically, the state noted that the federal government’s own witness had admitted that “he’d never seen commercial navigation in this river segment”, and instead depended on a government list, which itself relied “on a study ‘more than four decades old’”, that said it was. The state continued:

That study relays governmental reporting that there “has never been any ‘practical navigation’ between Roma ... and El Paso,” a 1000-mile stretch that includes Eagle Pass; that only one “extraordinary” military expedition passed Roma but no “substantial items of commerce were shipped from this point”; that “actual accounts of commercial travel [were] lacking” because “[a]bove Laredo up to Eagle Pass ... navigation was impeded by rocks and ledges”; and that the “present use” test couldn’t justify navigability as there was “no commercial activity occurring within the study area” in 1975.

The navigability of the Rio Grande in this Eagle Pass segment is not only factually relevant to whether the RHA applies to those buoys, but also, the state asserts, it has serious constitutional implications.

Application of the RHA to this segment, the state argues (likely correctly), relies on Congress’ power under the Commerce Clause, Article I, section 8, clause 3 of the U.S. Constitution, “to regulate commerce with foreign nations, among states, and with the Indian tribes”.

Thus, Texas contends, “covered waters must be ‘of practical service as a highway of commerce’” for Congress to act, but “the only commercial activity referenced by the US is ‘millions of dollars in illicit commerce ... crossing the Rio Grande’ in Maverick County”, where Eagle Pass is located.

Therefore, according to the state’s motion, “A stay is warranted while this Court analyzes the dubious suggestion that Congress passed the Act so the Corps could impede State efforts to stop drug smuggling and human trafficking”.

Moreover, the state described the federal government’s argument that the presence of the buoys is “injuring” diplomatic relations between the United States and Mexico as “contrived”, noting:

Cabinet-level officials recently called US-Mexico relations a “strong and enduring bond[] of friendship and partnership.” ... Indeed, the Secretary of State couldn’t recall times of “stronger partnership and collaboration” between the countries, even though the buoys had been in place for weeks. [Internal citations omitted.]

Even in politics and diplomacy, you can’t have it both ways.

Finally, the state argued that Judge Ezra erred in ignoring its arguments that removing the buoys would cause it harm:

It’s in the public interest to reduce the flow of fentanyl, to combat human trafficking, to protect Texans from unlawful trespass and violent attacks on their property by criminal cartels, and to minimize the risks to migrants of drowning while journeying to and through illegal entry points. ... When Texas raised such issues, they were wrongly said to be “of [no] concern to the Court.”

The Fifth Circuit’s Terse “Unpublished Order” and the Political Makeup of the Panel. A three-judge panel of the Fifth Circuit granted that stay in a terse “Unpublished Order”, which reads in its totality: “IT IS ORDERED that Appellants’ motion for administrative stay of the order of the Western District of Texas, Austin Division dated September 6, 2023, is GRANTED pending further order of the Court”. That’s it — no further explanation.

Although, as a former judge, I’m loath to read any political slant into judicial orders, it should be noted that this was a “per curiam” order, meaning it was issued by the panel as a whole and not written by any of those three judges, and that one of the three — James E. Graves, Jr., from Mississippi — was appointed to the court by President Obama in 2011, while another — Carl E. Stewart from Louisiana — was appointed by President Clinton in 1994.

If either wanted to dissent, he could have; neither did. Thus, this is not a “Texas” order per se, nor even a “Republican” order from a court on which GOP-appointed judges outnumber ones appointed by Democratic presidents 12 to 4. For what it’s worth, Judge Ezra was appointed by President Reagan in 1988 and usually sits on the U.S. District Court for the District of Hawaii.

None of this is to say that Texas’ arguments are so overwhelming that they cross political or even state lines. Rather, it’s to suggest that there are serious issues in this case that touch on the ability of states under our federal system to protect themselves from criminal threats when the federal government itself fails to act.

The border lawsuits that have come out of Texas of late (Texas v. Biden, the “Remain in Mexico” case, most prominently) have been state efforts to force the administration to secure that border. Abbott is different, because the administration wants to force Texas not to do something that plainly does secure the border. And thanks to two Democratic-appointed judges, Texas can keep its buoys in place, for now.