Judge Orders Texas to Remove Border Buoys

‘Governor Abbott announced that he was not “asking for permission”’ — but what about the drugs?

By Andrew R. Arthur on September 8, 2023

On September 6, Senior Judge David Ezra of 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”. That barrier is a series of buoys the state had placed in the river to impede drug smuggling and the illegal entry of migrants into the United States as part of its “Operation Lone Star”, which the court described as an “anti-immigration program”. The navigability of the Rio Grande at that spot was the focus of the order, but it’s the administration’s immigration policies that are really in the dock. Even if the state is not on solid ground on that issue — what about the drugs?

The Rivers and Harbors Appropriation Act of 1899. In pertinent part, section 10 of the Rivers and Harbors Appropriation Act of 1899 (RHA), codified at 33 U.S.C § 403, provides:

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. [Emphasis added.]

The state of Texas began installing those buoys on July 10, and it had no interest in filing plans with the U.S. Corps of Engineers (COE) or anyone else in Washington, D.C. As the court explained: “Governor Abbott announced that he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier.”

Not surprisingly, Biden’s DOJ filed a civil enforcement action under the RHA two weeks later to prevent Texas from placing any more buoys in the river and to force the state to remove the ones in question, near Eagle Pass, Texas.

The ultimate basis for the court’s order was encapsulated in the next sentence in that order: “Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.”

The RHA portion of the decision was premised on the court’s finding that (1) the Rio Grande in the spot where the buoys were placed is a “navigable water of the United States”; (2) those buoys obstruct “the navigable capacity of the Rio Grande”; (3) Texas was required to obtain a permit from the COE; and (4) it never sought, let alone obtained, such a permit.

I am not and do not presume to be a maritime lawyer (though I dealt with the COE during my early, brief, and ultimately abandoned foray into government contracts law), and this was a largely factual finding upon which I lack sufficient knowledge to opine. I will note, however, that I have been in the spot where the buoys were ultimately placed, and the only boats I ever saw there were tiny pleasure craft and law-enforcement vessels.

Texas quickly filed a notice of appeal from Judge Ezra’s order, so perhaps the Fifth Circuit will disagree with the court’s factual conclusions. Or maybe not.

The “Invasion Clause”. Article I, section 10, clause 3 of the U.S. Constitution is known as the “invasion clause”, and it states:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. [Emphasis added.]

On July 7, 2022, Texas Gov. Greg Abbott issued Executive Order GA-41, in which he invoked the invasion clause, explaining in a later November 16 letter to the heads of the state’s Department of Public Safety and its Military Department that he did so “to fully authorize Texas to take unprecedented measures to fight back against the invasion at our border”, i.e., the Rio Grande.

In its August 9 response to the government’s motion for a preliminary injunction, Texas cited that gubernatorial invocation in arguing the court should construe the RHA “narrowly”, asserting: “Governor Abbott has asserted this power because, due to President Biden’s open-border refusal to faithfully execute federal immigration laws, the United States has unconstitutionally refused to ‘protect [the State of Texas] against Invasion’ by transnational cartels” (brackets in original).

Judge Ezra was not swayed, finding that Congress had already weighed such policy interests in concluding in the RHA that “the nation’s interest in free navigation of its waterways is supreme to unauthorized state action”, and in any event, that Texas’ invasion claim “is a non-justiciable political question demonstrably committed to the federal political branches” — and not an issue for the courts.

As he noted, the circuit courts have traditionally sidestepped state claims that illegal immigration surges constitute an invasion, because there are no good standards by which to judge such a claim and because immigration is tied to the foreign policy and defense powers, which are in the exclusive province of the federal government.

And it is true, as the court concluded, that the control of illegal immigration has traditionally been held to be the job of the federal government’s “political branches” — that is the president and Congress.

Respectfully, however, the current administration has — if anything — driven the illegal immigration about which Texas complains through its overarching release policies for border migrants (as a different district court judge concluded in March) and Congress has — to this point — been largely impotent in forcing the president to do anything differently.

Failing to act is still action (of a sort), and I have a degree of sympathy for the courts in their unwillingness to interpose themselves in the middle of what is, ultimately, a dispute between two branches separated by a couple miles of Pennsylvania Avenue.

Taken to its logical extreme, however, you could have a scenario in which neither of those political branches had any interest in restricting the entry of any alien into the United States, which would leave the states twisting in the wind. Would the courts still fail to act in that situation? To be honest, I’m not sure.

What About the Drugs? Control of illegal immigration is one thing that the courts have held is within the exclusive remit of the federal government (and Congress in particular, as Judge Ezra alluded to), but controlling the influx of drugs is a different question. States can’t really enact their own immigration laws, but they can and do implement their own drug-interdiction laws.

As noted, Texas specifically referred to the need to have a river barrier to stop the drug cartels, but the court gave the buoys’ effectiveness in stopping the flow of illegal narcotics short shrift, consigning it to a footnote, which reads, in its totality:

This Court is sympathetic with the aim of curtailing illegal immigration and illegal importation of drugs. However, the vast majority of illegal drugs which enter Texas, and indeed the United States in general, come through ports of entry by using covert means and not through this stretch of the Rio Grande River. See Michel Martin, How Do Illegal Drugs Cross the U.S.-Mexico Border?, NPR (April 6, 2019). https://www.npr.org/2019/04/06/710712195/how-do-illegal-drugs-crossthe-u-s-mexico-border (“So the drugs that are actually taking the lives of people here in the United States — methamphetamine, cocaine, heroin, fentanyl — almost universally come through the ports of entry along the southern border …. well over 90 percent.”).

A couple of points are in order.

First, one would hope that in a major case involving significant issues of national importance that the court would have a better resource upon which to draw for information than NPR.

Second, I don’t know Michel Martin, but the article in question is actually an April 2019 interview between the reporter and Gil Kerlikowske, who had served as commissioner of CBP and (before that) as director of the White House Office of National Drug Control Policy, in both positions under President Obama. Here’s the pertinent part of that interview:

MARTIN: So, first of all, just walk me through it. How do most illegal drugs enter the U.S.?

KERLIKOWSKE: So the drugs that are actually taking the lives of people here in the United States — methamphetamine, cocaine, heroin, fentanyl — almost universally come through the ports of entry along the southern border — so that is people that carry them on their bodies or even in their bodies or cars or vehicles. And then the second way is through the international postal mail service.

MARTIN: And when you say most, what do you mean? Like, 50 percent, 60 percent, 90 percent?

KERLIKOWSKE: Oh, well over 90 percent. People don't backpack or try to sneak those drugs across the border between the ports of entry because, one, they could be caught by the Border Patrol. Number two, they don't really trust those people to do that. So it's much better for them to have somebody that is taking the drugs through a port of entry where they're met on the other side of the port here in the United States, and those drugs are immediately taken.

Kerlikowske has over 40 years of law-enforcement experience, and thus is a pretty good source. The problem is that (1) the information on which he was then relying was based on his pre-Biden experience and (2) things at the border are a lot different now than they were under the Obama administration, let alone in April 2019.

In a September 5 post, I explained — in detail — just how much Biden’s border policies differ from all of his predecessors, and Obama’s in particular.

Consequently, the likelihood that a smuggler “sneaking those drugs” across the border would be “caught by the Border Patrol” is exponentially lower, and thus illegal cross-border transit is a much more appealing option for the cartels. Let me explain.

According to DHS statistics, in FY 2019, there were 150,090 known “got-aways”, that is aliens who crossed the Southwest border illegally without being apprehended by Border Patrol. In FY 2022, on the other hand, there were 599,000 Southwest border got aways, and on August 28, the Washington Examiner reported that there have been “at least 677,327” more in the first 10 months of FY 2023.

No cross-border drug mule wants to get caught, and it’s fair to conclude that there were any number of them in those got-away numbers. Nobody actually knows how many there were, because by definition we don’t know who they are or why they came.

That got-away tsunami is a direct consequence of the Biden border policies about which Texas complains. Agents are so busy apprehending, transporting, processing, caring for, and (usually) releasing “give-ups” — illegal entrants who cross and want to get caught in the reasonable expectation they will be released — that few agents are on the line to stop the got-aways — or the drugs they are carrying.

In fact, Biden’s first Border Patrol chief, Rodney Scott, told the Senate in a September 2021 letter that the cartels are orchestrating illegal migrant entries to create “controllable gaps” through which they can run drugs between the ports — not through them — and past overwhelmed agents.

In case you’re not convinced, consider “the drugs that are actually taking the lives of people here in the United States” Kerlikowske referenced — methamphetamine, cocaine, heroin, fentanyl — that have been seized by CBP coming through the Southwest border ports over the last three fiscal years.

According to CBP statistics, CBP officers there stopped 208,000 pounds of those drugs in FY 2021, 178,000 pounds in FY 2022, and 126,000 pounds in the first 10 months of FY 2023, and are on track for 151,200 seizure pounds this fiscal year. Does anyone really believe that the quantity of illicit and deadly drugs coming into the United States from Mexico has really dropped by 27.4 percent since FY 2021?

Even if Texas is not on solid legal ground in putting buoys in the Rio Grande to stop migrants from entering the state illegally, it has an argument those barriers are necessary to stop drugs from coming across the river. Relying on anecdotal statistics from NPR on how drugs entered the country in April 2019 is not the same thing as relying on solid evidence from today — but that’s what the court did.