On July 30, the U.S. Court of Appeals for the Fifth Circuit issued a decision reversing a district-court preliminary injunction that would have required the state of Texas to move a 1,000-foot floating barrier in the Rio Grande near Eagle Pass, Texas, which the circuit court had previously stayed. In other words, Texas’s border buoy barrier can remain – for now. A number of perilous legal shoals that the state, the administration, and the courts will have to navigate lie ahead.
“Texas to Deploy Marine Barrier in the Rio Grande to Block New Surge of Immigrants”. Early last June, my colleague Todd Bensman revealed that Texas Gov. Greg Abbott (R) had “okayed an unusual new tool: a floating marine barrier to be deployed in the Rio Grande”. That barrier is part of the state’s ongoing response to the administration’s migrant surge, known as “Operation Lone Star”.
The riverine barrier was certainly novel. I’ve been on or around the border sporadically for most of my 32-year legal career, and seen all kinds of barriers there: Vietnam-era landing mat fences; bollard-style fences; thin post fences; chain-link fences; palisade fences; metal-mesh fences; brace and beam anti-ram barriers; so-called Normandy barriers; reinforced no-climb levees – you name it.
But they were all on dry land.
The river itself is an impediment of sorts, but in many places, it can be easily forded and the smugglers know all of those crossing-points. And for roughly 1,250 miles of the 1,954-mile U.S.-Mexico line, the Rio Grande is the border.
A month after Bensman broke that news, the state installed the 1,000-foot-long border buoy barrier in the middle of the river across a major smuggling route near the border town of Eagle Pass.
U.S. v. Abbott. The Biden-Harris administration didn’t approve. On July 24, 2023, DOJ filed a complaint in federal district court in Austin, in U.S. v. Abbott, seeking to force the state to remove the border buoy barrier and to enjoin Texas from installing anymore riverine barriers.
Austin, the state capital, isn’t actually on the border, but then the jurist to whom the case was assigned, Senior Judge David Ezra (appointed by President Reagan in 1988) technically sits on the U.S. District Court for the District of Hawaii, though Chief Justice Roberts “permanently designated” him to sit in Austin in 2012.
The Rivers and Harbors Appropriation Act of 1899. In any event, DOJ premised its claims not on the federal government’s plenary immigration power or on the Immigration and Nationality Act (INA), but instead on section 10 of an 1899 statute, the Rivers and Harbors Appropriation Act (RHA).
That section of the RHA is codified at 33 U.S.C § 403, and 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.]
When Texas installed those buoys in July, it had no intention of asking permission from the U.S. Corps of Engineers (COE) or anyone else in Washington, D.C., as the court later noted.
In his September order granting DOJ’s request for a preliminary injunction, however, Judge Ezra found that COE permission was required before Texas could install its buoys.
That holding was premised on four factual findings by the court: (1) the section of the Rio Grande where the buoys sit 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.
Fast forward to this week and a majority of the Fifth Circuit held that Judge Ezra “clearly erred” in finding that DOJ (which by law bears a “heavy burden” in seeking a preliminary injunction) could likely prove that the border buoy barrier was placed in a navigable section of the river.
On that basis, a majority of the circuit judges reversed the district court’s preliminary injunction, which had required Texas to remove the border buoy barrier from the Rio Grande. The court remanded the case back to the district court, which is currently scheduled to hear the merits of DOJ’s claims.
The Invasion Clause. The applicability of statutes passed during the McKinley administration is not that interesting, and analyses of arguments about how they apply are likely less so.
While its factual RHA findings are the basis of the Fifth Circuit’s decision, Texas’s constitutional arguments – which the majority refused to consider – underscore what’s really at issue in this case.
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 invoking the invasion clause. He explained in a later 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., illegal crossings of the Rio Grande.
In its August 9, 2023, response to DOJ’s motion for a preliminary injunction, Texas cited Abbott’s invasion clause invocation to argue the court should construe the RHA “narrowly”.
It explained: “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” (emphasis added; brackets in original).
Does the invasion clause apply to state efforts to repel “invasions” by non-sovereign groups like transnational cartels? It’s a great question, but it hasn’t been resolved in this case, or at least not yet.
For his part, Judge Ezra wasn’t convinced. He found Congress had already weighed such policy interests in the RHA when it concluded “the nation’s interest in free navigation of its waterways is supreme to unauthorized state action”.
In any event, he held, Texas’ invasion claim was “a non-justiciable political question demonstrably committed to the federal political branches” – and not an issue for the courts.
That kicked it up to the circuit court. Had it ruled in Texas’s favor on that question, both it and the district court would have been deprived of jurisdiction to hear DOJ’s claim. Instead, the Fifth Circuit majority tersely “avoided” the state’s invasion clause claims in footnote 86.
In his concurrence, however, Judge Andrew Oldham offered more expansive reasoning for not taking the invasion clause bait.
He did so in response to a concurrence and dissent by Judge James Ho, in which the latter agreed with the majority’s reversal of Judge Ezra’s preliminary injunction, but argued that the government’s case should be dismissed, not remanded.
Judge Ho’s concurrence and dissent begins:
A sovereign isn’t a sovereign if it can’t defend itself against invasion. Presidents throughout history have vigorously defended their right to protect the Nation. And the States did not forfeit this sovereign prerogative when they joined the Union. Indeed, the Constitution is even more explicit when it comes to the States. Presidents routinely insist that their power to repel invasion is implied by certain clauses. But [the invasion clause] is explicit that States have the right to “engage in War” if “actually invaded,” “without the Consent of Congress.” . . .
Texas Governor Greg Abbott has invoked [the clause] in response to the ongoing illegal immigration crisis. A majority of the Nation’s governors have endorsed that decision. Former senior FBI officials have advised Congress that the illegal immigration crisis constitutes “an invasion of the homeland.” In response, the U.S. House of Representatives has formally recognized illegal immigration as a national security crisis, and a similar resolution is pending in the U.S. Senate. . .. So there is ample support, both among the States and at the National level, that this is a good faith invocation of Article I, section 10. [Internal citations omitted.]
His rather lengthy analysis both recounted attempts by Texas “to use military force to repel invasion” by “bands of criminals from Mexico” during the 19th century, as well as more recent decisions on the United States’ use of the war power against non-sovereign entities (like terrorist groups).
Instead of sending the case back to the district court, he would have dismissed the matter entirely on grounds the courts lack jurisdiction to review Abbott’s “good faith” invocation of the invasion clause.
Judge Ho is believed to be on the shortlist of potential Trump Supreme Court candidates, and if he were nominated in the future, this invasion clause take will likely be used to oppose his confirmation. He’s an intellectual force to be reckoned with, however, and I pity the poor senator who picks the fight.
Back to Judge Ezra. As noted, the circuit court sent the matter back to Judge Ezra, who has scheduled a trial on the merits of the government’s claims for August 6. For now, Texas’s border buoy barrier can remain in the Rio Grande, even though major issues – including the effect of Texas’s invocation of the invasion clause in response to the administration’s migrant surge – remain unresolved. Stay tuned.