Last week, Federal District Judge David Ezra (appointed to the bench by President Ronald Reagan) ruled that the state of Texas and its Governor Greg Abbott likely acted unlawfully when they placed a system of buoys and barriers in part of the Rio Grande River. A federal statute expressly forbids “creation of any obstruction . . . to the navigable capacity of any of the waters of the United States” unless specifically authorized by Congress or the Secretary of the Army. Because Texas lacked any such authorization, the United States, which brought the lawsuit, had proven that it would likely succeed on the merits of its case. Thus, Judge Ezra’s carefully reasoned opinion ordered Texas to remove the floating barrier system by September 15.
Unbowed, Texas sought an emergency stay of the order from the U.S. Court of Appeals for the Fifth Circuit, which promptly obliged. On Friday, the appeals court issued an administrative stay.
As a technical matter, such an order does not necessarily reveal the appeals court’s view of the merits. It merely preserves the status quo while the parties file briefs and the court considers the case. That seemingly makes sense here; if Texas ultimately prevails on its appeal, it will be entitled to keep the floating barriers in place; an administrative stay thus avoids the potential waste of requiring the state to dismantle the barrier system only to put it back in place.
However, the United States had argued that dismantling the barrier system would take only a couple of days, so that there was no need for an administrative stay. The appeals court could have considered the emergency stay request on its merits in time for a substantive stay decision before the September 15 deadline. Accordingly, it is possible to see the administrative stay as a portent of success for Texas on the merits of its appeal.
If so, that would be a bad omen. As Judge Ezra conclusively showed, the floating barrier system is plainly unlawful. Moreover, the main thrust of Texas’s argument undermines federal supremacy in a way that is disturbingly reminiscent of the state’s Confederate past.
The Statutory Arguments
In the district court, Texas made a number of statutory arguments that it renews on appeal. Some of these contentions are quite far-fetched. For example, Texas asserts that the portion of the Rio Grande in which it has placed barriers does not constitute “navigable” waters, even though the legal definition of such waters is extremely capacious. As Judge Ezra explained, under the controlling Supreme Court precedents, even bodies of water that have not been used by vessels in years count as navigable.
Likewise implausible is Texas’s objection that because it aims to block migrants crossing the river from south to north it has not obstructed navigation along the river from east to west or vice-versa. The claim appears to be self-defeating on its own terms. One violates the statutory prohibition on obstructing navigation regardless of whether that navigation crosses a river or travels downstream or upstream. Moreover, the barrier system in fact obstructs up-or-down traffic as well as traffic across the Rio Grande.
As described by the district court opinion, the barrier system is a substantial obstacle around which anyone navigating the river in any direction would have to detour to avoid. It consists of
about 1,000 feet of large four-foot spherical orange buoys fastened together with heavy metal cables and anchored in place with heavy concrete blocks placed systematically on the bed of the Rio Grande River. [The] buoys are surrounded by 68 anchors of about 3,000 lb each, and 75 anchors of about 1,000 lb each. Attached to the bottom of about 500 feet of the floating barrier is an “anti-dive net” made of stainless-steel mesh extending two feet down into the water.
The barrier system—which, after all, was designed for the purpose of obstructing migration—is thus indeed an obstacle to navigation on the river.
An Inapplicable Emergency Loophole
In addition to its implausible parsing of the statutory text, Texas makes a more sweeping argument. The federal government, it says, has failed to halt unlawful border crossings by undocumented immigrants and drug traffickers, thus leaving the state to fill the enforcement gap.
As Judge Ezra observed, however, the factual premise is dubious. Drug traffickers typically enter the United States at border crossings, smuggling their goods across. Meanwhile, the recent increase in migrants consists chiefly of asylum seekers, who turn themselves in. Interdicting persons sneaking across the Rio Grande will not have a substantial impact on the influx of drugs or persons.
Moreover, even if Texas were correct that its floating barrier system could be effective in preventing contraband and persons from entering the country, that would not legally justify its policy.
To be sure, one can posit circumstances in which federal inaction justifies states taking emergency border security measures. If Canadian Mounties suddenly attacked from Manitoba, Minnesota state troopers could fight back without waiting for Governor Tim Walz to obtain authorization from President Biden. But the constitutional permission for states to use force at the border is closely circumscribed. Article I, Section 10 allows such actions by states without the consent of Congress only when “actually invaded, or in such imminent danger as will not admit of delay.”
Even accepting Governor Abbott’s dubious assumption that drugs and undocumented immigrants crossing the southern border count as an invasion, he would be justified in acting only so long as there was no time for the federal government to act. Here, however, both Congress and the President are fully apprised of the border crossing issues and have unequivocally expressed their opposition to the Texas action—Congress through a statute it has not repealed and the President through the lawsuit.
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The Lone Star State has a revered tradition of going it alone. Yet that tradition has limits. As the Supreme Court stated in the 1868 case of Texas v. White, although the Constitution, through the Tenth Amendment, preserves various aspects of state sovereignty, relative to the autonomy states enjoyed under the Articles of Confederation, under the Constitution, “the powers of the States were much restricted.”
The White case concerned the legality of certain bonds in light of Texas’s attempt to secede and join the Confederacy during the Civil War. To resolve the bond question, the Court had to determine whether Texas was a state while it was in rebellion. Chief Justice Salmon Chase gave the Court’s emphatic affirmative answer. He declared that when the Republic of Texas surrendered its independence in 1845, it joined “an indestructible Union composed of indestructible States.” Despite Texas’s purported secession, it had been a state of the United States at all relevant times.
So Texas remains, despite repeated calls by Texas Republicans for the state to try to secede again. And as part of a Union in which the federal government bears responsibility for national security and immigration policy, Texas cannot go rogue.
Governor Abbott apparently does not comprehend these fundamental facts about our Constitution and our nation. It remains to be seen whether the judges of the Fifth Circuit (and ultimately the Justices of the Supreme Court) do.
Buoys being used as a barrier are chained along the center of the Rio Grande, Monday, Aug. 21, 2023, in Eagle Pass, Texas. (AP Photo/Eric Gay)
