On December 1, the Fifth Circuit Court of Appeals sided with a prior district court ruling that had ordered Texas to remove the floating razor wire barriers it installed to prevent migrants from crossing the Rio Grande and entering the United States illegally.
The three-judge panel failed to come to a consensus, with Trump-appointed Judge Don Willett being the lone dissenter.
As the Texas Tribune reports, the two other judges ruled that because the Rio Grande was navigable, Texas had broken the law by failing to receive approval for the barriers from the United States Army Corps of Engineers, the body that regulates American waterways.
Under the Rivers and Harbors Act, "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." The Biden administration has done little to secure the border and in the absence of a federal strategy, Texas has taken up the cause of protecting its border itself.
The rules state that "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 … 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.”
Willett argued that the river could not accommodate boat traffic and thus giving Texas the legal ability to erect the barrier, though he did agree with his colleagues that the state had "not offered concrete evidence that the barrier has saved lives or reduced illegal crossings and drug trafficking."
In a statement on X, Governor Greg Abbott called the decision "clearly wrong," and vowed that he and Attorney General Ken Paxton would "seek an immediate rehearing by the entire court."
"We'll go to SCOTUS if needed to protect Texas from Biden’s open borders," he added.
Abbott announced the deployment of the barriers in June under Operation Lone Star, stating at the time that they would "proactively prevent illegal crossings between ports of entry by making it more difficult to cross the Rio Grande and reach the Texas side of the southern border."
The first 1,000 feet were laid out near Eagle Pass in July, and before long, the Biden administration demanded its removal. The Department of Justice quickly filed a lawsuit against Texas, and the case has been making its way through the courts since then.
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