Texas Border Buoys: Governor Abbott’s Victory in the Fifth Circuit Court Ruling

Estimated Time to Read: 7 minutes

In July 2023, the state of Texas deployed a floating barrier consisting of bright orange buoys along a 1,000-foot stretch of the Rio Grande near Eagle Pass. This action, part of Texas Governor Greg Abbott’s (R) broader strategy to curb illegal immigration and drug trafficking, quickly became a focal point of legal and political debate. The initiative aimed to deter illegal border crossings, but it also sparked a lawsuit from the United States federal government, leading to a significant legal battle, which, as of Tuesday, is seemingly resolved, albeit for now, by the Fifth Circuit Court of Appeals.

The Floating Barrier Objective

Governor Abbott’s decision to install the barrier was a response to the increasing number of illegal border crossings and the associated challenges of drug trafficking and human smuggling. The barrier, a series of tethered buoys anchored by concrete blocks, was designed to make crossing the river more difficult and to redirect migrants to official entry points where they could be processed legally.

Legal Challenges

The federal government swiftly reacted to the installation of the barrier by filing a lawsuit against the state of Texas, claiming that the barrier violated the Rivers and Harbors Appropriation Act of 1899 (RHA). The RHA prohibits the creation of any obstruction to the navigable capacity of any waters in the United States without Congressional approval. The government argued that the buoys obstructed the navigable capacity of the Rio Grande and that Texas had not obtained the necessary authorization from the U.S. Army Corps of Engineers.

District Court Ruling

Initially, the U.S. District Court for the Western District of Texas sided with the federal government, granting a preliminary injunction that required Texas to move the barrier to the Texas riverbank but did not mandate its complete removal. Texas promptly appealed this decision, arguing that the barrier did not obstruct navigable waters and that it was a necessary measure for state security and border control.

Fifth Circuit Court of Appeals Decision

The case escalated to the United States Court of Appeals for the Fifth Circuit. A two-to-one panel initially affirmed the district court’s injunction, but the full court later vacated this panel opinion, stayed the preliminary injunction pending appeal, and granted a rehearing en banc.

Legal Standards for Preliminary Injunction

The Fifth Circuit examined whether the district court abused its discretion in granting the preliminary injunction. The test for a preliminary injunction requires the party seeking relief to demonstrate:

1. Likelihood of success on the merits.
2. Likelihood of suffering irreparable harm without an injunction.
3. Balance of equities tips in its favor.
4. An injunction is in the public interest.

The court emphasized that the likelihood of success on the merits is the most critical factor.

Analysis of Navigability

The primary question was whether the United States could likely prove that the barrier was located within a navigable stretch of the Rio Grande, as the RHA only applies to navigable waters. The court examined the historical and present navigability of the Rio Grande at the barrier’s location.

• Historical Navigability: The court reviewed historical accounts, statutory provisions, treaties, and previous Corps studies to determine whether the river stretch was historically used or suitable for commercial navigation. They found the evidence insufficient to prove historical navigability. The cited treaties and statutes were precautionary and did not affirm navigable capacity. The court concluded that sporadic historical uses and limited evidence of commerce did not establish the river’s historical navigability.

• Reasonable Improvements: The court also assessed whether reasonable improvements could make the river navigable. The 1975 Corps study suggested that it was physically possible to improve the river for navigation using reservoir flows. However, the court noted that the study did not address the reasonableness of such improvements, their ecological impact, or economic feasibility. Thus, the United States failed to show that reasonable improvements could make the river navigable.

Conclusion on Likelihood of Success

The Fifth Circuit found that the district court had erred in its finding that the Rio Grande, at the location of the barrier, was navigable. The court emphasized that navigability must be established by clear evidence of commercial use or the potential for such use in the river’s ordinary condition. The evidence presented, including historical uses and the feasibility of reasonable improvements to the river for navigation, was deemed insufficient to prove that this stretch of the Rio Grande was navigable under the RHA.

Other Preliminary Injunction Factors

The court also evaluated the remaining preliminary injunction factors:

• Irreparable Harm: The court found that the district court erred in concluding that the United States would suffer irreparable harm without the injunction. The injunction only required moving, not removing, the barrier, which would not address the alleged diplomatic harms.

• Balance of Equities and Public Interest: The district court’s reasoning that the barrier threatened human life, impaired navigation, and violated the RHA was undermined by the lack of evidence for navigability and safety threats. Texas argued that the barrier was designed to save lives and deter illegal activities effectively.

Final Decision

The court concluded that the United States had not carried its burden of showing a likelihood of success on the merits, the most crucial factor in granting a preliminary injunction. The Fifth Circuit dissolved the stay pending appeal, reversed the district court’s order granting a preliminary injunction, and remanded the case with instructions to vacate the preliminary injunction.

Implications of the Decision and Reactions

The Fifth Circuit’s ruling has significant implications for the ongoing debate over state versus federal authority in border security matters. By overturning the preliminary injunction, the court effectively allowed Texas to maintain its barrier, at least temporarily, reinforcing the state’s position in its efforts to manage border security.

Governor Abbott hailed the decision as a victory for Texas, asserting that the barrier is a crucial component of the state’s strategy to address illegal immigration and associated criminal activities. On the other hand, critics argue that such unilateral actions by a state can undermine federal immigration policy and lead to increased tensions with neighboring countries, particularly Mexico, which had protested the barrier’s installation.

In recent legislative sessions, state lawmakers have appropriated billions of dollars for a myriad of border security efforts aimed at curbing the escalation of border crossings in the absence of action by the federal government. Undoubtedly, border security will remain an issue that lawmakers address in the upcoming 89th Legislative Session, set to begin in January 2025.

Conclusion

The deployment of the floating barrier by Texas and the subsequent legal battle underscores the complexities of border security and the interplay between state and federal jurisdictions. The Fifth Circuit’s ruling highlights the rigorous standards required to justify preliminary injunctions and the necessity of clear evidence when asserting federal regulatory authority over state actions. As the case progresses, it will continue to shape the discourse on the appropriate balance of power in managing the United States’ borders.

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