The Justice Department heads to federal court in Texas on Tuesday to challenge the state’s latest effort to implement its own border security measures, a floating barrier of buoys in the Rio Grande that has raised humanitarian and diplomatic concerns.
Judge David A. Ezra of the U.S. District Court for the Western District of Texas, a Reagan appointee, will hear arguments in Austin about whether to halt the latest border security initiative in the state’s immigration enforcement operation at the U.S.-Mexico border.
The Justice Department in a lawsuit filed last month asked the court to order the barrier of buoys taken down, arguing that it constitutes an unauthorized and illegal structure obstructing U.S. waters in violation of river protection laws.
Texas, however, has countered that the federal government has failed to defend the state’s southern border, and that it “has a federal constitutional right to defend itself against invasion from even non-state actors.”
The case throws into the spotlight Texas Gov. Greg Abbott’s so-called Operation Lone Star, where state officers have been deployed to enforce federal immigration laws at the state’s shared border with Mexico.
Abbott, a frequent court opponent of the Biden administration over its immigration policies, launched the operation in March 2021 in response to record-high migration levels. Abbott’s office has described it as an effort to “fill the dangerous gaps created by the Biden Administration’s refusal to secure the border.”
Operation Lone Star already has grabbed national headlines for bussing migrants to Democratic-run cities, including New York City and Washington, D.C., which critics slammed as a political stunt to protest the administration’s migration policies.
And in a further effort to deter migration, state authorities announced in June they would begin constructing a floating barrier, made of buoys strung together, to block migrants from crossing the Rio Grande into Texas.
Speaking on Fox News last month, Texas Department of Public Safety Lt. Christopher Olivarez described the marine barrier as “another added layer of defense to what we have in place already with razor wire, boots on the ground, and boats in the water.”
A group of Democratic members of Congress from Texas slammed the buoy system in a recent letter to administration officials as “yet another dangerous stunt that prioritizes political posturing over the safety and well-being of both Texans and migrants.”
Migrant advocates have also warned the buoys threaten the lives of migrants seeking safety in the U.S. Earlier this month, Mexican officials reported that a dead body was found caught in the Rio Grande buoys.
‘Navigable’ waters
Tuesday’s hearing is likely to focus on how the court should interpret a key term in the federal river protection law cited by the Justice Department.
The Biden administration’s lawsuit focuses on alleged violations of the Rivers and Harbors Appropriation Act, which requires a federal government permit to construct structures in U.S. waters that are “navigable,” or able to be traversed by boat.
According to the DOJ, Texas did not seek or receive approval from the U.S. Army Corps of Engineers before installing the floating barrier earlier this month, which prevented the federal government from having the chance to examine potential environmental or safety risks.
Texas has argued that this law does not apply because the portion of the Rio Grande where the buoys were installed are not navigable. And if the court were to find those waters are navigable, the buoy system does not obstruct nor does it count as a banned “structure” under the law, the state argued.
A group of 22 Republican members of Congress filed a brief in the case earlier this month that urged the judge to closely scrutinize arguments about whether the river is navigable.
Reps. Jodey C. Arrington of Texas, Andy Biggs of Arizona and the other Republicans wrote that while they did not take a position on the policy or legal dispute over the buoy barrier, the federal government should have to “show its work” when defining whether a body of water is considered navigable.
Too broad an interpretation of the term could give federal agencies “unchecked power to regulate every ditch and stream that once upon a time could have carried a boat,” the lawmakers wrote.
International implications
Government officials have warned that Texas’ floating barrier could carry international concerns and threaten diplomatic relations with Mexico.
According to a declaration, signed by Jennifer T. Pena of the U.S. Section of the International Boundary and Water Commission and filed in the case, 787 feet of the 995-foot floating barrier are located within Mexico, while 208 feet are within the U.S.
Hillary Quam, the Department of State’s U.S.-Mexico border coordinator, said in another filed declaration the floating barrier “has become the subject of diplomatic concern between Mexico and the United States.”
She said Mexico has raised concerns, including that individuals swimming may get caught in the barrier, “at the highest diplomatic levels” and has “made it clear to the United States that it expects the United States to take action to obtain the prompt removal of the floating barriers.”
“If the barrier is not removed expeditiously, its presence will have an adverse impact on U.S. foreign policy, including our relationship with the government of Mexico,” Quam wrote.
The Mexican government has also said in a news release earlier this month that “the placement of chained buoys by Texas authorities is a violation of our sovereignty.”
In July, Rep. Veronica Escobar and other Texas Democrats wrote a letter to Secretary of State Antony J. Blinken and Attorney General Merrick B. Garland, warning that the barrier could infringe on several bilateral treaties between the U.S. and Mexico related to boundaries and allocation of waters.
“By placing buoys in the Rio Grande, Governor Abbott may be interfering with the natural flow of the river, potentially shifting the boundary between Mexico and the United States causing the United States to cede land to Mexico,” the lawmakers wrote.
In its Aug. 16 reply brief, the DOJ said that removal of the marine barrier “has remained a top-priority issue in foreign relations” between the U.S. and Mexico.
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