U.S. Appeals Court Orders Texas to Remove Buoy Barrier in Rio Grande

A federal appeals court on Friday ordered the state of Texas to remove a barrier of floating buoys in the Rio Grande installed at the direction of Gov. Greg Abbott to block migrants trying to cross from Mexico, delivering a blow to the state’s efforts to curtail unauthorized immigration.

In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit in New Orleans declined a request by the governor’s office to reverse a previous finding by a federal judge that the barriers were illegal.

The decision came after months of legal wrangling between Governor Abbott’s office and the federal government. The previous judge had ordered the state to remove the barrier because it was an impediment to navigation on the river and a “threat to human life” for those trying to cross. The appeals court had issued an order temporarily keeping the buoys in place while the complex legal issues were resolved in court.

Still, more appeals are possible: The Texas governor has said that his office was ready to take the issue to the U.S. Supreme Court.

For more than two years, Mr. Abbott has been testing the legal limits of what a state can do to enforce immigration law, an issue that has been historically within the jurisdiction of the federal government. In a letter to President Biden over the summer, Mr. Abbott said that the state had a legal right to create a barrier along the border, in part because of a clause in the U.S. Constitution dealing with state powers during an “invasion.”

The Justice Department countered with a lawsuit arguing that the barrier violated a federal law that prohibits structures in navigable waterways without federal approval. The suit cited a portion of a federal law, the Rivers and Harbors Appropriation Act, that deals with federal jurisdiction over navigable waterways. The Justice Department also pushed back on Mr. Abbott’s assertion of a right to declare a migrant “invasion,” adding that only the federal government could make such a determination.

Mr. Abbott’s lawyers have argued that the barriers — roughly 1,000 feet of floating orange buoys — were needed near the banks of the river next to the city of Eagle Pass to secure “a border-security disaster,” and to deter a rising number of illegal crossings, according to court filings. They have also said that there was no evidence that the buoys “obstruct any navigable capacity of the river.”

The judge who initially ruled against the state found that the federal government was likely to prevail on the merits of the case whenever there was a full trial.

Last month, Texas legislators passed a far-reaching law that makes it a state-level crime to cross into Texas from Mexico without authorization. Mr. Abbott was expected to sign the bill, one he championed as part of a sharp escalation of his multibillion-dollar border security program, known as Operation Lone Star. The Texas House also approved an additional $1.5 billion for the state to use to construct its own barriers near the international boundary.

Democrats have criticized the law as inhumane. And on Friday, critics of Mr. Abbott’s immigration initiatives applauded the new court ruling. Joaquin Castro, a congressman from San Antonio, said in a statement that he looked forward to the day when the barriers would be gone.

“I’ve seen Governor Abbott’s border buoys for myself. They’re illegal and dangerous,” Mr. Castro said. “I applaud the Justice Department for today’s hard-fought victory in the conservative Fifth Circuit and look forward to seeing these death traps removed from the Rio Grande.”

Neither the governor’s office nor the attorney general’s had any immediate comment on the ruling.