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Judge Orders Texas to Move Barrier From Middle of the Rio Grande


A federal judge ordered Gov. Greg Abbott on Wednesday to move a barrier of floating buoys in the Rio Grande that was placed by the state of Texas to discourage illegal crossings from Mexico, concluding it was an impediment to navigation on the river and a “threat to human life.”

Judge David Ezra of the U.S. District Court in Austin ordered the state to move the roughly 1,000-foot barrier to the U.S. banks of the river as quickly as possible while the legal case proceeded.

The Justice Department filed suit in July, arguing that the barrier violated a federal law that prohibits structures in navigable waterways without federal approval.

It said the barrier, placed in a section of the river in the border city of Eagle Pass, Texas, endangered migrants, hampered the operations of the Border Patrol and harmed diplomatic relations with Mexico.

The judge, in issuing the preliminary injunction on Wednesday, found that the federal government was likely to prevail on the merits of the case whenever there was a full trial. The judge gave the state of Texas until Sept. 15 to move the barrier.

The court found that the problems posed by the barrier, which federal authorities said included a risk of drowning by those trying to cross the river, outweighed the interest that Texas had in controlling migration into the state.

Mr. Abbott’s office issued a statement vowing to appeal the decision. “Texas is prepared to take this fight all the way to the U.S. Supreme Court,” it said.

The governor, who has pushed the legal limits of state action on immigration, appeared eager for the court fight over his authority to create a barrier along the border. In a letter to President Biden in July, the governor argued that he had the legal right to do so, in part because of a clause in the U.S. Constitution dealing with state powers during an “invasion.”

The Justice Department in its lawsuit focused on what it said was Texas’ violation of a federal law, the Rivers and Harbors Appropriation Act, dealing with federal jurisdiction over navigable waterways. Its lawyers also pushed back on Mr. Abbott’s assertion of a right to declare a migrant “invasion,” arguing that only the federal government could make such a determination.

“Whether and when an ‘invasion’ occurs is a matter of foreign policy and national defense, which the Constitution specifically commits to the federal government,” the Justice Department’s lawyers argued in legal filings.

Judge Ezra said during a hearing last month that he did not intend to broaden the argument over the buoys into a political debate over immigration, saying he was “not here to engage in any kind of political comment in this decision.”

The court fight represented the first direct challenge by the federal government to Mr. Abbott over his increasingly aggressive effort to stop migrants from entering the United States, a sweeping, multibillion dollar program known as Operation Lone Star.

In their response papers, lawyers for Mr. Abbott and the state of Texas argued that the rivers and harbors law did not apply because the Rio Grande in that section was too shallow for navigation, and because the buoy barrier was not physically attached to the riverbed.

They said Texas also had the legal authority to deploy the buoys because illegal crossings by migrants and the smuggling of drugs from Mexico constituted an invasion, which Mr. Abbott had the power, they argued, to declare and combat under the U.S. Constitution.

The state’s lawyers, in their filings, criticized the judge’s refusal to hear evidence about the effect of migrant crossings during the hearing, suggesting it could provide grounds for a successful appeal. “Failure to weigh such evidence would be reversible error,” they wrote.

Mr. Abbott has said that the state operation is intended to address the large number of migrants coming to the United States outside lawful ports of entry in the face of what he and other Republicans say is inadequate border enforcement by the Biden administration. The governor has said that Eagle Pass, a small border town that in the last two years has seen a rise in the number of arriving migrants, would not be the only place where Texas might deploy river barriers.

The judge’s order also halted any new floating barrier construction.

Since the decision was not a final judgment but only a preliminary injunction, “the court is directing that the buoy barrier be moved from the main waters of the Rio Grande River to the riverbank, rather than removal entirely from the river,” the decision noted.

The federal government, in its filings, said the barriers made rescuing migrants more hazardous for Border Patrol agents, and were also hazardous for any migrants who might be in distress while trying to cross the river. In recent years, according to the filings, there have been 89 water-related deaths of migrants in and around Eagle Pass.



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