Anti-migrant buoys to remain (for now) as Texas continues legal fight with Biden Administration

Today, the Fifth Circuit Court of Appeals ruled it will continue to allow the use of controversial floating barriers implemented by the state of Texas along the Rio Grande as they reexamine legal efforts to overturn the policy. 

Installed by Texas Gov. Greg Abbott (R) last July, the 1,000-foot-wide barrier is designed to prevent migrants — who are often seeking asylum — from crossing the waterway. The Department of Justice then proceeded to bring a lawsuit against the Lone Star State, arguing the policy violated federal environmental laws. Immigration advocates and Texas Democrats have also raised concerns about the dangers of buoys, which they maintain will make crossing waterways even more dangerous and drown migrants.

Last September, U.S. District Judge David A. Ezra concurred with the DOJ and ruled that the Abbott administration must remove the buoys. 

“The Court finds that the barrier’s threat to human life, its impairment to free and safe navigation, and its contraindication to the balance of priorities Congress struck in the RHA outweigh Texas’s interest in implementing its buoy barrier in the Rio Grande River,” Ezra, a conservative judge who was appointed by President Ronald Reagan, said in his ruling. 

But Texas immediately appealed the decision, and the buoys were left intact. Following the September ruling, Abbott claimed in a statement that “President Biden’s willful refusal to acknowledge that Texas is rightfully stepping up to do the job that he should have been doing all along.” 

“We will continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers.”

However, last month, the Fifth Circuit sided with Ezra in a 2-1 vote. The state of Texas then requested an “en banc hearing,” a rare legal maneuver in which the entirety of the appellate court’s judges review a suit. This configuration will hear arguments in May, which means the buoys will remain until then. 

Such aggressive border policy is not new: From his Operation Lone Star — which granted Texas law enforcement the ability to intervene in immigration issues — to recent bills that would beef up border barriers and create criminal penalties for unauthorized crossings into Texas by migrants, Abbott has made militarizing the Texas border a cornerstone of his administration.

In response to the latter, 30 retired immigration judges called Abbott’s actions unconstitutional.

“The proposed Texas legislation, which would allow a state court magistrate judge to issue a removal order, is not lawful. Immigration is plainly a federal function,” the statement says. “State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation. State magistrate judges cannot conduct immigration proceedings for the same reason that federal Immigration Judges cannot adjudicate Texas state criminal cases.”

Yet such legal pushback hasn’t deterred Abbott, who has only ramped up his rhetoric surrounding migration. In an audio clip recently published by Heartland Signal, the governor complained to conservative talk show host Dana Loesch that he wasn’t able to order the shooting of immigrants because "the Biden Administration would charge us with murder."

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Jamie Larson