Texas takes its border showdown with President Biden to a panel of judges on Thursday, arguing that the illegal immigrants streaming into the U.S. constitutes an invasion that the state has a right to repel — including by deploying its own floating wall in the Rio Grande.
The 1,000-foot-long string of buoys, which Texas calls “marine floating barriers,” has nearly eliminated illegal crossings and drugs near Eagle Pass, the state says.
But the Biden administration sued to get the floating wall torn down, saying Texas didn’t get the feds’ permission and arguing the buoys violate an 1899 law, the Rivers and Harbors Appropriation Act.
The case is the first significant test of the “invasion” theory, popular among conservatives, which argues states have the right under the Constitution to defend themselves in cases of an invasion. And that, Texas argues, is exactly what the migrant crisis has become.
“Governor Abbott has asserted this power here because the U.S. has unconstitutionally refused to protect Texas — and, more importantly, its citizens — against the dangers posed by transnational cartels,” Lanora C. Pettit, Texas’s principal deputy solicitor general, told the 5th U.S. Circuit Court of Appeals.
The floating wall is a line of orange spherical buoys lined shoulder-to-shoulder, with plates in between to prevent anyone from climbing over the seams. The buoys are anchored to the riverbed, deterring anyone from swimming under. And the buoys spin to prevent migrants from grabbing on.
It is backed up by razor wire on the U.S. shore as a further deterrence.
The floating wall has enraged the Mexican government, which blames several drownings on the buoys, and it has irked the Biden administration, which says the federal government gets the final say on what goes into international boundary waters.
It also turns out that most of the buoy is floating on the Mexican side of the river, according to the International Boundary and Water Commission.
Texas says the barriers work.
The Justice Department says they’re illegal under the 1899 law because they hinder navigation and commerce along the river.
Justice Department lawyer Michael T. Gray also dismissed Texas’s invasion claims, saying that’s not what the unprecedented surge of illegal immigrants is.
“An invasion under the Constitution is ‘armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state’s government,’” Mr. Gray told the justices in his brief. “It is not irregular migration or the alleged underenforcement of laws against illegal, transboundary activity by private, non-state actors. Such actions are insufficient by themselves to justify allowing states to ‘engage in War’ unilaterally.”
A district judge sided with the Biden administration and ruled the floating wall illegal. The 5th Circuit has allowed the buoys to remain in place while the case develops.
Conservatives have been itching for a fight over the invasion issue for several years, dating back to the early days of President Biden’s tenure and after he erased Trump-era get-tough policies that had kept a lid on border chaos.
As drug, migrant and terrorism suspect numbers grew, former senior Trump administration officials said the states could defend their own borders under the Constitution. Article I, Section 10, Clause 3 says states can deploy troops if they are “actually invaded, or in such imminent Danger as will not admit of delay.”
The Trump officials urged GOP-led states to test the power and after some initial resistance, Mr. Abbott — the only GOP governor left on the southern border — made a declaration last year.
“A state of war exists in Texas,” said the Immigration Reform Law Institute, an outfit that backs stricter immigration controls and filed a brief backing Texas in the appeals court case.
Christopher J. Hajec, IRLI’s director of litigation, said the case will answer what role courts will play in refereeing the matter.
“The legal crux of the case is whether courts think they should become involved in issues such as whether Texas has been ‘invaded’ by the cartels within the meaning of the state self-defense clause,” Mr. Hajec told The Washington Times. “The Constitution gives that kind of military question to the political branches — here, Texas — to decide. The court ordered accelerated briefing on this, maybe just to decide that Biden’s lawsuit is non-justiciable, and throw it out.”
In addition to IRLI, more than a dozen other GOP-led states have filed a brief backing Texas. They said the case is a test of states’ “constitutional right to defend themselves.”
The Times reached out to immigrant-rights groups for this story but they chose not to comment.
The invasion declaration is just part of Mr. Abbott’s Operation Lone Star, his ambitious attempt to secure his state’s border where President Biden hasn’t.
He’s committed billions of dollars of state money to the effort, including erecting miles of border wall, ordering state police and National Guard troops to the border to deter crossings and make arrests under state law, and bussing migrants out of Texas to other cities to spread the pain of accommodating the surge of people.
Source:Washington Times
