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Appeals court lets Texas leave floating barrier in Rio Grande for now


A federal appeals court Thursday put on hold a judge’s order from earlier this week requiring Texas Gov. Greg Abbott to remove a floating barrier from the middle of the Rio Grande River.

In its order, the U.S. Court of Appeals for the 5th Circuit allowed Abbott, a Republican, to leave in place for now the 1,000 foot barrier that his state installed to deter illegal migrant crossings. The order was issued by a three-judge panel consisting of two Democratic appointees and one Republican appointee.

A day earlier, U.S. District Judge David Ezra had ordered the barrier to be moved out of the main waterway to the bank of the Rio Grande on the Texas side by Sept. 15, granting the Justice Department’s request for a preliminary injunction while the case is litigated.

Spokespeople for the Justice Department and Abbott’s office did not immediately respond to requests for comment Thursday night.

Lawyers for Texas have characterized illegal crossings at the southern border as an invasion that the state has a right to defend against.

“The buoys were deployed under the Governor’s constitutional authority to defend Texas from transnational-criminal-cartel invasion,” they wrote in a motion Thursday. “Moving the buoys exacerbates dangers to migrants enticed to cross the border unlawfully, and to Texans harmed by human trafficking, drug smuggling, and unchecked cartel violence.”

The Justice Department argued in its filing that temporarily blocking the lower court’s ruling would delay “preparatory work,” and threaten “Texas’s ability to comply with the repositioning deadline prescribed by the district court.”

The appeals court action is the latest in an ongoing battle between the Biden administration and the Texas governor over the floating barrier near Eagle Pass. After Wednesday’s ruling, Abbott struck a defiant tone and vowed that Texas was prepared to take the fight “all the way to the U.S. Supreme Court.”

Justice Department attorneys initiated the court battle in July with a civil suit that said Texas had violated the Rivers and Harbors Appropriation Act, an 1899 law that deems the unauthorized obstruction of the nation’s navigable waters “unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army.”

Texas countered that the U.S. Army Corps of Engineers lacks jurisdiction over a “non-navigable river stretch,” in Maverick County, where the barrier is located.

Joanna Swanson

Joanna Swanson is Europe correspondent at the Thomson Reuters Foundation based in Brussels covering politics, culture, business, climate change, society, economies and inclusive tech. With specific focus in breaking news, she has covered some of the world's most significant stories.