Rio Grande buoy decision threatens Abbott’s border policy

Fears of an “invasion” don’t justify Texas’s usurpation of federal authority on border enforcement, a federal judge ruled Wednesday.

Judge David Ezra of the Western District of Texas concluded that the state must move rows of floating barriers in the Rio Grande — whether or not it thinks an “invasion” is underway. 

The legal decision represents a significant defeat to the major legal and rhetorical justification that Texas state officials including Gov. Greg Abbott (R) have used to cross into border enforcement, a territory traditionally occupied by the federal government.

Abbott issued a statement Wednesday lambasting the decision and doubling down on Operation Lone Star, the state’s migrant deterrence policy.

“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. Our battle to defend Texas’ sovereign authority to protect lives from the chaos caused by President Biden’s open border policies has only begun. Texas is prepared to take this fight all the way to the U.S. Supreme Court,” said Abbott.

For years, the governor has pushed state agencies to “fight against the invasion at our border,” as he instructed the head of the Texas state police in 2022. 

That’s a power that Texas conservatives have argued is guaranteed under the Constitution — in particular Article I, Section 10, which bars states from military action “unless actually invaded, or in such imminent Danger as will not admit of delay.”

Under Operation Lone Star, the Texas government has used this as the justification to move soldiers to the border; arrest and jail migrants for trespassing, as most illicit border crossings are not a crime under federal law; and repel people from crossing.

These actions are all land grabs of long-established federal prerogatives, Denise Gilman of the University of Texas Law School told The Hill. 

“The floating barrier is just a little piece of a larger operation by the state of Texas to get involved in immigration enforcement in ways that are deeply problematic and almost certainly unlawful,” Gilman said. 

The state Republican party has based its case on a dark vision that conflates migration with the activities of drug cartels — which Texas often implies are identical to the Mexican state.

Ezra, the judge in the case, did not contest whether Texas was under invasion by foreign forces. Instead, he argued that it wasn’t up to the state to make that call.

“Whether Texas’s claim of ‘invasion’ is legitimate is a non-justiciable political question demonstrably committed to the federal political branches,” he said.

Translation: It’s up to the president and Congress to decide if the state is under invasion at all.

Still, Ezra’s injunction is already spurring advocates into further legal action.

“We initiated the complaint against the buoys with the U.S. Department of Justice, and the U.S. Attorney filed a lawsuit. We’re looking forward to dismantling the remainder of this bogus wall wasting Texas taxpayer dollars for political stunts that have done zero to stop immigration into the United States,” said Domingo García, national president of the League of United Latin American Citizens (LULAC).

“Operation Lone Star is a colossal failure — politically, on a humanitarian basis and just on a moral basis.”

Though the language of the injunction is deliberately narrow, it opened larger questions, particularly regarding border crossings, according to Robert Barsky, a professor of law at Vanderbilt University who researches the intersection of humanities and law.

“What the judge is doing is what judges do. Which is, as narrowly as possible, stick to the statute, stick to the law, stick to the Constitution, so that it doesn’t get shot down on appeal,” Barsky said.

He added that the decision should be seen “as a proxy for broader questions: for example, what are our obligations to vulnerable migrants?”

Barsky noted that any actions to deter people from entering the country to seek asylum — whether their case stands up or not — violate U.S. treaty obligations.

“The ruling makes strong reference to state interdiction on federal ground. But I think there’s really a much broader question here of why it is that we are part of the international refugee law regime, and what kind of statement the governor is making about human life when he jeopardizes it so dramatically with the razor wire and with these barriers,” Barsky said.

Ezra’s terse approach to the broader question of invasion rhetoric reaffirmed the Supreme Court’s 2012 conclusion in Arizona v. United States, which says that “immigration, enforcement immigration actions are all within the federal government’s purview,” Gilman said.

In that case, the Obama administration had sued Arizona for laws allowing deputies to check the immigration status of detainees — a right that the court ruled stepped on federal authority. 

Though the Supreme Court had a 5-4 conservative majority at the time, Chief Justice John Roberts and then-Justice Anthony Kennedy — who wrote the majority decision — sided with three of the court’s liberals to find against Arizona.

But the Abbott camp finds support in then-Justice Antonin Scalia’s dissent in that decision, in which he argued that the Constitution doesn’t deny states “the power to exclude from the sovereign’s territory people who have no right to be there.”

Texas is asserting the state’s right described by Scalia, said Carine Martinez of the right-wing Texas Public Policy Foundation (TPPF).

“The state can defend itself in the case of a sudden or imminent invasion,” Martinez, herself an immigrant from France, told The Hill. 

She argued that the buoys — which include sharp anti-personnel disks similar to circular saw blades — are necessary to both “protect the state and also to protect migrants from drug dealers.” 

She also cast the need to close off the river as a safety measure to deter people from dangerous crossings. Migrants “were drowning, because they were trying to cross the river,” she said. “It’s very, very dangerous.”

But civil rights advocates say the opposite is true.

“Our concern with those buoys and even the razor wire is the loss of life. Crossing the border illegally is really a civil misdemeanor offense,” said Lydia Guzman, national immigration committee chair at LULAC.

“And when it comes down to it, that shouldn’t be punishable by death.”

The state isn’t just moving into federal territory, Gilman argued: It’s changing the idea of immigration enforcement from a civil one to a highly punitive one.

“It’s a question of how do you manage sort of a situation with higher numbers at the border — and they’re conveying an image that this is all criminal threatening behavior,” she said.

“And then they’re taking approaches that are discriminatory and punitive and lacking in due process to respond,” she added. 

Other activists argued that the invasion rhetoric employed by the right was dangerous in its own right.

Guzman pointed to the 2019 El Paso Walmart shooting, where a gunman who expressed anti-Mexican xenophobic and racist motivation killed 23 people and injured 22 others.

“That’s the type of consequences that this extreme rhetoric will do” she said. “And when you have crazy folks like that acting, and now you have a governor who should be acting responsibly.”

Instead, she said, “he’s doing this.”