Texas Judge Hands Biden Partial Win in Challenge to Buoy Barrier

A Texas federal trial court judge kept alive a legal challenge to Texas’s use of floating barriers to stem immigration, handing the Biden Administration a partial win in a battle at the Mexican border that’s far from over.

Senior U.S. District Judge David Ezra rejected Texas’s bid to completely dismiss the case Friday, saying the state can’t show the barriers placed in the Rio Grande are permitted by the federal Rivers and Harbor Act.

However, Ezra sided with Texas in tossing a second claim from the federal government involving the 175-year-old Treaty of Guadalupe Hidalgo.

Ezra’s decision moves the parties closer to an Aug. 6 bench trial in his Austin court. But first, the US Court of Appeals for the Fifth Circuit will review an injunction he issued last year. That hearing, to be held before the entire circuit court, is set for May 15.

Texas’s 1,000-foot barrier is part of a broader challenge to the federal government’s sole authority to set immigration policy. Gov. Greg Abbott (R) says Texas must implement its own solutions to overcome lax border enforcement by the Biden Administration.

In Ezra’s court last month, Texas argued the barriers are allowed under the Rivers and Harbor Act. The act, the lawyers said, can be enforced only against a person or a corporation, not a state or its officials.

In rejecting that argument, Ezra wrote, “Contrary to Texas’s position, the Supreme Court has historically read the RHA to allow civil suits against states.” He added, Texas’s interpretation of the act would “make it unenforceable against those most likely to construct the structures.”

Later in the March hearing, Ezra took great interest in Texas’s analysis of the Hidalgo Treaty. Lawyers had argued that the treaty requires disputes with Mexico about the Rio Grande river to be resolved through peaceful negotiations, not litigation. Ezra said then that he wanted to learn more, ordering lawyers to provide supplemental briefing.

In Friday’s opinion, he said that after reviewing legislative history he found the treaty can’t be enforced by law.

“The federal government has consistently treated the treaty as non-self-executing, only now attempting to argue self-execution,” he wrote.

In September, Ezra issued an injunction against the use of the buoys, saying they disrupt navigability and that Texas needed the federal government’s permission. The injunction was affirmed by a panel on the Fifth Circuit. But the barriers were allowed to return in January when the full appeals court decided to it would hear the case in May.

The case is U.S. v. Abbott, W.D. Tex., No. 1:23-cv-00853, opinion 4/26/24.