5th Circuit avoids immigration-invasion argument in ruling for Texas in buoy barrier case

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fifth Circuit avoids immigration-invasion argument in ruling for Texas in buoy barrier case

By Debra Cassens Weiss

August 1, 2024, 12:49 pm CDT

A Texas effort to discourage unlawful immigration with floating buoys within the Rio Grande River bought a lift Tuesday, when a federal appeals courtroom permitted the state to maintain the 1,000-foot barrier in place throughout a authorized problem.

The en banc fifth U.S. Circuit Courtroom of Appeals at New Orleans rejected the U.S. Division of Justice’s studying of a statute known as the Rivers and Harbors Appropriation Act of 1899. The regulation bars obstructions in navigable waterways.

America will doubtless be unable to show that the barrier is situated in a navigable stretch on the Rio Grande, the fifth Circuit majority mentioned. Because of this, the district courtroom abused its discretion when it required Texas to maneuver the barrier to the riverbank, the appeals courtroom concluded within the July 30 opinion.

Law360 and Reuters are among the many publications with tales.

Republican Texas Legal professional Basic Ken Paxton known as the choice “a significant victory” in a July 31 press launch.

The bulk opinion by Decide Don R. Willett didn’t attain a second argument by Texas, the Volokh Conspiracy studies. The argument is that Texas can place the buoys within the river, even when federal regulation forbids it, beneath one of many invasion clauses of the Structure.

Texas claims that unlawful immigration and drug smuggling represent an “invasion” allowing its motion.

The clause is at Article I, Part 10, Clause 3 of the Structure, in response to the Volokh Conspiracy. It states that “no state shall, with out the consent of Congress, … interact in conflict, except truly invaded, or in such imminent hazard as is not going to admit of delay.”

Decide James C. Ho addressed the argument in a concurrence within the judgment and partial dissent. He maintained that courts should defer to the Texas governor on the that means of “invasion,” so long as the governor is appearing in good religion, the Volokh Conspiracy studies. Courts can’t act, Ho mentioned, due to the nonjusticiable political query.

Texas can also be making the invasion argument in a separate lawsuit difficult a state regulation authorizing cops to detain and deport immigrants.

Willett is an appointee of former President Donald Trump. His opinion was joined by eight judges, whereas two others concurred within the judgment. Seven judges dissented.

The case is United States v. Abbott.