Texas and the U.S. Department of Justice have filed closing arguments in the preliminary injunction hearing over the buoys placed in the Rio Grande to deter unlawful migration.
As reported by The Dallas Express, the DOJ under President Joe Biden sued Texas Gov. Greg Abbott for deploying the buoys, alleging that it violates the Rivers and Harbors Act. Abbott and other Texas leaders stood by the buoys, claiming the state has the sovereignty to defend its borders.
However, a federal court will soon make a ruling on the DOJ’s motion to secure a preliminary injunction against Texas, potentially forcing the removal of the buoys while the litigation continues. Abbott has promised to take the case all the way to the Supreme Court.
In the closing argument, the federal government claimed that allowing the buoys to remain in the river would cause “irreparable harm to the United States.”
The federal statute in question requires states to request federal authorization before obstructing a navigable waterway, however, the U.S. government claims Texas never did.
In response to a claim by Texas that the state was being invaded, the federal government rejected the premise entirely.
“Even if Texas has been ‘actually invaded,’ … the Constitution does not give Texas carte blanche to ‘take certain measures’ that it unilaterally chooses,” the government argued. “Given the novelty of Texas’s argument — and the extraordinary implications of its claim of sole discretion to declare an actual invasion and unilaterally, and indefinitely, engage in conduct unbound by federal statutes — Texas is decidedly unlikely to succeed in its defense.”
For his part, Gov. Abbott highlighted the state of the crisis at the southern border and the negative impact unlawful migration and drug cartel activity has had upon Texans.
“The United States seeks a preliminary injunction forcing the State to allow untold numbers of cartel members to ford the Rio Grande onto Texas soil,” Abbott’s legal team stated in a brief of its closing argument.
In order to secure an injunction, the United States must show it is “likely to suffer irreparable harm.” The brief claims that the United States “falls far short of this high bar.”
“No evidence shows this stretch of the Rio Grande is navigable; no evidence shows the buoys ‘obstruct’ any navigable capacity of the river; and no evidence shows the buoys are ‘booms’ or ‘other structures’ covered by Section 10 of the Rivers and Harbors Act,” the brief continues. “And even if there were such evidence, Texas has clear constitutional authority to defend its territory against the invasion that Governor Abbott has declared.”
“The Court should thus deny the preliminary injunction sought by the US,” the brief concludes. “At most, only a more limited, prohibitory injunction would be proper — forbidding Texas from deploying additional buoys but allowing the buoys already deployed to remain in the river.”
Texas further suggested that the River and Harbors Act does not even apply to the stretch of the Rio Grande in question because it is “non-navigable” and not used for commercial shipping.
“The law and the facts show that the disputed segment is non-navigable,” the brief reads. “Congress’s authority to pass the Act rests on the Commerce Clause, so covered waters must be ‘of practical service as a highway of commerce.’”
The federal government’s own expert witness allegedly acknowledged that the section of the river is not used for commerce during the hearing.
“The US called only one navigability witness, who repeatedly testified he had never seen commercial navigation in this stretch of river,” the brief reads.
Depending on the federal court’s decision, Texas might be ordered to remove the buoys. If the judge sides with Texas, then the buoys will remain while the case proceeds.
