The Fifth Circuit said Tuesday Texas can maintain a floating river barrier to stem migration on the Mexico border, handing a pivotal win to Gov. Greg Abbott (R) over the Biden Administration.
The New Orleans appeals court reversed a preliminary injunction imposed by a federal trial court ordered against the 1,000-foot barrier, an order that required Texas to cease work on the barrier and move it to Texas’ riverbank.
“We hold that the district court clearly erred in finding that the United States will likely prove that the barrier is in a navigable stretch of the Rio Grande,” Judge Don R. Willett wrote. “We cannot square the district court’s findings and conclusions with over a century’s worth of precedent.”
Tuesday’s decision comes one week before the case returns to the district court for a planned trial starting Aug. 6 in Austin, Texas.
The ruling by the US Court of Appeals for the Fifth Circuit is also a reversal of an earlier ruling from a panel of Fifth Circuit judges, which affirmed the district court’s injunction initially. However, following that the appeals court decided the full court would re-hear the case en banc and halted the district court’s stay as it reviewed the case.
The opinion was accompanied by concurrences from Judges Andrew S. Oldham and Priscilla Richman.
Judge James C. Ho concurred in part and dissented in part, finding that federal courts likely lack jurisdiction in the case given that Abbott invoked the federal invasion clause in response to the immigration crisis he says Texas is facing.
“This is a threshold, direct challenge to the State’s invocation of its constitutional authority, full stop,” Ho said.
During oral arguments in May, some conservative judges suggested the barrier is lawful under a theory that Texas has a right to defend itself against an invasion of migrants. Texas has invoked the invasion clause to justify other border policies that infringe on the federal government’s sole authority to set immigration policies. Other circuit judges said the stretch of the Rio Grande river occupied by the barrier isn’t navigable and therefore Texas hasn’t violated the federal Rivers and Harbors Act.
The barriers have been allowed since January, when the full circuit court agreed to review a decision from a panel of judges that favored Biden by a 2-1 vote.
The case is U.S. v. Abbott, 5th Cir. en banc, No. 23-50632, 7/30/24.