(CNN) — The full 5th US Circuit Court of Appeals handed Texas a major win Tuesday in its ongoing legal dispute with the Biden administration over the state’s construction of a floating barrier in the Rio Grande.
In a split ruling, the very conservative appeals court wiped away a judge’s preliminary ruling – put on pause in January by the full 5th Circuit – that had directed Texas to remove the barriers.
Circuit Judge Don Willett, writing for the majority of the New Orleans-based court, said the relevant federal law likely did not apply to the stretch of the river where Texas had placed the buoys. He also concluded that the Justice Department had “offered no evidence that the barrier threatens safety,” and rejected the department’s arguments that the lower court order was necessary to alleviate diplomatic tensions with Mexico.
Seven judges signed on to dissents. Circuit Judge James Ho, known for his especially strident opinions, wrote a partial dissent that said Texas should prevail for a different reason: Its move to erect the buoys is a “strategic military decision” by the state to “repel” a foreign “invasion,” making the case a political dispute that courts lack the authority to weigh in on.
It is not clear if the Justice Department – which did not seek the Supreme Court’s intervention when the 5th Circuit allowed Texas to keep the barriers in place earlier this year – will now appeal the new ruling to the high court. Spokespeople for the department did not respond to CNN’s inquiry.
Texas Republican Gov. Greg Abbott celebrated the ruling on X with a post, saying, “Texas can KEEP these buoys in the water securing our border.”
“Biden tried to remove them. I fought to keep them in the water. That is exactly where they will stay. JUSTICE!!!!” Abbott said.
The proceedings will continue in the case as it heads to a full trial.
The Justice Department sued Texas over the barriers in July 2023 and obtained the judge’s order directing their removal in September. After a 5th Circuit panel upheld that order, the full appeals court voted to rehear the case.
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