Texas sued by feds after refusing to remove buoys from the Rio Grande

The Department of Justice sued the state of Texas on Monday over its refusal to remove buoys from the Rio Grande. The state placed the buoys in the river near Eagle Pass several weeks ago, as part of Operation Lone Star, Texas’ multi-billion-dollar border security mission.

The DOJ warned it would take Texas to court last week if the buoys weren’t removed, stating that they illegally block a navigable waterway and violate treaties with Mexico.

Gov. Greg Abbott refused to comply with the orders. In a letter shared on Twitter Monday, Abbott doubled down on the state’s right to defend its borders. “Texas will see you in court, Mr. President,” wrote the governor.

Todd Gillman, Washington Bureau Chief for the Dallas Morning News, spoke to the Texas Standard about the lawsuit. Listen to the interview above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: So when were these buoys first placed in the river and what is their purpose, according to the state of Texas? 

Todd Gillman The buoys have been in the river for a few weeks now. They’re anchored to the riverbed. And the purpose is to deter illegal border crossing at that part of the river. 

Just to be clear, last week we heard reports about migrants who’d been injured by razor wire and pushed back into the river from the American bank by state troopers. Does this lawsuit address those claims? 

Not directly.

The federal government’s contention right now is based entirely on something called the “Rivers and Harbors Act,” which Gov. Abbott calls an “obscure law.” That doesn’t mean it’s not a law, it just means it’s not something that comes into play all that often.

Under that law, you can’t put any kind of obstruction or build anything in a navigable waterway of the United States without permission of the U.S. Army Corps of Engineers. There are other laws that probably apply, including a couple of treaty obligations between the United States and Mexico. But the Justice Department didn’t directly cite any alleged violation of international law.

Well, as it pertains to the buoys, how does the state of Texas justify their existence?

Well, Gov. Abbott, like a lot of conservatives and Republicans around the country, contends that the federal government has not been doing a sufficient job at keeping out illegal immigration and securing the border and everything that goes with it. And in particular, since Joe Biden became president, they contend that the federal government has fallen down on the job.

When Biden became president, of course, he halted construction of the border wall that Donald Trump had begun. He froze a number of other policies that Trump had implemented. And most recently, a few months ago, the Biden administration lifted Title 42, which was the Public Health Emergency Authority used to keep asylum seekers from getting into the United States. Presumptively it is their right under American law to come and present their asylum claims on American soil.

So the justification for the police and for the razor wire is that Texas needs to fill a vacuum that is being left by lax enforcement, bad policies and a purported welcome mat to migrants that the Biden administration has put out. 

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Well, as you write, Gov. Abbott has openly boasted about not seeking permission to install these barriers in the river. Has he given any indication that he may be willing to defy a judicial order if things in court don’t go his way? 

Well that is an interesting question.

He has not directly said that, but he has said he’ll take this all the way to the Supreme Court. I would infer that he means that he would defer to the judgment of the Supreme Court. Although, he probably also thinks that with a 6-3 conservative Supreme Court, he’s probably got a pretty good shot at winning this case.

On the other hand, the law is the law. There are, in fact, requirements that before you put anything into a river that you need to get permission from the federal government through the Army Corps of Engineers. And the state of Texas did not even attempt to do that.

I’m no legal expert or expert on international law, but it wouldn’t be surprising if at some point in this litigation in federal court that the Justice Department does invoke the treaties with Mexico. The Justice Department has already stated as part of this complaint that what the state of Texas is doing has foreign policy implications. It has definitely caused friction with the government of Mexico, which says, “hey, that’s our river, too, and you can’t just put stuff in it.”

So there are a lot of legal tentacles to this and a lot of points of legal vulnerability for the state.

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