Texas’ floating barrier between US, Mexico can stay for now, court rules in reversal
A federal court has reversed an order that required Texas to remove floating barriers from the Rio Grande.
It means the barricades to deter illegal immigration can remain in place at least until a hearing is expected in May.
The defeat for the Biden Administration comes as President Joe Biden invited congressional leaders to the White House to discover a path forward on the border.
There’s still no agreement in Congress to tackle the border crisis, but some Senate leaders are hopeful for action as soon as next week.
One of Texas’ tools to combat the border crisis can remain in place for now.
Will the floating barrier in the Rio Grande stay or will it go?
That is the question now before the entire 5th Circuit Court of Appeals in New Orleans after a surprise move Wednesday.
"There's been a lot of back and forth about this after Texas placed the set of buoys in the Rio Grande to deter people from crossing," said David Coale, who is a constitutional law attorney who has been watching this case closely.
This past June, the state of Texas spent $1 million to deploy a string of buoys in the Rio Grande to deter migrants from illegally crossing near Eagle Pass.
The federal government sued to have them removed and won in court, initially.
"A federal trial judge told them to remove it. And after some skirmishing about emergency stays, a panel, three judges, which is how the 5th Circuit does most of its business. A 5th Circuit panel held a few months ago that the federal government side was correct, and the state needed to remove the barrier of the buoys," Coale said.
Texas must remove floating barrier in Rio Grande, court rules
The Fifth Circuit Court of Appeals sided with a lower court in saying Texas must remove the floating border barrier in the Rio Grande. The fight is likely to continue to the Supreme Court.
While a three-judge panel had sided with the Biden Administration in December, Wednesday’s decision means each of the circuit’s 17 judges will now take a look in May.
"It seems that a majority of the court may or may not think the panel is wrong, but they certainly have some serious questions about how the panel got there on this question of federal versus state authority of the border, and they want to thoroughly air it out," Coale said. "So it's going to get a lot of scrutiny in May when this goes before the full 5th Circuit."
A somewhat rare legal process referred to as "en banc," which is French for "on the bench."
"So it showed an interesting difference of opinion. The panel, by just luck of the draw, happened to have two judges appointed by Democratic presidents and another judge recently appointed by President Trump on the 5th Circuit. The makeup is considerably more conservative," Coale explained.
Coale said it will take some time for all of the justices to coordinate their schedules.
For now, the series of linked, concrete-anchored buoys that stretches roughly the length of three soccer fields will remain in place.
"They pick out a handful of cases every year for review by the full court. And this one made the cut," Coale said.
Coale expects the 5th Circuit to hear the case in May.
Depending on the outcome of that hearing, Coale wouldn’t be surprised if this case ultimately ends up before the U.S. Supreme Court.
MORE: Border Security News Coverage
While legal wrangling continues over border strategy, top congressional leaders gathered at the White House for a meeting with President Biden on the border.
Lawmakers have been trying to hash out a deal that would provide aid to Ukraine in exchange for policy changes on border security.
"I put the chances a little greater than half now, and that’s the first time I can say that," Senate Majority Leader Chuck Schumer said.
Republican leadership did not strike as optimistic of a note.
"We understand there’s concern about the safety, security, and sovereignty of Ukraine, but the American people have those same concerns about our own domestic safety, sovereignty, and security," House Speaker Mike Johnson said.
But amid recent comments from Johnson, expressing skepticism about a broader immigration deal, Senate Republicans reiterated Wednesday the need to act now.
"To my Republican colleagues, this is a historic moment to reform the border in a way that would give tools to the president they don’t have today and lessen the flow to take pressure of people in Texas and Arizona," Sen. Lindsey Graham said.
Both Senator Mitch McConnell and Sen. Schumer said they are hopeful for a vote on border security and Ukraine as soon as next week, but even if that happens, there are still major questions about support in the republican-led house.