Judge panel hears arguments on Texas’ floating border wall

Judges hear arguments on Texas’ floating border wall

Two of the three judges hearing arguments on the 1,000-foot floating barrier Texas installed in the Rio Grande in June to block migrants voiced skepticism at the state’s assertion it needed no federal permission because the buoys are only temporary.

There is another border control controversy, as the floating barrier installed by Texas Governor Greg Abbott went before a panel of judges Thursday.

The barrier was allowed to remain in place, pending a court review.

Attorneys with the state and the Biden Administration made their arguments, with Thursday’s hearing lasting about 30 minutes.

It is another test of state versus federal power over border control, with the 5th Circuit Court of Appeals in New Orleans taking up the case of Gov. Abbott's floating barrier.

An attorney for the Department of Justice argued Texas violated the Rivers and Harbors Act of 1899 in two ways.

"First, Texas obstructed the river's navigable capacity without congressional authorization," Michael Gray said. "Second, they built a boon or other structure in the river without a permit from the Army Corps of Engineers."

An attorney for the state argued that the 1899 law only applies to navigable rivers. That stretch of the Rio Grande is no more than four feet deep.

"The undisputed testimony is these buoys are temporary, they're designed to be tactical and moved," Lanora Pettit said.

David Coale is a constitutional law attorney who listened to the 30-minute hearing.

"I thought the state was very measured in its attack on the district judge's ruling," he said.

Last month, a federal judge in Austin ordered Texas to remove the barrier by September 15, rejecting Gov. Abbott’s contention that an "invasion" by migrants and drug cartels gives the state broad constitutional authority to defend itself.

A stay was issued as the case was appealed to the 5th Circuit.

"You didn't hear any of the more flamboyant stuff in their written submission about Texas’ right to defend itself and declared invasion and all that," Coale said. "All you heard today from the state of Texas lawyer was a very focused attack on very technical elements of the federal statute, giving Congress the authority over waterways in the United States."

Coale believes that's because of the makeup of the panel.

Judge Carolyn Dineen King was named to the bench by Democratic President Jimmy Carter.

Judge Dana Douglas is a Biden appointee.

The third judge on the panel assigned to the appeal, Judge Don Willett, participated remotely and did not pose any questions during the oral argument.

"And of the three judges on this panel, he's the one likely to be the most receptive to Texas's position. But we don't know where he stands on it," Coale explained.

There's no telling when the panel could issue its ruling.

Coale said there's a chance the entire 5th Circuit could decide to take up the case should the panel rule in favor of the federal government.

The court has a majority of conservative justices.