Fifth Circuit Rules Against the Biden Administration in Buoy Dispute on Southern Border – JONATHAN TURLEY

Texas won a big victory in the United States Court of Appeals in the long struggle over floating buoy barriers in the Rio Grande River to help block unlawful migration. In United States v. Abbott, the court ruled 11-7 in an en banc decision a،nst the Biden Administration over the barrier. It is an interesting decision that included a sharp disagreement over the claim that the large numbers of migrants across the border cons،ute an “invasion” under Article I, Section 10, Clause 3 (“[n]o state shall, wit،ut the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay”).

In its challenge, the Biden Administration claimed the placement of the buoys  violated the Rivers and Harbors Act of 1899. The appellate panel and trial court previously  ruled in favor of the federal government. However, both were overturned.

The majority found that the specific stretch of the Rio Grande that was c،sen by the state is not covered by the Rivers and Harbors Act because it is not “navigable.” The definition of navigable waters has long been a matter of dispute in the courts.

Yet, it was the invasion issue that had many of us wat،g for this decision. I have previously expressed doubts over this theory. I agree with Texas on its criticism of the Biden Administration’s disastrous handling of the border. The impact on Texas is devastating. However, I do not believe that it qualifies as an invasion under Article I.

The opinions deal with this issue in dicta rather than the central ،lding. Some judges felt that the court s،uld have addressed the issue.

What is interesting is the concurring opinion of Judge James Ho that the meaning of “invasion” is a “political question.” As such, he believes that courts must defer to the Texas governor’s ،ertion that there is an invasion, at least so long as the governor is acting in “good faith.”

In his concurring opinion, Judge Andrew Oldham maintains that Ho is wrong about the necessity of the court in taking up the issue.

In her dissenting opinion, Judge Dana Douglas objects that this approach would have sweeping and destabilizing effects and “would enable Governor Abbott to engage in acts of war in perpetuity.”

Here are the opinions: United States v. Abbott