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Federal appeals court allows Texas to leave floating barrier in Rio Grande for now

Texas installed the 1,000-foot barrier this year to deter illegal migrant crossings.
A worker inspects buoys being used as a barrier along the Rio Grande, Monday, Aug. 21, 2023, in Eagle Pass, Texas.
A worker inspects buoys being used as a barrier along the Rio Grande in Eagle Pass, Texas, on Aug. 21.Eric Gay / AP file

A federal appeals court Thursday put on hold a judge's order from earlier this week requiring Texas Gov. Greg Abbott to remove a floating barrier from the middle of the Rio Grande.

The 5th Circuit U.S. Court of Appeals allowed Abbott, a Republican, to leave in place for now the 1,000-foot barrier the state installed to deter illegal migrant crossings. The order was issued by a three-judge panel of two Democratic appointees and a Republican appointee.

Wednesday, U.S. District Judge David Ezra had ordered that the barrier moved out of the main waterway to the bank of the Rio Grande on the Texas side by Sept. 15, granting the Justice Department's request for a preliminary injunction while the case is litigated.

The Justice Department declined to comment. A spokesperson for Abbott's office did not immediately respond to a request for comment Thursday night.

Lawyers for Texas have characterized illegal crossings at the southern border as an invasion that the state has a right to defend against.

"The buoys were deployed under the Governor’s constitutional authority to defend Texas from transnational-criminal-cartel invasion," they wrote in a motion Thursday. "Moving the buoys exacerbates dangers to migrants enticed to cross the border unlawfully, and to Texans harmed by human trafficking, drug smuggling, and unchecked cartel violence."

The Justice Department argued in its filing that temporarily blocking the lower court's ruling would delay "preparatory work" and threaten "Texas’s ability to comply with the repositioning deadline prescribed by the district court."

The appeals court action is the latest in a battle between Abbott and the Biden administration over the floating barrier near Eagle Pass. After Wednesday's ruling, Abbott struck a defiant tone and vowed that Texas was prepared to take the fight "all the way to the U.S. Supreme Court.”

Justice Department attorneys initiated the court battle in July with a civil suit that said Texas had violated the Rivers and Harbors Appropriation Act, an 1899 law that deems the unauthorized obstruction of the country’s navigable waters “unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army.”

Texas countered that the Army Corps of Engineers lacks jurisdiction over a "non-navigable river stretch" in Maverick County, where the barrier is located.