An appellate court added another twist in the ongoing legal battle over buoys placed in the Rio Grande river as a deterrent to illegal immigration. Earlier this week a federal court judge ordered Texas to move the buoys to the riverbank, but the 5th Circuit Court of Appeals stayed that order roughly 24 hours after it was issued.
“What that mean is, we’re going to pause this temporarily to allow all the parties to submit briefs and other filings,” said Josh Blackman, constitutional law professor at the South Texas College of Law. “This is just basically a temporary, administrative stay that might last maybe a week or two until the panel can decide whether to grant a stay for a longer duration.”
Texas placed nearly 1,000 feet of buoys in the Rio Grande near Eagle Pass earlier this summer. The federal government almost immediately sued, claiming Texas violated the Rivers and Harbors Act. This law requires a permit from the US Army Corps of Engineers before any structures or obstructions are built on a navigable waterway.
Texas claimed it didn’t need permission because the water is too shallow in this part of the Rio Grande for it to be considered a navigable waterway. The state also argued it has the constitutional right to place the buoys in the river to deter what Gov. Greg Abbott said amounts to an invasion.
“The United States and Texas have been at odds over immigration for years and then it sort of bubbles over. The argument about the invasion clause depends on sort of an urgent need and the federal government hasn’t been able to provide relief yet, whereas here this has been going on for years, so I don’t think that argument quite works,” said Blackman.
On Wednesday, Judge David Ezra granted the government’s motion for a temporary injunction and ordered Texas to move the buoys to the riverbank by Sept. 15. Texas appealed the ruling and by Thursday evening a stay of Ezra’s order was granted.
It is not know when the 5th Circuit will make a decision on this point.
