A lawyer for the state of Texas on Thursday told a U.S. appeals court President Joe Biden’s administration has no power to force the state to remove a 1,000-foot (305-meter) barrier placed in the Rio Grande river to deter illegal border crossings.
Three judges on the New Orleans-based 5th U.S. Circuit Court of Appeals heard oral arguments in the state’s appeal of a lower court judge’s ruling requiring the string of buoys installed in July be moved to an embankment on the Texas side of the river, which forms a border between the U.S. and Mexico.
The judge had said concrete anchors weighing up to 3,000 pounds (1,361 kg) used to secure the buoys could damage boats and other vessels. The 5th Circuit last month allowed the barrier to remain in place pending the outcome of the appeal.
The Biden administration has faced repeated criticisms from Texas and other Republican-led states over its immigration and border policies. The administration on Thursday said it will add sections to a border wall to stave off record migrant crossings from Mexico, a reversal that embraces a signature policy of Republican former President Donald Trump.
At Thursday’s arguments, Lanora Pettit, a lawyer for the state, told the 5th Circuit panel that the portion of the Rio Grande where the barrier was placed is not navigable, so federal law does not bar Texas from installing the barrier.
The river is as low as 18 inches deep in that area, and there is little history of commercial use of the waterway, she said.
Pettit also said that a structure placed in a river must be permanent to qualify as an unlawful obstruction under U.S. law. The buoys are not permanent because they can be removed at any time, she said.
Michael Gray, a lawyer with the U.S. Department of Justice countered that small federal government watercraft, kayaks and ferries all operate in the area. He pointed to cases in which house boats and a schooner were found to be obstructions.
“Certainly if … a house boat is an obstruction, then a 1,000-foot long series of interlocking buoys connected with concrete anchors to the riverbed is also an obstruction,” Gray said.
The three 5th Circuit judges said little during the 30-minute hearing.
Texas authorities began installing the barrier in the middle of the river near Eagle Pass, Texas, in July, as part of Republican Governor Greg Abbott’s initiative dubbed Operation Lone Star to deter migrants.
The Biden administration sued Texas after the barrier was installed, saying it would disrupt navigation and that the state should have sought permission from the U.S. Army Corps of Engineers.
Abbott has said the buoys could prevent hundreds of thousands of people from entering the country illegally. But many migrants have remained undeterred, and nine people died last month while trying to cross the Rio Grande near Eagle Pass.