Texas ‘Absolutely’ Willing to Take Border Barrier Legal Fight to US Supreme Court: Abbott

The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court in Washington on Sept. 28, 2020. Al Drago/Getty Images

Texas Gov. Greg Abbott said that he is planning to take his legal fight involving a border barrier in the Rio Grande to the U.S. Supreme Court, coming after a 5th U.S. Circuit Court of Appeals ruling last week.

“We will be seeking what’s called an unbuffed ruling by the entire district court of appeals,” the Republican governor said during Fox News’s “Sunday Morning Futures” program with Maria Bartiromo. “And if we lose there, we will take that to the United States Supreme Court because we know Texas has the right to legally deploy those buoys in the water to prevent people from entering our country and our state illegally.”

A lower court had ordered the removal of the 1,000-foot-long buoy barrier that the Abbott administration placed in the border river in July. The court argued that they couldn’t be deployed because the Rio Grande is considered a navigable waterway, although that was disputed Sunday by Mr. Abbott.

When asked whether he would take the case to the Supreme Court, the Texas governor said, “Absolutely.” He also said his state would keep the border barrier intact.

For months, Texas has asserted that parts of the Rio Grande are not subject to federal laws protecting navigable waters. But judges at the 5th U.S. Court of Appeals said the lower court correctly sided with the Biden administration.

“It considered the threat to navigation and federal government operations on the Rio Grande, as well as the potential threat to human life the floating barrier created,” Judge Dana Douglas wrote in the opinion.

The Biden administration sued Mr. Abbott’s administration over the linked and anchored buoys—which stretch roughly the length of three soccer fields—after the state installed the barrier along the international border with Mexico. The buoys are between the Texas border city of Eagle Pass and Piedras Negras, Coahuila.

Thousands of people were crossing into the United States illegally through the area when the barrier was installed. The lower district court ordered the state to move the barriers in September, but Texas’s appeal temporarily delayed that order from taking effect.

Court Rulings

The Biden administration sued under what is known as the the Rivers and Harbors Act, a law that protects navigable waters. In a statement Friday, the U.S. Department of Homeland Security said it welcomed the ruling, adding that enforcing immigration law is a federal responsibility and that consequences are applied to those who cross the border without authorization.

In a dissent, Judge Don Willet, an appointee of former President Donald Trump and a former Texas Supreme Court justice, said the order to move the barriers won’t dissolve any tensions that the Biden administration said have been ramping up between the U.S. and Mexico governments.

The buoys were installed under Mr. Abbott’s Operation Lone Star, which the governor said was needed to deal with inaction at the U.S.–Mexico border amid surging numbers of illegal immigrants in recent years.

Nearly 400,000 people tried to enter the United States through the section of the southwest border that includes Eagle Pass last fiscal year, officials have said.

“Governor Abbott announced that he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier,” District Judge David Alan Ezra wrote two months before the Fifth Circuit’s ruling.

He added: “Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.”

Texas Gov. Greg Abbott, in Tuscaloosa, Ala., on Sept. 9, 2023. Vasha Hunt/AP Photo

After the court’s ruling, Mr. Abbott wrote on social media that both he and Texas Attorney General Ken Paxton “will seek an immediate rehearing,“ adding, ”We’ll go to [the Supreme Court] if needed to protect Texas from Biden’s open borders.”

Border Closure

The governor’s comment comes as U.S. Customs and Border Protection announced on Dec. 1 that they will close the port of entry in Lukeville, Arizona, so that the operations officials who watch over vehicle and pedestrian traffic going both ways can help Border Patrol agents arrest and process the new arrivals.

The agency, in a statement, said it is now “surging all available resources to expeditiously and safely process migrants,” and it will “continue to prioritize our border security mission as necessary in response to this evolving situation.”

Border security and illegal immigration has been a focus for Republican lawmakers and candidates as well as President Trump, who is seeking reelection in 2024. GOP lawmakers have said that it’s because of the Biden administration’s lax border policies that illegal immigration has increased.

If elected, President Trump would deport a significant number of illegal aliens, he and his former advisors have said in recent interviews. “Under my leadership, we had the most secure border in U.S. history. Now, we have the worst border in the history of the world,” the former president said in September.

“Following the Eisenhower Model, we will carry out the largest domestic deportation operation in American history,” he added in a speech in Iowa.

The Associated Press contributed to this report.