Texas’ Latest Attack on the Biden Administration Is Coming Undone by a Technicality

Texas Gov. Greg Abbott craved a showdown with President Joe Biden over illegal immigration. He wanted a test case that would give the Supreme Court a chance to expand states’ authority to repel, persecute, and brutalize unauthorized immigrants. He wanted nothing short of a constitutional revolution that would shift jurisdiction over the southern border—and perhaps even the power to wage war—from the federal government to the state of Texas. What he got, instead, was a dispute over the Rivers and Harbors Appropriation Act of 1899. Abbott’s scheme to seize control over immigration enforcement crashed against that law on Monday, when Biden’s Department of Justice filed a lawsuit against Texas. At Abbott’s direction, state officials constructed a 1,000-foot barrier in the Rio Grande designed to block migrants from crossing the river. The governor justified the project in a letter to Biden by asserting Texas’ alleged prerogative to defend itself against “invasion,” teeing up a constitutional confrontation. But he and his lawyers appear to have overlooked a more mundane problem with this plan: Federal law prohibits any state from obstructing a navigable waterway like the Rio Grande without a permit from the Army Corps of Engineers. Abbott’s brawl over the border is fizzling into a dispute for permitting—one that the governor will lose. Related From Slate MARK JOSEPH STERN The Supreme Court Has a Clear Intellectual Lightweight READ MORE The Rio Grande barrier is made up of large buoys that would force migrants crossing the river to turn back. It was constructed near the spot where four migrants, including an infant, recently drowned. The initiative is part of Operation Lone Star, Abbott’s $9.5 billion crackdown on migrants, which commandeers state troops and National Guardsmen to police the southern border. So far, Operation Lone Star has been a costly and lethal failure: It has had no evident impact on unlawful border crossings, and many Texas Guardsmen—who receive none of the benefits awarded to federal agents—have nothing to do; suicide and criminal conduct are rising in their ranks. Earlier this month, a whistleblower reported that Guardsmen were instructed to push migrants back into the Rio Grande, where they risked drowning; deprive them of water; and line the river with razor wire. After a 4-year-old got caught in the razor wire and suffered heat exhaustion, Guardsmen allegedly received an order to push her back. Many other migrants were trapped and lacerated by the razor wire, including a 19-year-old pregnant woman, who allegedly suffered a miscarriage while trying to extricate herself. ADVERTISEMENT The inefficacy of Operation Lone Star may not matter much to Abbott, who created the program as a political stunt to challenge the Biden’s administration’s ostensibly lax border enforcement. From the start, he has sought out conflict with the president over his state’s power to perform duties that Congress has assigned to Customs and Border Protection. In a November letter to Biden, the governor invoked two provisions of the U.S. Constitution that, he claimed, gave him authority to marshal Texas’ resources against unauthorized immigration. First, he asserted that Biden had failed to “honor” the so-called invasion clause, which says that the federal government “shall protect each [state] against Invasion.” Second, he wrote that he would invoke his power under Article 1, Section 10, which says, “No State shall, without the consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Biden’s purported refusal to enforce immigration law, he reasoned, had placed Texas in “imminent danger,” giving the governor power to “engage in war.” (A war against Mexico? Cartels? Migrants themselves? Abbott did not clarify.) This theory is pretty radical, to put it lightly: It would let individual states wage war over the express objection of the federal government—including the commander in chief—based on their subjective sense that migrants are “invading” them. That approach conflicts directly with the actual text of the Constitution, as the Supreme Court affirmed in 2022. The Constitution divests war powers from the states, vesting them instead in Congress (which may “provide for the common defense,” “declare war,” “raise and support” the armed forces, and more) as well as the president (who serves as “commander in chief” of the military, including “the militia of the several states”). So, where does Abbott’s idea come from? A theory promoted by far-right anti-immigration groups, and once endorsed by Justice Antonin Scalia in a 2012 dissent declaring that states have an “inherent power to protect their territory,” one that lies at “the core of state sovereignty” and encompasses the right “to exclude” immigrants “who have no right to be there”—by force when necessary. (No other justices joined Scalia’s opinion.) And Abbott drew on another source: a June opinion from the U.S. Court of Appeals for the 5th Circuit, authored by Trump-appointed Judge Andrew Oldham and joined by fellow Trump appointee Don Willett. In it, Oldham severely limited the president’s authority over the Texas National Guard unless it has been called into federal service, shooting down the military’s efforts to discipline Texas Guardsmen who rejected the COVID-19 vaccine. Abbott quoted from Oldham’s sweeping declaration that barred the president “from bypassing the States, stepping into Governor Abbott’s shoes, and directly governing Texas’s non-federalized militiamen.” This theory—and its attempted expansion by Texas—would overturn centuries of precedent and practice that give the commander in chief presumptive authority to direct the nation’s armed forces. ADVERTISEMENT Abbott raised these arguments out of an undisguised hunger to manufacture a face-off with the Biden administration that would, in his words, go “all the way to the United States Supreme Court.” When the Justice Department warned the governor that it would sue over the barrier, he responded belligerently, “Texas will see you in court.” The DOJ filed its lawsuit on Monday—but the complaint says nothing about the invasion clause, states’ ability to wage war, or any other contested constitutional principles. It is, rather, based entirely on the Rivers and Harbors Appropriation Act of 1899, an old but still relevant law that was invoked twice in a recent Supreme Court opinion. This act prohibits “the building” of any “structure” in any “navigable river” without permission from the Army Corps of Engineers. It independently bars the “creation of any obstruction” to the “navigable capacity” of a river unless it is “affirmatively authorized by Congress.” Recommended for You Our 3-Year-Old Has a Midnight Addiction We Can’t Seem to Break I Don’t Have to Work Anymore. But I’ve Kept up the Lie. Help! My Brother Actively Tried to Sabotage My Becoming a Foster Parent. The Rio Grande is a navigable river. A 1,000-foot barrier in the middle of the Rio Grande is an “obstruction” to its “navigable capacity.” And that barrier is a “structure” that Texas built without permission from the Army. It is therefore quite obviously illegal under the Rivers and Harbors Appropriation Act of 1899. The DOJ requested an injunction compelling Texas to remove the barrier and halt any plans to construct further obstructions in the Rio Grande. And it suggested that the case should be heard by the same judge who has already been assigned to separate litigation against the barrier brought by a canoe rental company. That judge is Robert Pitman, a Barack Obama appointee, who is likelier than most Texas judges to apply the actual law. Because Pitman’s decisions are reviewed by the 5th Circuit, where law goes to die, it’s tough to predict the immediate trajectory of this case. But even if the 5th Circuit goes rogue, this one should not be difficult for the Supreme Court. Chief Justice John Roberts and Justice Brett Kavanaugh have consistently supported federal supremacy over national defense while looking skeptically at red states’ efforts to seize control over border policy. They need not even invoke any lofty principles to reach the right result: The Rivers and Harbors Appropriation Act does all the work—with a crucial assist from Abbott’s awful lawyering. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.