The appeals court last week ruled that a floating barrier in the middle of the Rio Grande near Eagle Pass, Texas, which is at the border between the U.S. and Mexico, can remain there for now. The buoys have anchors that dig into the riverbed to keep them in one place.
The Biden administration has sued to have them removed, citing humanitarian and environmental concerns and saying the buoys were placed there without permission in violation of the Rivers and Harbors Act.
But the Fifth Circuit – with its full body of judges – has now overturned a decision from last December, when three of its own judges ruled that Texas must remove the barrier.
Texas Governor Greg Abbott called the latest ruling "justice."
David Spiller, a Republican state representative, last week commended Gov. Abbot for working so hard on this buoy measure, part of Operation Lone Star.
"It's a great win for Texas, which means it's also a great win for the United States," Spiller stated. "We're fighting the good fight down here and trying to secure the border when the Biden administration and our border czar, Kamala Harris, has failed and refused to do so."
The Biden administration is expected to appeal the decision to the Supreme Court, but it faces the burden of proving irreparable harm.
Typically, injunctive relief is awarded only if there is a reasonable expectation that the party will prevail in the coming trial, so for now, the Fifth Circuit's decision is one more tool in the toolbox for Texas.
"Certainly, there's no harm to be inflicted," Spiller asserts. "As a matter of fact, the harm is the other way around, if we don’t do something to help secure our border. We feel good about where we would be as far as the ultimate end of the case."
He is confident the buoys will survive a Supreme Court challenge. He also expects his bill, Texas Senate Bill 4, to get a boost from the buoy decision.
SB 4 aims to make it a criminal offense to cross the border into Texas at any place other than a legal point of entry. Illegal border crossers could also be charged for violating an order to return and for illegal re-entry.
The case for SB 4 has been heard by the Fifth Circuit, the Supreme Court, and the Fifth Circuit again in April, but a ruling has not been handed down.
"I think they've been waiting to rule with all the justices on the buoy case," Spiller suspects.
