Thursday, September 7, 2023
A federal court ruled that Texas Governor Greg Abbott's border barrier in the Rio Grande likely violates the federal Rivers and Harbors Appropriation Act of 1899. The court ordered the state to reposition the barrier by September 15 pending the outcome of the case. Texas is appealing.
The court said that the barrier is either a "boom" or "other structure" in the Rio Grande, and therefore violated the RHA, which prohibits erecting such things that obstruct the navigable waters of the U.S. without the federal government's permission. (The state argued that the Rio Grande isn't navigable where the barrier is located. The court, in a lengthy discussion, rejected that argument.)
More interestingly, the court rejected the state's argument that the barrier was authorized by the Constitution's Self-Defense Clause in Article I, Section 10, Clause 3. That provision says that "[n]o State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." The court said that it's the federal government's job (not the states') to determine when there's an "invasion," and that it's not a job for the federal courts.
In response to the state's claim that the Clause allows Governor Abbott to "engage in War" whenever he determines that there's an invasion, the court noted the Governor's power to wage war would be "subject to no oversight" and "would give the Governor of Texas more power than is possessed by the President of the United States without authorization from Congress." The court called the claim "breathtaking."