司法部可能会成功地宣称浮动屏障奥斯汀的一名联邦法官裁定，德克萨斯州部署在格兰德河以防止移民穿越的浮标是非法安装的，并补充说，用于证明浮标合理性的论点是“不可信的”，至少在一个例子中，是违宪的。
法官大卫·艾伦·以斯拉(David Alan Ezra)周三命令孤独之星州移动浮标，并表示司法部可能会主张德克萨斯州首先缺乏安装浮标的适当授权，并且该州在这样做时采用了“不令人信服的”和相互矛盾的理由。
该裁决授予司法部一项初步禁令起诉德州七月份在格兰德河放置浮标。
“州长阿博特宣布，他没有为孤星行动(Operation Lone Star)申请许可，该行动是德克萨斯州建造浮动屏障的反移民计划，”以斯拉写道。“对德克萨斯州来说不幸的是，在国家通航水域安装障碍物之前，联邦法律要求的正是许可。”
德克萨斯州州长格雷格·艾伯特表示，该州将对这一裁决提起上诉，称其“不正确”。
以斯拉法官的命令要求该州在9月15日之前与陆军工程兵部队协调移动浮标，但周四，美国上诉法院批准暂时搁置，允许德克萨斯州保留浮标，至少目前如此。
阿博特周三在一份声明中说:“我们将继续利用一切战略来确保边境安全，包括部署得克萨斯州国民警卫队士兵和公共安全部士兵，并安装战略屏障。”“我们捍卫德克萨斯州主权、保护人民免受拜登总统开放边境政策造成的混乱的战斗才刚刚开始。"
在提交给法院的文件中，德克萨斯州表示，部署浮标系统是该战略的一部分，以防止“成千上万的外星人”涌入...包括贩运人口、武器和大量芬太尼等毒品的卡特尔成员。”
“无论如何，这相当于‘以敌对的方式进入’该州拥有宪法权力来击退入侵，”该州说。
但法官裁定德克萨斯州的“入侵防御”是一个政治问题，而不是法律问题，即使如他们所声称的那样，在南部边境有“入侵”，那么保护美国海岸将是联邦政府的职责范围，而不是德克萨斯州。
以斯拉由罗纳德·里根总统任命，自1988年起任职，他说，有“几项宪法条款”，“赋予联邦政府——而不是州——承认和应对入侵的权力”，并且“政治问题学说禁止考虑德克萨斯州的‘入侵’防御。”
“得克萨斯州的自卫论点是不可信的，”法官写道。
法官说，尽管孤独之星州一再声称拥有保卫边境的主权，但联邦“防止国家可航行水域中未经授权的障碍的权力胜过了州政策偏好”。
法官不仅驳回了德克萨斯州的权利主张，即在格兰德河安装1000英尺长、4英尺宽的相互连接的浮标链，还驳回了他们试图描述浮标系统的方式。
德克萨斯州采取了“令人困惑的立场”，即浮标不能是一种“结构”(在可通航的美国水域，需要陆军工程兵团的许可)，因为浮标“有助于导航”，法官引用该州的论点写道。
但这是德克萨斯州“方便”的说法，“与其自身的描述相矛盾”，法官写道——因为该州曾表示，浮标是作为“物理屏障”而设计的，旨在“阻止格兰德河沿岸热点地区的非法穿越。”
法官写道，“德克萨斯州的论点是，浮动屏障不是永久的，不足以构成一个结构，这让人难以置信。”
法官说，还有一个问题是，德克萨斯州的绝大多数浮标屏障是如何出现在墨西哥一侧的。
8月，司法部提交了一份两国地形测量报告，该报告于7月下旬进行，发现近80%的障碍物位于墨西哥水域。几天后，法官裁决的一个脚注称，得克萨斯州“被观察到似乎在‘重新定位浮动屏障’，使其更靠近美国银行”。
在一次听证会上，“有证据表明浮标被移回了德克萨斯水域。也有证据表明浮标不可能漂移，”法官写道。“但在2023年8月21日的一份声明中，州长阿博特表示，他们已经漂移。”
“关于80%的浮标是由于漂流还是由于最初安装不正确而最终出现在墨西哥水域，仍然有些模糊不清，”法官写道。
In battle over border barriers, judge calls out Texas' contradictory arguments
The Justice Department is likely to succeed on its claim thatfloating barriersTexas deployed in the Rio Grande to prevent migrants from crossing were illegally installed, a federal judge in Austin ruled -- adding the arguments used to justify the buoys are “unconvincing” and, in at least one instance, unconstitutional.
Judge David Alan Ezra ordered the Lonestar state to move its buoys on Wednesday and said the Justice Department is likely to prevail on its claim that Texas lacked proper authority to install them in the first place and that the state had employed "unconvincing" and conflicting rationale in doing so.
The ruling grants a preliminary injunction to the Department of Justice, whichsued Texasfor placing the buoys in the Rio Grande in July.
"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," Ezra wrote. "Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation's navigable waters."
In this Aug. 1, 2023, file photo, buoys are placed in the Rio Grande River in Eagle Pass, Texas.
Adam Davis/EPA via Shutterstock, FILE
Texas Gov. Greg Abbott has said the state will appeal the ruling, calling it "incorrect."
Judge Ezra's order gave the state until Sept. 15 to coordinate with the Army Corps of Engineers to move the buoys -- but Thursday, a U.S. Appeals Court granted a temporary stay allowing Texas to keep the buoys in place -- at least for now.
"We will continue to utilize every strategy to secure the border, including deploying Texas National Guard soldiers and Department of Public Safety troopers and installing strategic barriers," Abbott said in a statement Wednesday. "Our battle to defend Texas' sovereign authority to protect lives from the chaos caused by President Biden's open border policies has only begun."
In court filings, Texas has said the buoy system was deployed as part of that strategy to protect against a surge of "[t]housands of aliens ... including members of cartels that traffic in people, weapons, and vast quantities of drugs like fentanyl."
"By any account, this amounts to 'ent[ry] in a hostile manner.' And the State has the constitutional power to repel that invasion," the state said.
But the judge ruled Texas' "'invasion' defense" is a political question -- not a legal one -- and that even if there were an "invasion" at the Southern border, as they've claimed, then protecting American shores would be the province of the federal government, not Texas.
Ezra, appointed by President Ronald Reagan and serving since 1988, said there are "several constitutional provisions" which "assign the federal government—not states—the authority to recognize and respond to invasions," and "the political question doctrine bars consideration of Texas's 'invasion' defense."
"Texas's self defense argument is unconvincing," the judge wrote.
Though the Lonestar State has repeatedly asserted its sovereignty to defend the border, federal "power to prevent unauthorized obstacles in the nation's navigable waters trumps state policy preferences," the judge said.
The judge rejected not only Texas' claims of authority to install the 1,000-foot-long, four-foot-wide chain of interconnected buoys in the Rio Grande -- but also the way they attempted to characterize that buoy system.
Texas takes the "confusing stance" that the buoys can't be a "structure" (which, in navigable U.S. water, would require an Army Corps of Engineers permit) because buoys "aid navigation," the judge wrote, quoting the state's arguments.
But this is a "convenient" claim from Texas that "contradicts its own description," the judge wrote -- since the state had said the buoys were designed as a "physical barrier" created "to deter illegal crossing in hotspots along the Rio Grande."
"Texas strains credulity with its argument that the floating barrier is not permanent enough to constitute a structure," the judge wrote.
Questions also remain as to how the vast majority of Texas' buoy barriers wound up on Mexico's side of the river, the judge said.
In August, the Justice Department submitted a binational topographic survey, conducted in late July, which found that nearly 80 percent of the barrier was positioned in Mexican waters. A few days later, Texas was "observed seemingly 'repositioning the Floating Barrier' closer to the United States bank," a footnote in the judge's ruling says.
At a hearing, "testimony was elicited that the buoys were moved back into Texas waters. Testimony was also elicited that the buoys could not have drifted," the judge wrote. "But in a statement on August 21, 2023, Governor Abbott indicated that they had drifted."
"There is still some ambiguity as to whether 80% of the buoys ended up in Mexican waters by drifting or by being originally, incorrectly installed there," the judge wrote.
