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Fox News' Bill Melugin reports the latest from Eagle Pass, Texas.
The Biden Justice Department recently filed a lawsuit to force Texas to remove a floating barrier on the Rio Grande River. Nothing could be more indicative of the reckless and dangerous hypocrisy of President Joe Biden and his open-borders advisors. It seems as if they would rather see men, women, and children drown trying to traverse the Rio Grande than take any effective steps to close the border and deter illegal crossings.
The July 24th lawsuit claims that the floating barrier is a violation of the Rivers and Harbors Appropriations Act of 1899 because Texas did not get the permission of the U.S. Army Corp of Engineers to install it.
The floating barrier at Eagle Pass, Texas, is about three football fields long and consists of buoys that are four feet in diameter and spin to make climbing them difficult. They also have hard plates that extend to the river floor so you cannot swim under them. They are a "sophisticated apparatus that was tested extensively by the U.S. Border Patrol," Tom Homan, the former Acting Director of U.S. Immigration and Custom Enforcement, told us.
According to Lt. Chris Olivarez of the Texas Department of Public Safety, that portion of the Rio Grande "is very dangerous" so having this marine barrier in the river "will detour any unlawful crossings, will prevent drownings, and will prevent human smugglers" from bringing their victims across the river. Homan agrees, saying that it discourages "the most vulnerable aliens from attempting to cross the already dangerous river" and it "will save many lives."
JUSTICE DEPARTMENT SUES TEXAS OVER FLOATING BORDER BARRIER
Indeed, as Texas Gov. Greg Abbot pointed out in the defiant letter he sent to Biden after the Justice Department filed its lawsuit, "hundreds of migrants have drowned in the Rio Grande River trying to cross the border illegally."
Prevent drownings and unlawful crossings? Stop the brutal human smugglers of the drug cartels? For whatever reason, the Biden administration simply can’t allow such effective policies to exist.
The federal law that the lawsuit is based on is 33 U.S.C. § 403. That provision bans the "creation of any obstruction…to the navigable capacity of the waters of the United States" and makes it unlawful to build a "wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river…outside of established harbor lines" without the permission of the Army Corp of Engineers.
Gov. Abbott, who is a lawyer and the former attorney general of Texas, says in his July 24th letter that the statute does not "describe any action by the State of Texas." He is implying that the type of floating barrier Texas has created is different than the type of permanent or semi-permanent fixed structures described in the statute such as a wharf or pier.
But it is also a first rule of statutory interpretation that one must look at a statute as a whole, and not just isolated parts. The very first line of the statute says that one cannot create an obstruction "to the navigable capacity" of a river such as the Rio Grande, which includes all of the structures listed.
When it files its answer to the lawsuit, Texas will no doubt argue that it has not obstructed the "navigable capacity" of the Rio Grande. If the state had put in a barrier across the river, going from the Texas side to the Mexican side and preventing boats from being able to navigate that stretch of the Rio Grande, then the state would be obstructing navigation of the river.
But the floating barrier instead is simply stretched along the Texas shore to prevent individuals from being able to land on the Texas side of the river. That does not prevent any boat from traversing the Rio Grande going either upstream or downstream, so Texas will claim that it has not violated the crucial language in the statute about obstructing the "navigable capacity" of a water of the United States.
This lawsuit presents an unprecedented and unique question and any decision is going to depend on how a court interprets this 1899 statute. No doubt, there will be maritime experts brought forward as witnesses disagreeing on whether the floating buoys fall within the prohibited structures outlined in the law.
But from a policy standpoint, the Biden administration’s opposition is disgraceful. In its press release, the Justice Department claims that the floating barrier "poses threats to navigation and public safety and presents humanitarian concerns." As we’ve pointed out, however, it does not pose a threat to navigation, only a threat to smugglers being able to land on the Texas shoreline.
Moreover, anything that deters swimmers so they won’t drown in the Rio Grande can’t be said to pose a threat to "public safety." Removing the barrier does the exact opposite, ensuring that hundreds more men, women, and children will die in the river. Now that’s a "humanitarian concern."
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Finally, the Justice Department complains that the floating barrier "has prompted diplomatic protests by Mexico and risks damaging U.S. foreign policy." Just to make sure we are clear on this: We are supposed to be concerned about the protests of a corrupt Mexican government that refuses to take any real steps to stem the tide of its citizens leaving the country or to stop the sex traffickers and drug smugglers that are illegally crossing into the U.S.? Really?
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As Gov. Abbott said in his letter to Biden, "if you truly care about human life, you must begin enforcing federal immigration laws." "By doing so," added Abbott, "you can help me stop migrants from wagering their lives in the waters of the Rio Grande" and "help save Texans, and indeed all Americans, from deadly drugs like fentanyl, cartel violence, and the horrors of human trafficking."
The choice is just that stark.
Charles "Cully" Stimson is a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies.