The 5th US Circuit Court of Appeals issued a temporary stay Thursday night allowing the state of Texas to keep floating barriers in the Rio Grande.
A lower court judge had ordered Texas to take down the barriers by September 15 at its own expense. The panel’s decision Thursday puts that order on hold while the appeals court considers the case. It means that Texas does not have to start the process of removing the barriers, for now.
The swift ruling by the 5th Circuit comes a day after US District Judge David Ezra wrote that Republican Gov. Greg Abbott needed permission to install the barriers, as dictated by law – a win for the Biden administration.
“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. Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters,” Ezra wrote in his ruling. The judge also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
The controversial border buoys were deployed in the Rio Grande as part Operation Lone Star, Abbott’s border security initiative. In July, the Justice Department sued the state of Texas claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas, meanwhile, maintained it had constitutional authority to deploy the floating barriers. Ezra at times requested that the state’s attorneys focus on the buoys and not dive into other issues like fentanyl and overall illegal immigration on the US southern border.
This story has been updated with additional details.