Biden is taking Texas to court over its floating border barrier

The Biden administration has sued Texas Republican Gov. Greg Abbott for refusing to remove a floating barrier along the Rio Grande that has become a symbol of the state’s efforts to take immigration enforcement into its own hands.

Last week, Texas installed the barrier — made of large buoys and concertina or razor wire strung along the river banks — with the aim of preventing migrants from crossing the river as part of a broader border security initiative called “Operation Lone Star.” Launched by Abbott in 2021, the initiative has deployed over 20,000 military and law enforcement personnel to the border.

Over the last few weeks, Operation Lone Star has faced new criticism following reports that Texas troopers were instructed to push migrant children back into the Rio Grande and to withhold water from migrants as a heat wave with temperatures exceeding 100 degrees Fahrenheit grips the Southwest. Those reports are under internal investigation, but Texas Department of Public Safety officials have denied them.

Rather than backing off in the face of the Justice Department lawsuit, Abbott has doubled down on his defense of the border barrier and Operation Lone Star more broadly, signaling the start of a legal fight that he may be willing to take all the way to the US Supreme Court if it comes to it. “Texas will see the Biden Administration in court to aggressively defend our sovereign authority to secure the border,” he tweeted Monday night.

The Department of Justice’s lawsuit, filed Monday night, aims to remove the buoys and razor wire. It argues that Texas installed the barrier without permission from the federal government, which is charged with administering the nation’s immigration laws, and that states can’t obstruct navigable waterways without congressional authorization — something Texas did not have. Its lawsuit demands that Abbott remove the barrier and any other structures or obstructions in the Rio Grande.

Associate Attorney General Vanita Gupta said in a statement that the barrier “poses threats to navigation and public safety and presents humanitarian concerns.” Mexico is not party to the suit, but has also asked Texas to remove the barrier, arguing that it runs afoul of a US-Mexican water treaty and that it may infringe on Mexican territory.

The DOJ has a recent history of wins when it comes to cases where states have clashed with the federal government over immigration enforcement. In a 2012 US Supreme Court case concerning an Arizona “show me your papers” law, the justices sided with the federal government in striking down most of the state law because it was preempted by federal law. In this case, federal law does clearly lay out procedures for construction in navigable waters that Texas does not appear to have followed.

Whether his state wins or loses the lawsuit may not matter to Abbott, who cut his teeth suing the Obama administration dozens of times as the state attorney general. A legal tussle with the federal government creates the opportunity for him to cast himself as a champion of small government and states rights, while also attacking Democrats and the Biden administration. It’s an opportunity the governor seized immediately as news of the lawsuit broke.

“Biden refuses to enforce federal laws that prohibit dangerous illegal border crossings between ports of entry,” Abbott wrote on Twitter Tuesday. “Until Biden upholds his constitutional duty to enforce those laws, Texas will be stepping up to do so.”

Operation Lone Star has long been a controversial program. It was under the operation that Abbott spearheaded a busing program under which migrants have been picked up at the border and sent to blue cities — a program that Florida Gov. Ron DeSantis has adopted in his own state. More than 26,000 migrants have been sent to New York City, Chicago, Philadelphia, Denver, Los Angeles, and Washington, DC, under Texas’s program.

Abbott has maintained that he’s merely acting in the interest of his state, which he says has had to bear the brunt of the costs of unauthorized border crossings. He also claims Operation Lone Star helps vulnerable migrants by sending them to states that want them and by encouraging them to seek entry to the US at ports of entry. Abbott’s also repeatedly claimed, as he did on Tuesday, that the federal government has essentially forced him to act because Biden hasn’t made stopping migration across the US-Mexico border a priority.

However, Biden isn’t the “open borders” president that Abbott’s office and many others on the right make him out to be. For more than two years, Biden maintained one of former President Donald Trump’s signature immigration policies, the Title 42 policy, under which migrants were rapidly turned away at the border more than 2.8 million times.

When the policy ended in May, the Biden administration emphasized that migrants intercepted while attempting to cross the border without authorization would face harsher penalties than they did under Title 42 if found ineligible for humanitarian protections. He also implemented a new policy that makes it harder to win asylum after crossing the US border without authorization and passing through another country without seeking protection there first. And though there were predictions that the end of Title 42 would spur a border crisis, border apprehensions actually significantly declined in June, from more than 200,000 the month prior to less than 145,000.

By digging in his heels on the floating barrier, Abbott is again trying to paint the Biden administration as weak-kneed on immigration. But Biden has been enacting hardline policies for years to insulate himself from such attacks — and now the migration numbers at the southern border are beginning to reflect that.

The question is whether those numbers are sustainable. A federal judge on Tuesday struck down Biden’s asylum policy on the basis that it conflicted with the requirements for asylum seekers laid out in federal law. The administration has credited that policy in part for the recent drop in apprehensions, and now has one less tool to manage the border.