This past September in the Federal Western District Court, Senior U.S. District Court Judge David Alan Ezra, a conservative justice originally appointed to the Federal bench by Ronald Reagan, ruled against Governor Greg Abbott and the State of Texas in their effort to erect floating marine barriers in the Rio Grande River. The governor had attempted to put 1,000 feet worth of buoys in the river that were connected with steel plates, and according to witnesses were also coiled with razor wire.
The barrier on the Rio has drawn up strong debate amongst immigration advocates and hawks and spawned serious debates over humanitarian issues. In addition, debates over the enforcement of Federal immigration law have engulfed the issue, as Supreme Court precedent has previously ruled that the Federal government has jurisdiction in enforcing Federal immigration law, notably when enforcement falls in interstate and/or international territories.
While all of these topics are salient to the river barrier fiasco, what is clear from Wednesday’s ruling is that the case at hand is now a Federal case about water more than it is immigration. While the Biden administration, the state of Texas, and the media has tried to portray the matter as one of border security, that is not the argument that all parties have put forth in the District court. The crux of their argument has to do with how the U.S. defines waters that fall under the jurisdiction of the Federal government, and they did it more so under Federal water statutes than immigration statutes. In fact, of the four main arguments put in front of the court, only one of them had to do with immigration, two of them were based on water.
At the heart of the matter is the phrase “navigable waters of the United States.” A phrase that the Federal government cites in the Rivers and Harbors Act of 1899 to build its case. According to the Federal government, since the Rio Grande constitutes both interstate and international waters, the river falls under the jurisdiction of the Federal government, and thus any structures built by a state on the water must be approved by the Feds, in this instance the U.S. Army Corps of Engineers.
Navigable waters may ring a bell for many Americans, because is the same pillar of statutory language that the Clean Water Act is built on, and it is the same phrase that the Supreme Court ruled on in Sackett v EPA earlier this year. In that case, the Supreme Court ruled unanimously that that in certain circumstances adjacent wetlands to a lake crossing state boundaries may not qualify as navigable waters of the U.S. In fact, for the past several decades, the Supreme Court has attempted to flesh out what exactly that phrase means in several cases, and the definition seems to be getting narrower by the case.
On immigration, the buoys bring up strong feelings on all sides of the aisles, but Americans should also know that the Texas case presents a very credible threat to established precedent for Federal jurisdiction in protecting water. And, in the realm of law, the Texas barrier case thus represents a potential opening for a redefinition of water policy just as much as it does immigration policy. While the legislation at hand in the Texas case is on the RHA Act of 1899, the language is identical to language used in the Clean Water Act.
Shortly after, the Fifth Circuit placed a temporary halt to Judge Ezra’s ruling, and the fate of navigable waters on the Rio seems to rest in their hands for now. Oral arguments were several weeks ago, and the topic of immigration barely came up. The entire discussion was almost exclusively on navigable waters. Governor Abbott has vowed to take this case all the way to the Supreme Court if needs be, and it is safe to assume that the Biden administration may take the same route if the Fifth Circuit does not rule their way. Regardless, rest assured, the American public should know that this is a water case first, and an immigration case second.
While the Biden administration may score a short-term victory with respect to immigration in this case, they are risking yet again putting the future of Federal jurisdiction over water in the hands of the new wing of the Supreme Court. Regardless of their opinions on immigration, Americans should know that other bodies of law are at play, and more importantly at risk, in this case.