The Biden administration on Wednesday urged a U.S. appeals court to rule that Texas cannot keep a 1,000-foot-long floating barrier in the Rio Grande, one in a series of measures taken by the Republican-led state to deter illegal border crossings.
The full New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments for about an hour in an appeal by Texas of a judge's ruling that said the state needed the federal government's permission before installing the buoys last July.
Wednesday's arguments focused not on immigration policy but on whether the area of the Rio Grande near Eagle Pass, Texas where the barrier was placed is under state or federal control. Under a U.S. environmental law called the Rivers and Harbors Act, the federal government would have the authority if the area were navigable for commercial purposes.
Lanora Pettit, a lawyer for Texas, told the 5th Circuit that the river, which forms the U.S. border with Mexico, is as little as 18 inches deep in that area and there is no history of commercial use of the waterway.
"The Rio Grande is little more than a creek with an excellent publicist," Pettit said.
Michael Gray of the U.S. Department of Justice countered that small border patrol boats, kayaks and ferries all operate in the area, showing its potential for other commercial uses.
It was not clear how the court was leaning, though a few of the judges seemed skeptical of Gray's arguments.
Circuit Judge Kyle Duncan, an appointee of Republican former President Donald Trump, said that other courts have treated waterways as navigable only when they can be "used as a highway" by boats moving up or down the waterway. Ferries, by contrast, cross rivers, he said.
Gray responded that ferry traffic "establishes a highway for commerce" and that because the Rio Grande forms an international border, its use necessarily affects foreign commerce.
Another Trump appointee, Circuit Judge Don Willett, said it could not be the case that the federal government controls every waterway along the border.
"I could imagine a lot of border streams and creeks where you could have friends ferrying Girl Scout cookies in a small rowboat," he said.
The full court agreed to hear the case after a divided three-judge panel sided with the Biden administration in December. Twelve of the court's 17 active judges are appointees of Republican presidents, but two of the three judges on that panel were appointed by Democrats.
