The en banc 5th U.S. Circuit Court of Appeals at New Orleans rejected the U.S. Department of Justice's reading of a statute called the Rivers and Harbors Appropriation Act of 1899. The law bars obstructions in navigable waterways.
The United States will likely be unable to prove that the barrier is located in a navigable stretch on the Rio Grande, the 5th Circuit majority said. As a result, the district court abused its discretion when it required Texas to move the barrier to the riverbank...
The majority opinion by Judge Don R. Willett didn't reach a second argument by Texas, the Volokh Conspiracy reports. The argument is that Texas can place the buoys in the river, even if federal law forbids it, under one of the invasion clauses of the Constitution.
Texas claims that illegal immigration and drug smuggling constitute an 'invasion' permitting its action. The clause is at Article I, Section 10, Clause 3 of the Constitution, according to the Volokh Conspiracy.
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