Judge Dana Douglas, nominated by President Biden to the Fifth Circuit, wrote a 2-1 decision affirming a lower court injunction that blocked Texas Governor Greg Abbott from erecting a floating barrier in the Rio Grande river designed to stop immigration. Trump judge Don Willett tried to overturn the injunction,  echoing Texas’ arguments in his dissent. The December 2023 decision was in US v Abbott.

 

What happened in this case?  

Claiming that it was necessary to block illegal immigration, Texas Governor Greg Abbott ordered the installation of a floating barrier of buoys in a section of the Rio Grande river. The buoys were connected by heavy metal cable and anchored to the river bed. Abbott announced more such barriers would come in the future.The federal government filed suit against Abbott. It contended that the barrier violated the Rivers and Harbors Appropriations Act because it obstructed the “navigable capacity” of the river.

The district court granted a preliminary injunction against Abbott, ordering him to stop work on the barrier and move it to the Texas riverbank as the litigation continued. Texas appealed to the Fifth Circuit. , which granted an administrative stay of the injunction as it considered the case.

 

How did Judge Douglas and the Fifth Circuit Majority Rule and Why is it Important?

Judge Douglas wrote a 2-1 decision that dissolved the administrative stay and affirmed the preliminary injunction. She thoroughly reviewed the record and the law in the case. She explained that the US was likely to succeed on its claims, based initially on the evidence demonstrating that the relevant portion of the Rio Grande was “navigable” because it “had been used or was susceptible of use in commerce in the past” and “was susceptible of future use in commerce with reasonable improvements.” Abbott’s barrier obstructed the river’s navigability, the district court found, because it clearly tended to ‘interfere with or diminish” the river’s “navigable capacity,” making the barrier impermissible without US permission.

Douglas also agreed with the district court that the “balance of equities” clearly favored the US position. This was because refusing to grant an injunction, both courts found, would likely cause ”irreparable injury.”  The barrier “threatens” to harm US-Mexico relations, both courts explained, by making it harder to implement a provision of a US-Mexico treaty concerning allocation of Rio Grande waters, and Mexico had “already cancelled” a meeting on the issue because of the barrier. In addition, both courts agreed that the barrier posed a significant “risk to human life,” as supported by Texas’ “own statements noting the treachery of crossing the Rio Grande.”

Judge Douglas’ ruling was important to stopping Abbott’s  border barrier plan and  vindicating the US position that governors like Abbott cannot take the law concerning US borders and immigration into their own hands and erect barriers not authorized by the federal government. (Note that in January 3034, however, a majority of the full Fifth Circuit voted to vacate the panel ruling and reconsider the case>)  The ruling also serves as an important reminder of the significance of promptly confirming high-quality Biden nominees like Judge Douglas to our federal courts.