"We will see you in court, Mr. President"
Apparently we are not done inflicting dangerous indignities on migrants. It’s not enough to force them to take a long, danger-filled path to try and enter the United States without legal authorization because Congress can’t break gridlock for long enough to pass a workable plan for immigration; now, the state of Texas is lining the banks of the Rio Grande river with razor wire to trap migrants, injuring some, including young children.
A Texas Trooper, Nicholas Wingate, has said he and another trooper were ordered to “push the people back into the water to go to Mexico” when they came upon a group of 120 migrants that include young children and mothers nursing babies. “I believe we have stepped over a line into the inhumane. We need to operate it correctly in the eyes of God,” the trooper wrote an email. He also described a 19-year old woman, found doubled over in pain and having a miscarriage, while trapped in the razor wire the state of Texas has placed at the river’s edge.
Texas tried to hide behind a state disaster act to justify putting up a wall of buoys blocking the river, along with the sharp wire. The barrier is roughly 1,000 feet of buoys ranging from four to six feet in diameter, installed along with razor wire near the border. The Justice Department sued Texas Monday afternoon, after warning the state it would do so if it didn’t remove the barriers. It did not.
Texas Governor Greg Abbott tweeted Friday that the state “has the sovereign authority to defend our border.” But that’s simply not the case here.
The lawsuit, filed by DOJ’s Environment and Natural Resources Division, alleges that installing the floating barrier in the Rio Grande violates the Rivers and Harbors Act. DOJ asks the court to enjoin anymore work on building the barrier and to require Texas to remove it. The law could not be more clear in condemning Texas’s approach here. It is meant to protect navigation and public safety and it explicitly prohibits Texas from doing what it has done here:
“The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”
The language of the statute makes clear that Texas’s position is a complete loser here. And the Governor knows that. He knows that when this matter works its way up to the Supreme Court he’ll lose. Winning it court was never his goal. This is just another pathetic exercise in scoring political points at the expense of vulnerable people. It’s a flagrant violation of the law.
The DOJ Associate Attorney General, Vanita Gupta, said in a statement that the barrier “presents humanitarian concerns,” “has prompted diplomatic protests by Mexico,” and that it “risks damaging U.S. foreign policy.” Mexico’s secretary of foreign relations requested that the U.S. government remove the buoys and razor wire in June.
That gets to the heart of the matter. Policy on immigration is set by the federal government. States don’t have that authority. The tension between some of the conservative southern states and the federal government reemerges like clockwork with each new Democratic presidential administration. During the Obama presidency, states like Arizona and Alabama passed laws that imposed restrictions on undocumented migrants that exceed federal policy. In Alabama, school children had to disclose their parents’ immigration status to register for school. Church groups that transported people to medical appointments were told they would face criminal penalties for helping undocumented people. And so on. It was an effort to make living conditions so onerous and the threat of separation from family so omnipresent that migrants would “deport themselves.”
But the courts, including the Supreme Court in Arizona v. U.S., held that states may not implement their own immigration laws. When there is a conflict between state and federal law on immigration, federal law is supreme. Although many issues are reserved to the states for decision-making, immigration is not one of them. That’s easy to understand—imagine a foreign country confronted with 50 different state laws it must navigate to square away issues involving its citizens. It makes sense to have a federal standard. Like other issues where a national mandate makes sense, Congress has demonstrated an intent to preempt state law when it comes to immigration, much as it has done in critical issues like national defense and commerce. Federal law is the law of the land when it comes to immigration.
But so far, at least, DOJ has positioned the issue as one involving waterways of the United States. That is a simple and elegant legal path to a ruling in the government’s favor here. But the underlying issues involving immigration will linger, as they have through the decades of Congressional inaction.
The lawsuit will proceed in the Western District of Texas. In the meantime, more human beings, fleeing gang violence and other intolerable conditions, often accompanying young children, will be greeted at the U.S. border by a barricade of razor wire. The Biden administration was right to file this lawsuit and to do it so promptly.
We’re in this together,
Joyce
This is George Wallace standing on the schoolhouse steps all over again. President Kennedy sent federal troops to help Governor Wallace understand that he would abide by the law, like it, or not. President Biden should do the same. In fact, President Biden should start by nationalizing the Texas National Guard placing them under federal jurisdiction to make clear whose orders they will be required to follow, and then send the Army Corps of Engineers to remove the barriers and razor wire, deducting from any federal funds due Texas the entire cost of compliance.
This is beyond horrifying! I must also add that as a pediatrician, my first reaction to the photo of the child's arm was also horror at the choice of using staples instead of the more appropriate standard in this country for this location; stitches or surgical glue. Sadly this child will have the addition of terrible external scars to the internal scars from this experience.