This article has been updated since publication.

The U.S. Fifth Circuit Court of Appeals ruled to reinstate the injunction against Texas that ordered Texas to move the buoy barriers. 

The Fifth Circuit had previously stayed the injunction in question, allowing Texas to keep its buoy barriers in the Rio Grande until the court ruled. 

A three-judge panel—composed of Judge Dana Douglas, appointed by President Joe Biden, Judge Carolyn Dineen King, appointed by former Democrat President Jimmy Carter, and Judge Don Willett, appointed by former President Donald Trump—ruled 2-1 in favor of the federal government. 

The U.S. Department of Justice is arguing that the marine barrier violates the Rivers and Harbors Act, and asserts that the marine buoys pose an immediate threat to navigation and public safety.  

On September 6, following a hearing on the motion for a preliminary injunction filed by the U.S., the federal district court granted it and ordered Texas to “cease any work on the floating barrier and to reposition it on the Texas side of the riverbank by September 15, 2023.” 

However, the Fifth Circuit Court of Appeals administratively stayed the district court’s order until consideration by a panel.

Now, the three-judge panel has ruled in favor of the district court’s decision to force Texas to remove the barriers.

However, Judge Willett did argue in his dissent of the ruling that “the United States has failed to carry its burden on any of the four preliminary injunction factors.” 

“The law and the record are clear: The United States cannot succeed on its RHA [Rivers and Harbors Act] claim because it has not shown that this 1,000-foot segment of the Rio Grande is navigable,” argues Willett. “In reaching the opposite conclusion, the majority opinion and the district court resort to evidence that is foreclosed to us by a century-plus of case law. Nor can the United States satisfy the three other preliminary injunction factors.”

Nevertheless, the case is not quite over, as Texas can now petition for an en banc review of the case by all Fifth Circuit judges or appeal to the U.S. Supreme Court. 

Update: Texas Attorney General Ken Paxton announced Saturday that Texas is requesting an en banc rehearing. 

Sydnie Henry

A born and bred Texan, Sydnie serves as the Managing Editor for Texas Scorecard. She graduated from Patrick Henry College with a B.A. in Government and is utilizing her research and writing skills to spread truth to Texans.