The Texas Public Policy Foundation filed an amicus brief in support of Texas’ right to defend its sovereignty on behalf of 22 Republican members of Congress from seven states.
They did so in a lawsuit filed by the Biden administration over floating marine barriers Gov. Greg Abbott had installed as part of his border security mission, Operation Lone Star. The DOJ sued, alleging the floating marine barriers violate Section 10 of the Rivers and Harbors Act.
The brief was filed Wednesday with the U.S. District Court for the Western District of Texas Austin Division.
The Biden administration hasn’t met its required burden to establish federal jurisdiction, TPPF argues. When the federal government seeks to regulate using the Commerce Clause of the U.S. Constitution, it must establish jurisdiction in order to do so.
Under the Rivers and Harbors Act, this means the federal government must produce evidence that the river it seeks to regulate is navigable for the purposes of interstate commerce. The only “evidence” it’s using to support its claim is a 1984 letter from the U.S. Coast Guard that points to a 1947 claim by the Coast Guard that the river was navigable.
“This is not sufficient,” TPPF says.
The members of Congress represented in the brief are all Republicans, led by U.S. Rep. Jodey Arrington of Texas. Joining him are 14 members of the Texas delegation: Reps. Brian Babin DDS, Michael Burgess, MD, John Carter, Michael Cloud, Jake Ellzy, Lance Gooden, Ronny Jackson, Nathaniel Moran, August Pfluger, Chip Roy, Keith Self, Pete Sessions, Beth Van Duyne and Roger Williams.
Other members include U.S. Reps. Andy Biggs of Arizona, Vern Buchanan and Kat Cammack of Florida, Clay Higgins of Louisiana, David Rouzer of North Carolina, Jeff Duncan of South Carolina, and Sam Graves of Missouri.
Arrington led a delegation last month outlining Texas’ constitutional right to defend its border, citing the invasion clauses of the U.S. Constitution. What makes the border crisis “the most imminent safety and security threat to the U.S. is the unprecedented invasion by the drug cartels,” Arrington said. The federal government is required by the U.S. Constitution to secure its borders, including those of states.
“The sovereign states created the federal government,” he said, “not the other way around. When the states entered into that social contract of the Constitution of the United States, they may have ceded some of their authority to the central government but they didn’t surrender their sovereignty.”
TPPF also argues that a 1947 observation “cannot be the perpetual metric for federal jurisdiction over rivers in Texas.” It states in the brief, “As any Texan knows, rivers change. Indeed, hundreds of miles of the Rio Grande that were deemed navigable in the 1947 Coast Guard finding relied on by the government are now dry.”
It’s “not too much to ask that a federal agency asserting jurisdiction show its work by providing some current evidence as to navigability,” the brief continues. “To hold otherwise would allow the agency to rewrite the statute and potentially violate the Constitution.”
According to the Texas State Historical Association, which has been assessing the Rio Grande River since at least 1952, the river “has never been navigable except near its mouth and, on rare occasions, to Laredo.”
The brief also includes a picture of a dried-out riverbed near Big Bend where people are walking on a rock-like surface. There is no water; it is only navigable on foot.
Abbott has argued President Joe Biden’s “ongoing violation of Article IV, § 4 of the U.S. Constitution has left me no other choice” than to secure the Texas border and block illegal entry.
The DOJ’s Rivers and Harbors Act analysis “misses the mark,” Abbott maintains. “In that statute, Congress decreed that ‘it shall not be lawful to build . . . any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any . . . water of the United States.’
“To state the obvious, that statute does not describe any action by the State of Texas.”
