Shelley Powers

Update: This was a difficult decision to read because there were so many people writing bits. I had missed Judge Oldham’s own dissent at the end of the document. Probably still trying to wrap my head around Ho’s. Altogether, 5 judges offered opinions in this one document.

Thanks to Chris Geidner for taking this document on, and managing to keep all the various judges straight. I know I sure couldn’t. And I really appreciated reading the view from someone who is a lawyer and expert on Constitutional law.

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Last Friday, the Fifth Circuit issued a positive decision in the buoys case. The decision was positive—the Fifth Circuit will no longer stand in the way of the merits trial for the case—but the writing in the decision is not.

A quick recap of the case:

Texas had plunked a 1000 foot saw-bladed deathtrap of buoys right in the middle of the Rio Grande. The US sued because Texas had never contacted the Army Corps about placing this obstacle in the river. Long story short: the US won a preliminary junction, Texas appealed, lost the appeal, and then asked for an en banc (all judges) hearing on the appeal.

I find it unlikely Texas would have succeeded in its request in another district (en banc hearings are rarely granted), but they are in the Fifth and they are Texas, so of course, the Fifth said sure thing.

This is when things get interesting. A few days after the Fifth granted Texas’ request, the district judge for the case, David Ezra, pulled the parties together into a status hearing. In the hearing, he laid out the schedule for proceeding with hearing the case on its merits. Just because a preliminary injunction is granted, doesn’t mean the case ends. A preliminary injunction typically doesn’t have all the facts. Only after the case proceeds to a trial on its merits can a decision be made that’s final.

Now, an Appeals court has to make their decisions based on their view of whether the trial judge errored when making a decision on the facts as they were known when a district court issues a decision, whether for a preliminary judgement or a final decision. If I emphasize this, it’s because Judge Ezra emphasized this, strongly, in the status hearing. And the reason why is there was a major change in the case after the preliminary injunction hearing.

Originally, the US sued Texas for violating the Rivers and Harbors Act. The thing with the RHA is then we get court cases where judges are making decisions about what is or is not a ‘river’ covered under the RHA. In this case, Texas says the Rio Grande is not covered because it’s not a commercially viable river, while the US notes that the Rio Grande has a long history of being included in the RHA.

However, after the preliminary injunction was issued in the district court, and before the Fifth halted the decision by granting an en banc hearing, the US filed an amended complaint and added another and much stronger argument to their case: that the buoys also violate a 1848 treaty we have with Mexico, known as the Treaty of Guadalupe Hidalgo.

If there’s debate about what is or is not a river in the RHA, there is no debate about the Rio Grande’s status in the treaty and one immutable fact: treaties with foreign powers are supreme. As the US noted in the amended complaint, the treaty states that Rio Grande navigation “shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation.”

Judge Ezra wanted to move ahead to the trial on the merits of this case and he wanted to do so expeditiously because while the Fifth is willing to push out the en banc hearing until May, the buoys are still in the river. These buoys are dangerous, and two bodies have already been recovered from them. And, as has been noted in the US filings, Mexico is particularly unhappy that the buoys are still in the river.

(Mexico: the country we’re dependent on to help manage the flow of migrants to the border. Mexico, whose actions based on a recent meeting with US officials have helped *slow the flood of migrants down to a very manageable trickle.)

However, moving this case expeditiously is not in Texas’ interest because, frankly, they know their case is toast. Even with the Fifth putting its entire fist on the scale, their case is toast. And where the case goes, the buoys go, and there’s fewer photo ops for Abbott and his Republican governor cohorts.

Their only option? Run to the Fifth. And run they did. Before Judge Ezra could rule on their request to halt the merits trial, before the US could even respond to their request to halt the merits trial, they improperly filed a motion to stop the case in the Fifth. What was worse was the Fifth granted it.

All of this leads up to the decision the Fifth published on the 9th. I’m not a lawyer, but I suspect they knew that they acted improperly in granting the Texas request. And knowing this left many of them feeling peeved and pissy as hell.

They denied Texas’ request to halt the merits trial, but one opinion writer, Judge Willett scolds Judge Ezra for ‘rushing’ to trial.

We are particularly concerned by the district court’s sudden decision
to expedite trial, its seeming indifference to the parties’ arguments, and its inconsistent comments about the need for extensive pretrial discovery.

Ultimately, though, after more pages of gratuitously chastising Judge Ezra, in a concurring opinion, Judge Willett gets to the point:

Despite our misgivings about the district court’s decisions, we cannot say that the rigorous criteria for mandamus are fulfilled. The district court’s scheduling orders, although questionable, fall shy of showing a “persistent disregard of the Rules of Civil Procedure” or a pattern of noncompliance that could justify mandamus relief.

In other words, Texas’ request for **mandamus relief was denied, because Judge Ezra did nothing wrong.

Judge Douglas, writing for herself and other judges, concurred with the decision, but not the chastisement.

Finally, I wish to emphasize that the parties were not blindsided by the district court’s decision to quickly move this case to trial on the merits. In its September 2023 order granting a preliminary injunction, the district court indicated that it “intend[ed] to expedite this matter” to resolve the full merits in “the shortest time possible.” Preceding that order, the district court permitted extensive discovery. Texas itself, in opposing the preliminary injunction, stressed the urgency with which it seeks to remedy the “invasion” at the border. Yet now, Texas seeks to prolong the termination of these proceedings by seeking intervention from this court at the eleventh hour without so much as awaiting the district court’s own order on the motion to stay.

The legal term for this is, “Zing.”

The next several pages are a dissent authored by Judge Ho. Judge Ho is a frustrated blogger at heart, as his opinions reflect a fairly extreme ideology more frequently than they reflect the law. The first few pages of his dissension tossed in several cases where the appeals court issued a writ of mandamus. But at page 16, all pretense of this being a legal argument gets tossed.

In essence he accuses some unknown country of ‘weaponizing’ the migrants and therefore the migrants crossing the border is an invasion in fact, and that Texas has the right to defend itself. He uses as justification that some governors agree with Texas, and some Congressional members agree with Texas, and some former FBI agents agree with Texas. Ultimately, he invokes the Consent of Congress but in a twisty way:

In its panel briefing filed months ago, the United States took issue with the State’s invocation of Article I, section 10, contending that a State’s authority to defend itself against invasion is “a non-justiciable political question committed to the political branches of the federal government.” Appellee’s Answering Brief at 36.

But think about that for a moment. If only “the political branches of the federal government” can determine that a State has been invaded, that effectively means that a State is constitutionally prohibited from exercising its sovereign right of self-defense without federal permission.

That’s hard to reconcile with the text of Article I, section 10, which makes clear that a State does not need “the Consent of Congress” to act if it is “actually invaded.” U.S. Const. art. I, § 10, cl. 3. Article I, section 10 establishes, first, a general rule that States ordinarily need Congressional consent to act—and second, an express exception for when States don’t. So it defies the plain meaning of Article I, section 10 to say that, as a general matter, a State must have “the Consent of Congress” to act—but if it’s “actually invaded,” the State still must have “the Consent of Congress.”

Invasion. To Abbott and evidently Ho, the flow of immigrants is an invasion. And Ho and Abbott and others reference James Madison when doing so.

James Madison repeatedly recognized that States feared attack from
other States, as well as from foreign sovereigns. He sought to assure fellow citizens that, under the Constitution, the States would reserve the right to defend themselves against either threat

However, as Just Security notes, to Madison, an invasion was an armed and violent military incursion.

In Madison’s discussion of Article IV in Federalist 44, he emphasizes that states require “protection against invasion” by both “foreign hostility” and potentially even aggressive fellow states of the union. Throughout Federalist 44, he speaks of both invasion and insurrectionary “domestic violence” as “bloody” events involving “military talents and experience” and “an appeal to the sword.”

This begs the question then: If Ho’s interpretation of peaceful migrants desperate for a new home is an invasion, does he recommend setting up machine guns on the shore of the Rio Grande and shooting the people down midstream? We already know Abbott is contemplating this, but does Ho also?

If Ho answers no, and I hope to goodness he does, then there is no invasion. There is no threat to the authority of either the US or Texas. And the only blood being spilled at the border, is the blood of migrants trying to make their way through razor wire.

These folk are migrants. These are men, women, and children fleeing to the United States because they are desperate for a better life. They are not armed soldiers with tanks attempting to overrun the legitimate government, as we’re seeing in Ukraine. They’re just people.

They’re like Judge Douglas’ ancestors, or Judge Willett’s ancestors, or the ancestors for many of us. They’re also like Judge Ho, who is an immigrant. They are just people.

I would expect such talk of an ‘invasion’ from the stubbornly ignorant, who still bemoan the ‘stolen election.’ I would expect it from Abbott, who uses the bodies of migrants as a podium from which to speak and obtain power. I would expect talk of ‘invasion’ from some members of Congress, particularly those who have little to show for their time in Congressional halls. And I would expect to hear Trump incorporate ‘invasion’ into all his campaign speeches, because the only way he can ever win is by creating imaginary enemies to vanquish.

I did not expect to hear this nonsense from an educated lawyer that the Senate deemed competent to sit on a federal court of appeals.

*When the group of disaffected individuals decided to go down to support Abbott at the border, they were disappointed to not find the ‘invasion’ they were promised. Abbott then swung from talking about the invasion of migrants, to how his border efforts are why there are fewer migrants. Abbot’s claim is false. The drop in migrants is based both on the cyclical nature of such migrations, and Mexico’s actions.

**From Cornell Law Library ‘A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion…According to the U.S. Department of Justice, “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”‘