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PaperclipPerfector  9mo ago (text post)   31358 thread views

Culture War Roundup for the week of July 24, 2023

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Surprised no one’s posted this yet: https://apnews.com/article/texas-border-water-barriers-doj-immigration-83bcb38e7f5ab613117634d0c439d6b6?taid=64bee0cde6315400010b8821&utm_campaign=TrueAnthem&utm_medium=AP&utm_source=Twitter

The justice department has filed a lawsuit against Texas for installing a system of buoy barriers in the rio grande after Mexico demanded the federal government make Texas remove them, and Greg Abbott published a response to the justice department’s demand telling them to pound sand. This comes on the heels of a news cycle about Texas border security repelling migrants into the Rio grande and using razor wire, which in turn seems to have happened once the mass bussing of migrants to places outside of Texas became old news.

Politically, Abbott is strongly incentivized to refuse to comply, even if it’s illegal, and it’s worth noting that he’s literally a constitutional lawyer and knows that he’s not going to win the lawsuit. So the most likely outcome is this getting dragged out in courts until federal agents remove the barriers themselves.

The other major culture war angle here is that the state’s defense is a previous declaration of invasion giving them the right to secure their own border, even in contravention of federal policy. This argument does not seem likely to hold up in court; it’s based on far-right legal theorizing that gained traction for political reasons. As Abbott is a thoroughly establishment creature it’s an interesting development in itself and likely portends that the Texas center-right(which, despite what the media will tell you, is solidly in control of the Texas state government) will choose to build a coalition with the far right rather than the moderate left in the future, and it probably has broader implications/lessons for far-right movements in wealthy first world countries seeking political influence.

I've seen a bunch of hot air on this topic but I haven't seen anywhere list all of the federal laws that were allegedly broken. Seems like this whole discussion is meaningless when the actual issue at hand is handwaved away.

Edit: Also even if Texas loses, I think they still win by doing this. They have sovereign immunity so will face no consequences, and the barrier is still there until the case slowly moves through the courts. I'd like to see more of this, the states can do anything they want except in the direct presence of an armed federal officer.

I haven't seen anywhere list all of the federal laws that were allegedly broken.

The most obvious is 33 U.S. Code § 403

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 creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction, is hereby prohibited. The continuance of any such obstruction, except bridges, piers, docks, and wharves, and similar structures erected for business purposes, whether heretofore or hereafter created, shall constitute an offense and each week’s continuance of any such obstruction shall be deemed a separate offense. Every person and every corporation which shall be guilty of creating or continuing any such unlawful obstruction in this act mentioned, or who shall violate the provisions of the last four preceding sections of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court, the creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any district court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney-General of the United States

The Treaty says that local authorities cannot construct things that are banned by article 3 of the Treaty of 1884, but that says that you can't make jetties, piers, or constructions that deflect the current. Buoys are not covered by this in the plain reading. Is there another clause that you were referring to?

Article VII of the Treaty of Guadalupe Hidalgo (1848) forbids some things on "The river Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico." This might cover it.

the navigation of the Gila and the Bravo below said boundary 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.

I think the question here is what a "work" means? Normally floating buoys would not count but I think an argument could be made that convinced me that this was impeding vessels.

I agree that their purpose is to block people. It does seem strange that there is a treaty that says you can't try to impede people crossing the border. I wonder if navigable normally refers to crossing a river rather than traveling down it lengthways.

Here is the legal US definition of navigable waterway: https://www.ecfr.gov/current/title-33/chapter-II/part-329

The US definition of navigable may not be that relevant as this is a treaty, not a US law. I don't know anything about how terms in treaties are interpreted, but I imagine that the treatment must be symmetric, so if US law matters, then so must Mexican law.

I also don't know enough to tell if the Rio Grande is navigable. Allegedly it is "too thick to drink and too thin to plow."

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