Biden DOJ secures likely delay in Texas border buoy trial

A trial over whether Texas can place floating barriers along the Rio Grande to deter migrants from crossing the border illegally likely will be delayed until the fall, thanks to an unopposed motion from the Biden administration.

The Justice Department on Thursday filed its unopposed motion to the U.S. District Court for the Western District of Texas before Judge David Ezra, who was slated to preside over a trial on the merits next week of the “marine barrier” dispute between Texas and the Biden administration. The DOJ seeks a 60-day delay after an appeals court allowed the Lone Star State’s floating barrier along the U.S.-Mexico border to remain in place pending further litigation, according to court records.

The trial delay was requested to “consider appropriate next steps in the district court proceedings in light of the opinion (including necessary consultation with client agencies), and thereafter advise Defendants and the Court on how the United States proposes to proceed,” U.S. attorneys wrote in response to the appeals court’s recent decision to let Texas keep its barrier.

In an en banc decision made by 17 judges, the U.S. Court of Appeals for the 5th Circuit ruled late Tuesday that the 1,000-foot aquatic buoy wall located at the U.S.-Mexico border could remain ahead of the litigation over the merits of the case. Seven dissenting judges argued the federal government was likely to succeed on the merits of its case, disagreeing with the other 10 in the majority who said Texas was more likely to prevail.

Litigation over the dispute began after the DOJ sued Gov. Greg Abbott (R-TX) in late July 2023 and ordered the removal of the buoys. In short, the federal government claims in its lawsuit that Texas is violating U.S. environmental law, which requires states to gain federal approval to build obstructions on navigable waters like the Rio Grande.

House Republicans have backed Abbott and have blamed President Joe Biden for the 9 million migrants who have been encountered attempting to enter the U.S. illegally since he took office.

Now, the federal government is seeking to start the trial in Ezra’s court by Oct. 7, “or the next available date and time thereafter.”

The request is likely to be granted, given that Texas has agreed not to oppose the federal government’s motion.