Texas Republicans Cite Noah’s Ark in Lawsuit Over State’s Right to Wage War With Mexico

Texas Republicans have no good argument to justify the state’s construction of buoys separated by circular saw blades in the Rio Grande. This dangerous stunt is a clear violation of federal law, which grants the federal government—not Texas—control over the river. So GOP lawmakers and lawyers have fallen back on a series of claims that run from disturbing to comical. They say the Rio Grande, which law enforcement navigates every day, is not “navigable.” They assert that Texas is under “invasion” by “thousands of aliens” that warrants the use of force to repel migrants, and potentially merits the invasion of Mexico by state law enforcement. And they fall back on the story of Noah’s Ark to bolster their defense. Yes, the tale of the divine deluge has been invoked in support of a death trap meant to turn back migrants fleeing violence and poverty. Just as the Bible intended.

The buoy border, a project of Republican Gov. Greg Abbott, is part of Operation Lone Star, the state’s broader crackdown on unauthorized migration. This operation has been a multibillion-dollar failure with no apparent impact on illegal crossings. State troops and National Guardsmen stationed at the border reportedly have little to do, and suicide is rising in their ranks at an alarming rate. In July, a whistleblower reported that Guardsmen were instructed to line the river with razor wire and push migrants who got caught in it, including children and pregnant women, back into the water. Abbott added the buoys—which use serrated metal plates to pierce the flesh of anyone who tries to pass them—as a direct affront to the Biden administration, which has jurisdiction over the river. The Department of Justice promptly sued, citing the Rivers and Harbors Appropriation Act of 1899, which prohibits “the building” of any “structure” or “obstruction” in a “navigable river” without permission from the federal government.

Abbott’s lawyers, aided by a group of mostly Texan GOP congressmen, filed their response on Wednesday, and it is, to put it mildly, not the work of serious people. Their defense rests on two basic arguments, one amusingly asinine, the other deeply disturbing. First, Texas Republicans argue that the portion of the Rio Grande is not a “navigable river” and that, even if it were, the buoys don’t interfere with navigation; either way, they say, the structure does not fall under the Rivers and Harbors Appropriation Act. Unfortunately for Texas, the U.S. Coast Guard has explicitly found that this entire stretch of the Rio Grande is navigable, as has the U.S. Army Corps of Engineers. This fact is supported by the reality that law enforcement vessels can and do navigate this portion of the river. Moreover, a federal study found that the buoys do interfere with navigation, contrary to Texas’ baseless assertion. But that’s actually irrelevant, because the law prohibits all unapproved “structures” in the Rio Grande, regardless of whether they interfere with navigation.

Faced with these facts, the congressmen defending the buoys pivot to the Bible. In their brief, they take issue with the Justice Department’s claim that the river is still legally “navigable,” noting that at certain points it becomes unnavigable because of changing depths, currents, dams, or other factors. The DOJ’s “theory” that a river is still “navigable” even when some parts become unnavigable, they declare, “would lead to absurd” outcomes because “most of Texas was once covered by seas.” But don’t just trust the geological record; also consider “the Book of Genesis,” which, taken “literally,” says “the entire world was once navigable by boats large enough to carry significant amounts of livestock.” For support, the brief cites Genesis 7:17–20, which tells the story of Noah’s Ark. Checkmate, libs.

This resort to young-earth creationism should tip off the reader that Texas has no plausible legal argument in this case. And still the worst is yet to come. After wrapping up this water business, the state takes a big swing: Unauthorized border crossings, the state’s lawyers write, is tantamount to an “invasion,” and Texas “has the constitutional power to repel that invasion” to “protect the health, safety, morals, and general welfare of its citizens.” They cite a provision of the U.S. Constitution that bars states from “engag[ing] in war” without congressional approval “unless actually invaded.” And, they say, the flow of migrants into Texas, coupled with cartel activity at the border, triggers this power to wage war over federal objections.

What we see here is a classic example of popular constitutionalism in the guise of originalism: an argument crafted by politicians to serve their own political interests that has transformed into a putatively legal argument propped up (however feebly) by claims about the Framers’ intent. Many Republicans, including former President Donald Trump, and Florida Gov. Ron DeSantis, describe migration at the southern border as an “invasion,” and have started talking about going to war with Mexico to stop the cartels. (The moderate GOP position is to bomb Mexico instead of launching a full-scale assault.) Everyone knows that Biden is not going to do any of this. So Republicans are toying with the idea of states going it alone. In 2022, for instance, former Arizona Republican Gov. Doug Ducey announced that Arizona could—and, if necessary, would—wage war on Mexican cartels. (Ducey’s Democratic successor, Gov. Katie Hobbs, has shown no interest in moving forward with this suggestion.)

Abbott wants to pick up the baton and carry it to the finish line by moving these violent fantasies into the realm of possibility. His lawyers say that courts must not side with the Biden administration, and against the buoy border, because doing so would interfere with its power to wage war against unlawful immigration, including (but not limited to) the cartels. There is no principle limiting such a war to Texas’ own land; the state’s argument would authorize forces to fight cartels in Mexico over strenuous protest from the United States’ commander in chief. To be clear, Abbott’s theory has no basis in law or history; it would also lead to horrific consequences far beyond the carnage of armed conflict, including the widespread suspension of habeas corpus and other (real) constitutional rights. Perhaps that’s a bonus for the governor, but it should give the judiciary pause.

Luckily, the dispute has been assigned to Judge David Ezra, a Ronald Reagan appointee who has proven himself to be a reasonable jurist. The case is in good hands, and Ezra can almost certainly be trusted to shoot down Abbott’s minacious warmongering and force the removal of his deadly buoys. Anything could happen at the lawless, far-right U.S. Court of Appeals for the 5^th Circuit, but if its extremists hand Texas a victory, the Supreme Court may feel obliged to step in. One key purpose of the Constitution was to transfer war powers from the states to the federal government so that the nation could present a unified front to its enemies. This Supreme Court probably doesn’t want to be the one that gives 50 different states the green light to start 50 different wars while the commander in chief watches helplessly from the sidelines.