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The future of Texas’ migrant blocking buoys may depend on whether the Rio Grande is “navigable.”

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The future of Texas’ migrant blocking buoys may depend on whether the Rio Grande is “navigable.”

NEW ORLEANS (AP) — The future of a barrier of giant buoys that Texas Gov. Greg Abbot placed in the Rio Grande last year to deter migrant traffic may depend on whether a rocky, shallow stretch of the border river can be considered “navigable” and whether immigration sometimes constitutes a hostile invasion.

The 17-member 5th U.S. Circuit Court of Appeals heard arguments Wednesday on the issues in New Orleans, the latest courtroom debate in multiple legal disputes over border control between the Democratic president Joe Biden and the Republican governor. The judges did not indicate when they would rule.

Part of the hearing focused on Texas’ claim that the barrier is constitutionally permitted as a means of defending against invasion.

“Are you saying that federal law trumps state constitutional law?” Judge Edith Jones asked Justice Department attorney Michael Gray. She later added, “Under what circumstances can the United States thwart that attempt at self-defense?”

In response to questions from Jones and Judge James Ho, Gray argued that a governor cannot circumvent federal law by simply claiming an invasion. “Their argument is that once they say invasion, ‘we can do anything we want, as long as we want.’ We don’t think that’s right,” Gray said.

But much of the hearing focused on whether the government was correct in saying that the Rio Grande as a navigable waterway is subject to federal regulations.

Texas says the stretch of river is rocky and shallow – describing it as “ankle deep” in one filing.

“For most of its length and much of its storied history, the Rio Grande has been little more than a creek with an excellent publicist,” said Lanora Pettit of the Texas attorney general.

The Biden administration has pointed to the area’s past ferry traffic, use of the area by U.S. Coast Guard and International Boundary and Water Commission vessels and the possibility of future projects to make the route more suitable for commercial traffic.

The state installed the orange, wrecking ball-sized buoys last July. The barrier extends approximately 1,000 feet (304 meters) along the international border with Mexico, between the Texas border town of Eagle Pass and Piedras Negras, Coahuila.

In December, a divided panel of the 5th U.S. Circuit Court of Appeals had sided with a federal district judge in Texas, who said the shackles should be moved. But the panel’s 2-1 ruling was vacated in January when a majority of the conservative-dominated court’s 17 active justices voted to rehear the case. An 18th judge who is a part-time senior and was part of the three-member panel also participated in the full bench on Wednesday.

The Biden administration is also fighting for the right to cut razor-wire fencing on the border and for access to a city park on the border that the state has fenced off.

And a decision awaits from a 5th Circuit panel on whether Texas should be allowed to enforce a law that allows any Texas law enforcement officer to arrest people suspected of entering the country illegally.

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