‘You’re lucky that I’m even letting you say anything here’: Bizarre hearing after Texas solicitor general raises red flag over judge remarks in border barrier case

A kayaker walks past large buoys being used as a floating border barrier on the Rio Grande, Aug. 1, 2023, in Eagle Pass, Texas (AP Photo/Eric Gay).

A kayaker walks past large buoys being used as a floating border barrier on the Rio Grande, Aug. 1, 2023, in Eagle Pass, Texas (AP Photo/Eric Gay).

An ongoing dispute between Texas and the federal government over a buoy barrier currently floating in the Rio Grande has taken a turn for the bizarre after an unusual and tense hearing unfolded this week in Austin that led to a strange confrontation between a judge who previously handled the case and, oddly, the Texas solicitor general — who did not.

The strange sequence of events in the case of United States v. Abbott started in July after the U.S. Court of Appeals for the Fifth Circuit issued an en banc ruling stating that Texas was allowed to keep a floating 1,000-foot barrier in place along a portion of the Rio Grande in Eagle Pass, Texas. The state argued it was necessary to stave off the flow of illegal immigration or drug smuggling. The U.S. government, which first sued Texas Gov. Greg Abbott in 2023 to remove the barriers, argued they were a violation of a federal law known as the River and Harbors Act of 1899.

The Fifth Circuit’s 11-7 ruling overturned a lower court ruling that sided with the federal government. The appeals court concluded that the specific stretch of the river at issue was not covered by that law because those waters aren’t technically navigable. Whether what is happening along the U.S.-Mexico border separately qualifies as an “invasion” that necessitates the barriers as Texas argues, however, was not addressed in the Fifth Circuit’s ruling to vacate an injunction issued by Senior U.S. District Judge David Ezra, an appointee of former President Ronald Reagan.

U.S. Circuit Judge Don R. Willett wrote the Fifth Circuit’s majority opinion, which recapped the path of the case so far.

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