HELENA – Montana Attorney General Austin Knudsen joined a coalition of 15 state attorneys general in urging the US Court of Appeals for the Fifth Circuit to reverse a district court’s ruling ordering Texas to remove a buoy barrier along the Texas-Mexico border meant to keep illegal immigrants from crossing into the United States.

While the Biden administration’s failure to secure the southern border continues to wreak havoc on Montana and the rest of the nation, Texas Governor Greg Abbott took advantage of the state’s constitutional right to self-defense and installed the barriers on a small section of the Rio Grande River to keep the violence, drugs, and other criminal activity from flooding across the southern border that the Biden administration has left wide open.

The Biden administration, in a continuance of its disastrous border policies, responded with a lawsuit and subsequently a district court judge ordered Texas officials to remove the barriers and prohibited them from installing anymore.

“The current administration has not only failed to secure the border, but also has willfully enacted policies that have encouraged illegal immigration,” the attorneys general wrote in an amicus brief. “Texas’s response in the face of this crisis is logical and proportionate: building a barrier to prevent illegal migration. The federal government’s response—a suit premised on a federal law dealing generally with the navigability of the nation’s waterways—is inexplicable. The district court’s injunction against Texas is simply incorrect.”

In their friend of the court brief, the attorneys general argue that the states have a constitutional right to self-defense and may act to defend their borders, which is what Texas Governor Greg Abbott was doing when he installed the buoy barrier in the Rio Grande River. The Constitution states in plain terms that a state that is “actually invaded” or “in imminent Danger as will not admit of delay,” is able to take emergency measures to defend itself.

“It would be strange indeed if the Constitution permitted the States to engage in preemptive armed conflict to protect themselves, but not to build a buoy barrier to accomplish the same goal,” the attorneys general wrote.

In its ruling, the district court relied on the Rivers and Harbors Act to issue the injunction. However, the act does not limit the state’s ability to defend itself from the invasion of illegal immigrants on the southern border, as the Biden administration alleges. It prohibits the obstruction of “’the navigable capacity of any of the waters of the United States’ and the construction of structures in navigable waters absent permission from the U.S. Army Corps of Engineers.”

The district court failed to address Texas’ claims that there is an invasion on the southern border. Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border in fiscal year 2021. Then increased to 2.4 million in 2022 and exceeded 1.9 million through July 2023. Texas noted in one motion, “the number [of aliens crossing the border] detected but neither found nor apprehended increased 300% in the past four years.”

The southern border is also a pathway for trafficking illegal drugs – like fentanyl – that are killing Americans and Montanans. Last year, Montana’s State Crime Lab reported 77 overdose deaths involving fentanyl – an increase of 1,750 percent from 2017 when there were just four. According to preliminary data, there were 48 during the first half of 2023. Additionally, anti-drug task forces in Montana have already seized more fentanyl in the first half of the year than they did in 2022.

Texas’ decision is well within the state’s right to self-defense and the Rivers and Harbors Act makes no clear statement that the “law impairs or disables Texas’s ability to engage in self-defense.”

Attorney General Knudsen joined attorneys general from Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Missouri, North Dakota, Oklahoma, Utah, and Virginia in submitting the Kansas-led brief.

Click here to read the brief.

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