Abbott lauded the ruling, saying, “The Federal Court of Appeals for the Fifth Circuit just ruled that Texas can KEEP these buoys in the water securing our border. Biden tried to remove them. I fought to keep them in the water. That is exactly where they will stay. JUSTICE!!!!”
Three judges issued separate opinions concurring with Willett: Chief Judge Priscilla Richman, Andrew Oldham and James Cho.
Circuit Judge James Ho partially concurred and partially dissented, agreeing that the preliminary injunction “must be reversed. But I get to that place through a different path,” he said, adding that he would have instructed the district court to dismiss the case for lack of jurisdiction.
He argued Texas’ right to install the buoys was a constitutional one: a sovereign state has the right to protect its own border. He made similar arguments to those of 55 Texas judges who declared Texas was being invaded.
“A sovereign isn’t a sovereign if it can’t defend itself against invasion,” Ho wrote. “Presidents throughout history have vigorously defended their right to protect the Nation. And the States did not forfeit this sovereign prerogative when they joined the Union. Indeed, the Constitution is even more explicit when it comes to the States. Presidents routinely insist that their power to repel invasion is implied by certain clauses. But Article I, section 10 is explicit that States have the right to ‘engage in War’ if ‘actually invaded,’ ‘without the Consent of Congress.’”
Seven dissenting judges argued the federal government was likely to succeed on the merits of its case, disagreeing with the majority who said it wasn’t.
Circuit Judge Stephen Higginson wrote one dissent. Circuit Judge Dana Douglas wrote another.
The ruling comes after several twists and turns in the case and as extensive misreporting about it continues. Many claimed, and continue to claim, that Texas was ordered to remove the buoys altogether when the district court only ordered they be moved closer to Texas’ riverbank, The Center Square first reported.
