In order to stem the endless tide of migrants attempting to cross the Rio Grande into Texas, Governor Greg Abbott has begun installing a marine barrier. It consists of a moveable 1,000- foot string of four-foot-high buoys held together by steel cable. Texas authorities plan to relocate the barrier, as necessary, in order to respond to migrant surges.
Predictably, Abbott’s announcement has been met with strident criticism by illegal alien advocates and one local business owner has filed a lawsuit seeking to enjoin Abbott’s deployment of the “water wall.” Jessie Fuentes, who owns Epi’s Canoe & Kayak Team, LLC claims that his business will suffer “imminent and irreparable harm” because the barrier will prohibit him from conducting canoe and kayak tours. In addition, the plaintiff claims that Texas is misapplying the Texas Disaster Act of 1975, the statutory basis for Abbott’s action.
Over the years, lawsuits over immigration policies have become increasingly bizarre. In 1972, in Kliendienst v. Mandel, the plaintiffs claimed that the exclusion of a communist agitator interfered with the free speech rights of Americans to receive information from him. In 2010, in Flores-Villar v. United States the plaintiff argued that the rules governing the derivation of U.S. citizenship through parents discriminated on the basis of gender and age. And, more recently, in Trump v. Hawaii, the plaintiffs argued that presidential action to prohibit terrorists from entering the U.S. was a “Muslim ban” that interfered with their rights to religious freedom. The plaintiffs in all of these matters ultimately lost their cases.
However, the Epi’s Canoe & Kayak lawsuit seems particularly bizarre. To begin with, judging by its two websites the outfitter doesn’t seem to be doing very much business. One website shows events that took place in 2019 and 2022, the other shows a single event that took place in September of 2022.
Why doesn’t Epi’s seem to have done any business lately? Well, that may be due to the fact that ever since Joe Biden took office, the border has devolved into complete chaos. Frankly, it’s difficult to see how any tour operator could safely take clients on Rio Grande float trips, given the number of migrants and smugglers who have overtaken the area.
In September of 2022, deaths along the U.S.-Mexico border hit a record high, primarily due to migrant drownings. The statistics for this year are shaping up to be just as bad: In June of 2023, Border Patrol agents rescued a mother and her son who had become trapped in the middle of the Rio Grande near the Anzalduas Dam and almost drowned. And in the three days preceding the July 4 2023 holiday, four migrants, including an infant drowned in the Rio Grande. If that sounds to you like a less than ideal environment for pleasant paddling excursions, your instincts would be correct.
The other aspect of the Epi’s lawsuit that is striking is the complete and total arrogance that underlies it. Both migrants and Texans are dying at alarming rates. Migrants, as they attempt to traverse the murky waters that separate them from the United States. Texans as they attempt to rescue border jumpers in distress. A stable line of large buoys anchored to the river’s floor might actually increase the migrant survival rate, by giving sinking swimmers something stable to latch onto until rescuers could be summoned. As such, it’s hard to see how Epi’s limited business interests could trump the public safety and national security interests protected by Governor Abbott’s “water wall.”
In reality, however, this lawsuit has little to do with the claimed interference with Epi’s business interests or alleged misapplication of the Texas Disaster Act of 1975. The ultimate objective is to portray Governor Abbott as a racist and a xenophobe – rather than a political leader taking reasonable measures to protect the citizens who reside in his state. Carlos Flores, the lawyer representing Epi’s blatantly admitted, “Our lawsuit seeks to protect communities on the Texas-Mexico border from Governor Abbott’s misleading politics.” He further stated that the floating barriers, “represent a hateful policy that intends to create the impression that Mexicans, immigrants, and Mexican Americans … are dangerous.”
Those arguments are as dopey as they are deceptive. Migrants from all over the world – Asia, Africa, the Middle East – are entering the U.S. through Mexico. No sane person would argue that floating buoys somehow have a disparate and discriminatory impact on Mexicans.
Furthermore, immigration restrictions are inherently discriminatory. They permissibly discriminate on the basis of the distinct legal status held by citizens and foreign nationals. This is not different than distinguishing between adults and children; married and unmarried persons; licensed drivers and those without a license; property owners and trespassers, etc. In fact, such distinctions in legal status are essential to defining and protecting the rights that people who live in a free society treasure.
Unfortunately, we live in an age where activist judges erroneously place the needs of the few (Epi’s interest in making money by conducting canoe and kayak tours) over those of the many (Governor Abbott’s interest in protecting both migrants and the citizens of Texas). But, with any luck, the courts will see through Epi’s lawsuit and summarily dismiss it. In the end, none of the criticisms of Abbott’s buoy barrier hold any water.
Matt O’Brien is the director investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.
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