DOJ’s Arguments Are as Shallow as Rio Grande Where Buoys Stand

August 23, 2023

Carine Martinez

Carine Martinez joined the Foundation in 2016 and is campaign director of Secure and Sovereign Texas and has been director of research and publications since 2021.

As campaign director, she oversees the Foundation’s initiative to look for additional and innovative policy solutions for the state of Texas to help secure its southern border.

As director of research and publications, she oversees and manages the publication schedules for all policy areas the Foundation is working on and is responsible for editing research publications.

Carine also conducted research on Texas–Mexico paradiplomacy, as well as, earlier on, on the effects on taxpayers and consumers of government programs that grant special privileges to certain businesses in the form of subsidies, tax credits, regulatory advantages, or other favors.

She is the co-editor of the Foundation’s Policymaker’s Guide to Corporate Welfare and is the author of several research publications, notably on film incentives, the hotel occupancy tax, and the three-tier system of alcohol distribution. She testified on these issues before the Texas Legislature during its 85th and 86th regular sessions. She was published in several newspapers including the Austin American-Statesman, The Hill, and Forbes.

Carine began working in public policy as a policy intern at the Foundation in 2014. She later worked as a policy analyst for Texas Action during the 84th Legislature and then spent a year in Washington, D.C., working as a research associate for the Charles Koch Institute.

She holds a bachelor’s degree in international business administration (completed in English, French, and Spanish) and a master’s degree in American studies from the Sorbonne in Paris, France.

Carine is originally from Paris, France, but happily moved to the United States in 2011 and finally to Texas in 2013. She became an American citizen in 2019.

The preliminary injunction hearing in the case filed by the U.S. Department of Justice against Gov. Abbott and the state of Texas for the removal of the 1,000-foot buoy barrier took place on Tuesday, August 22.

The DOJ alleged that the state of Texas, in violation of the Rivers and Harbors Act (RHA), built a structure obstructing the navigable capacity of the river and did not obtain authorization to do so. However, to be in violation under the RHA, the waters in question need to be navigable waters, meaning they are or could be used for commercial navigation between states and/or a foreign country—that’s when the federal government has jurisdiction.

As for any crime the government accuses a defendant of, the burden of demonstrating the evidence that the crime has been committed is on the government—here, the DOJ. However, the first DOJ witness, an employee of the U.S. Army Corps of Engineers, failed to convincingly address whether the part of the Rio Grande where the buoys were installed was actually and currently navigable.

The first witness, not an engineer, admitted that his determination of navigability was based on a list, which is itself based on reports and findings dating back from the ’70sand ’40s, respectively. Once navigable, always navigable seemed to be the argument the federal government was making. While such a conclusion may sound preposterous (are dried-up rivers navigable?), it would give the federal government overreaching power—and set a dangerous precedent.

The DOJ’s second witness, a U.S.-Mexico border coordinator for the State Department, was led by the DOJ’s examination to insist that the barrier was the cause of deteriorating diplomatic relations between Mexico and the U.S. The State Department employee listed the many diplomatic and public complaints that Mexico made stating that “this is a major concern for Mexico.” She added that, in turn, the concern of the State Department was that Mexico will not remain a partner on other issues. Against the everyday evidence that Texans face, the witness stated that the U.S. and Mexico were collaborating on security and migration management, among other areas. Another concern of the U.S. is that Mexico might not fulfill its water obligations toward Texas—and the barrier was impeding the U.S. efforts to have Mexico comply.

Let’s pause and look at this second argument more closely. The DOJ is insisting that a device—the buoy barrier—that the state of Texas had to place on the river to deter illegal entries into the state and country by migrants smuggled by Mexican cartels the Mexican government is known to collude with, be removed because, as the second witness put it, the Mexican government is sensitive about its sovereignty. So much for Texas’ sovereignty.

During his cross-examination of the State Department witness, the Texas Attorney General’s counsel asked questions related to the flow of illegal immigrants. He was interrupted by the Judge Ezra who insisted the navigability and obstruction of the river were the reasons for the lawsuit—and he would not tackle the question of Article I Section 10, or any political questions.

Judge Ezra requested the closing arguments be written and submitted by the end of Friday. He added he would make as prompt a decision as possible. Either way, the ruling is likely to be appealed.

Carine Martinez

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