Navigating the Border

Eschewing exotic constitutional issues about a state’s rights to engage in military activity, the Fifth Circuit affirmed a preliminary injunction requiring Texas to remove an obstacle from the Rio Grande, citing the federal government’s exclusive authority as to navigable waters. United States v. Abbott, No. 23-50632 (Dec. 1, 2023). A dissent had a different view; some serious consideration of en banc review is likely.