The Biden administration heads to court Tuesday to argue against the state of Texas. The Department of Justice case centers on Texas Gov. Greg Abbott’s installation of buoys in the Rio Grande — along the U.S.-Mexico border. 

The roughly 1,000-feet of giant orange buoys are held together by sharp metal pieces and surrounded by barbed wire. 

The Biden administration argues the structure violates the Rivers and Harbors Act, which requires a permit from the Army Corps of Engineers to build in a navigable river.

Aaron Reichlin-Melnick with the American Immigration Council.

"However, Texas's response is to say, well, first off, we don't think that the Rio Grande is navigable, but secondly, they say we're being invaded and that gives us a right to ignore federal law and build this structure anyway," he said.

He says states have long tried — and failed — to argue that border migration constitutes an invasion.

Former Arizona Gov. Doug Ducey made the argument in a suit last year over a wall of shipping containers placed illegally on federal land in Yuma.

The suit was one of several filed over the state-funded shipping container walls, which went up in parts of Cochise and Yuma counties. But legal action was halted after Gov. Katie Hobbs took office and Arizona settled the suits.