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DOJ Sues Texas To Continue Private Transport of Illegal Migrants Despite COVID Risks

DOJ Sues Texas To Continue Private Transport of Illegal Migrants Despite COVID Risks

Texas Gov. Abbott: “The Biden Administration has created a constitutional crisis between the federal government and the State of Texas. This stems from the Biden Administration’s refusal to enforce immigration laws and allow illegal immigrants with COVID-19 to enter our country.”

How much does the Biden administration love the illegal migration taking place at the southern border? Biden has encouraged people to come here illegally, and to send their children here illegally in dangerous conditions, by offering a de facto sanctuary nation. So important is protecting this migration to the Biden administration that it trumps the fight against the coronavirus pandemic.

Texas issued an order prohibiting the transport of illegal migrants, other than by local, state, or federal law enforcement, in light of the surge of coronavirus cases along the border. The Order provided, in part:


WHEREAS, in a so-called “Title 42 order.” President Trump took action to protect Americans from COVID-l9 by rapidly expelling migrants who could carry the diseaseacross the border: and
WHEREAS, the Biden Administration has kept in place the Title 42 order, and for good reason: and
WHEREAS, despite the emergence of the highLy contagious delta variant of COVID- 19 and the fact that vaccination rates are lower in the countries that newly admitted migrants come from and pass through, President Biden has thwarted the Title 42 order’s effect by admitting into the United States and the State of Texas, migrants who are testing positive for COVID-19; and
WHEREAS, President Biden’s failure to enforce the Title 42 order, combined with his refusal to enforce the immigration laws enacted by Congress, is having a predictable and potentially catastrophic effect on public health in Texas; and
WHEREAS, to take just one data point, reports show that U.S. Customs and Border Protection (CBP) has recently seen a 900 percent increase in the number of migrant detainees who tested positive for COVID-19 in the Rio Grande Valley: and


NOW. THEREFORE. I. Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately:

1. No person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants who have been detained by CBP for crossing the border illegally or who would have been subject to expulsion under the Title 42 order.

2. The Texas Department of Public Safety (DPS) is directed to stop any vehicle upon reasonable suspicion of a violation of paragraph 1, and to reroute such a vehicle back to its point of origin or a port of entry if a violation is confirmed.

3. DPS is authorized to impound a vehicle that is being used to transport migrants in violation of paragraph I, or that refuses to be rerouted in violation of paragraph 2.

The Order tried to protect the public by preventing non-govermental organizations from transporting illegal migrants, but the legal problem is that the federal government controls enforcement of immigration laws (or non-enforcement, in Biden’s case).

But states have a right to protect public health. So what we have here is a clash of civilizations, and DOJ has sued. You can read the Complaint, Motion for TRO and Affidavits, and the Judge’s Order setting a Court appearance for Monday, August 2:

USA v. Texas – COVID Migrant Transport Case – Complaint

USA v. Texas – COVID Migrant Transport Case – Motion For TRO and Affidavits

USA v. Texas – COVID Migrant Transport Case – Order Setting Hearing on August 2, 2021

From the Complaint:


1. No State may obstruct the Federal Government in the discharge of its constitutional  responsibilities. But on July 28, 2021, the Governor of the State of Texas issued an executive order purporting—“effective immediately”—to restrict who may lawfully provide ground transportation in Texas to certain groups of migrants who have been detained by the Federal Government pursuant to U.S. immigration authorities or are otherwise subject to certain Federal authorities.

2. The United States brings this suit to challenge the executive order, attached hereto as Exhibit A, which is described as “executive order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster” (executive order).

3. The executive order violates the Supremacy Clause and causes injury to the United States and to individuals whom the United States is charged to protect, jeopardizing the health and safety of noncitizens in federal custody, risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19 in our communities. The executive order obstructs the Federal Government’s arrangements with nongovernmental partners and directly interferes with the administration of federal immigration law.

4. This Court should declare the executive order to be invalid and enjoin its enforcement.

Abbott issued a statement responding to the lawsuit:

“The Biden Administration has created a constitutional crisis between the federal government and the State of Texas. This stems from the Biden Administration’s refusal to enforce immigration laws and allow illegal immigrants with COVID-19 to enter our country. As our communities are overrun and overwhelmed by the record-high influx of migrants, cartels and smugglers profit off the chaos. Not only that, but this crisis also extends beyond the border as deadly drugs like fentanyl infiltrate our communities.  This already dangerous situation continues to deteriorate as the Biden Administration knowingly imports COVID-19 into Texas from across the border—willfully exposing Texans and Americans alike. President Biden has a duty and a responsibility to protect and uphold our nation’s sovereignty, yet he has long-since abdicated his authority to do so.

“As the Governor of Texas, I have a responsibility to protect the people of Texas—a responsibility that grows more urgent by the day while the Biden Administration sits on the sidelines. I take very seriously my duties and responsibilities as the Governor of the State of Texas. I have the authority, and duty, under the constitutions of the United States and of Texas to protect Texans and our nation. I also have the authority under long-established emergency response laws to control the movement of people to better contain the spread of a disaster, such as those known to have COVID-19. My duty remains to the people of Texas, and I have no intention of abdicating that.

“Until President Biden and his Administration do their jobs to enforce the laws of our nation and protect Americans, the State of Texas will continue to step up to protect our communities and uphold the rule of law.”

Abbott also sent a letter that provided, among other things:

There are several actions the Biden Administration can take to avert a constitutional showdown while also addressing the public health concerns that my Executive Order seeks to achieve.

First, the Administration can ensure that any unauthorized migrants it allows to enter the United States remain only on federally owned or operated land. Already, the federal government is operating multiple migrant facilities along the border, presumably in ways that minimize or eliminate the potential for migrants infected with COVID-19 to transmit the disease to Texans. The federal government has the resources and capability to house those migrants while minimizing the transportation of infected migrants into Texas cities and towns.

Alternatively, the Biden Administration could simply enforce the existing federal immigration laws and stop admitting migrants who are not authorized by Congress to be admitted. That would substantially reduce the importation of COVID-19 while also fulfilling the federal government’s role to faithfully execute the laws of the United States.

My office remains committed to working with you and the Department of Justice to ensure that we achieve the twin goals of applying the laws of the United States and of this state, while also preventing the knowing importation of COVID-19 into our communities.

These presumably are the arguments that will be made when Texas AG Paxton files responsive papers: Yes, the feds have control of immigration, but federal non-enforcement of federal law is creating a health crisis. States have the power to protect public health in a pandemic. And Texas, the argument would go, is not regulating immigration, it’s regulating public health, and there is no infringement on federal immigration because Texas itself is not deporting people.

As outrageous as Biden’s malfeasance is, Texas has an uphill legal fight.


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henrybowman | July 31, 2021 at 9:28 pm

I love the photo. What an iconic image: the crystal prison.
So evocative.
Magneto. Raymond Reddington. Zod.
It just screams “existential danger within.”

Abbott is correct here, and AG Garland’s response makes that crystal clear. The Biden admin WANTS Wu-Flu-infected illegal aliens dispersed throughout the “red” U.S. That’s why they are being “secretly” (i.e. without notifying state or local authorities) dumped in red states.

Gee, how does dumping a bunch of illegal aliens swimming in WuFlu affect the “cases” reported in the dumping grounds? This is disgusting. It’s shameful. It’s heartless. It’s unAmerican.

Couple this bizarre disconnect between letting tens of thousands of potentially WuFlu-infected illegal aliens swarm our interior every week and the insistence that the vaccines for WuFlu are so useless that we still need to mask, social distance, and lockdown, and I am just sickened by the whole transparent plot.

Today’s power-hungry commie Democrats–including their propagandist arm in the mainstream media and in Big Tech–are the enemy of the people, of the Constitution, of all that is good and right.

    gonzotx in reply to Fuzzy Slippers. | July 31, 2021 at 10:36 pm

    Yes, and I’m in what use to be a deep red conservative town next to Austin and I have seen many, many illegal families with 8-10 kids in tow

    The Biden admin WANTS Wu-Flu-infected illegal aliens dispersed throughout the “red” U.S. That’s why they are being “secretly” (i.e. without notifying state or local authorities) dumped in red states.

    Given the facts that’s the inescapable logical conclusion.

    The Dem-media complex will, of course, crank up the CRT propaganda, Orwellian rhetoric, and Marxist sophistry to try to convince the stupid and those not paying attention that only ‘white supremacists’ and ‘racists’ could come to that ‘conspiracy theory’ based conclusion.

    Ben Kent in reply to Fuzzy Slippers. | August 1, 2021 at 12:25 am


    Progressives are determined to undermine America until it is impossible to reverse it.

    1. Give 35 Million illegals the vote (via citizenship or not)

    2. Raise the Debt far beyond the levels that destroyed Greece’s economy.

    3. Promote social discord with race-baiting organizations and tactics like BLM.

    Our national security people have their head up their asses if they cannot see what’s happening and make every effort to stop it.

    JusticeDelivered in reply to Fuzzy Slippers. | August 1, 2021 at 8:18 pm

    This is domestic germ warfare, One question, can states round these people up and kick them out?

This might be an occasion where a CT makes a ruling that TX ignores. Hopefully the CT will keep that possibility in mind. Nothing would undermine the legitimacy of the CT as a State telling them to pound sand.

This is a pretty damn good set of facts for TX all things considered. The Feds have multiple off ramps here, one of which is choosing to follow federal immigration laws passed by Congress.

I am not convinced that the DoJ is going to be successful by in effect arguing that maladministration is preferable to and overrides public health concerns.

If they are successful then they have undercut much of the basis to support mandatory masks and vax. IMO they should offramp before they take an L or damage their public health arguments in future cases.

Texas is the ONLY state that demanded an “out” clause when it joined the Union

We are already an Independent Country
We need to be again
March them all back across the Rio !

    Milhouse in reply to gonzotx. | August 1, 2021 at 12:23 am

    (a) There was never any such clause.

    (b) Even if there had been such a clause in the original admission, and even if it had been valid, it would have become a nullity upon the state’s secession, and there was certainly no such clause in its readmission.

Even if Texas loses the publicity the case will generate is very bad news for The Regime and Comrade Biden.

How can Comrade Biden and his junta defend saying everyone should wear masks and get vaccinated because the Delta variant is out of control and at the same time allow hundreds of thousands of non-tested non-vaccinated non-tracked illegal aliens to enter the country and then travel and spread throughout the nation?

The Regime and the Dem-media complex thinks we’re all as dumb as rocks. And that they’re super smart. They’re wrong on both counts.

Texas needs to tell China Joe to go fuck himself.

In balancing these rights, there is right and wrong. Each encroaches on the other’s prerogatives. What the USG is doing (injecting sick people into the state) is wrong itself and can cause irreparable harm.

The DOJ has lost its way when it uses the law to defend underlying unlawful conduct for political purposes. The list of examples is growing. It ends in a police state.

The “Take Care” clause of the constitution compels the President to “take care that the laws be faithfully executed.” Eight incredibly clear words. What could be clearer? Well, if Texas wants to obtain a court order to enforce this, it must show a harm/controversy and show it has standing. Somehow, over the centuries that muddled those eight words. But, it doesn’t stop there. SCOTUS has ruled over the past several decades that Congress has somehow given the responsible agency the discretion to not enforce, even when it hasn’t.. It’s a ridiculous word game the Courts play, as the nation is invaded by 160 million legal and illegal immigrants and their U.S. born children, over the past 50 years. The situation today is similar to what England faced in the 15th century. It had to create a court of equity to provide remedies that the common court could no longer provide because of the same devolution of the law into ridiculous word games.

George_Kaplan | August 1, 2021 at 12:01 am

What happens if the DOJ win the initial case, Texas declares it will not comply due to its constitutional responsibility for the well being of Texans, and lodges an appeal to overturn the decision?

For that matter, what happens if Texas announces that all illegals are to be quarantined in either state funded concentrationinternment camps or federally funded equivalents until such time as the state can determine their disposition and threat to public health and safety?

Texas would not be enforcing border controls, and thus infringing on federal powers, it would merely be taking such actions as are required to protect itself in response to Washington DNC abnegating its responsibilities.

    Milhouse in reply to George_Kaplan. | August 1, 2021 at 12:25 am

    Anyone stopping a vehicle under the invalid executive order would be subject to federal arrest.

      George_Kaplan in reply to Milhouse. | August 1, 2021 at 2:01 am

      How so given they’d be obeying state law and refusal to do their jobs would be grounds for sacking?

      Note it wouldn’t simply be about stopping those in private transport, all those in the state would be deemed a health risk until otherwise proven.

        Milhouse in reply to George_Kaplan. | August 1, 2021 at 9:03 am

        They’d not be obeying state law. There is no such state law, and the executive order would have been struck down.

          Ratbert in reply to Milhouse. | August 1, 2021 at 10:28 pm

          There is no Federal law that allows the transport of diseased illegal aliens to infect unsuspecting citizens. Why do you hate the United States?

          Milhouse in reply to Milhouse. | August 1, 2021 at 11:12 pm

          You are a vicious animal and a poisonous presence here.

          There is no law, state or federal, that forbids such transport. All there is, is Abbott’s order, under his emergency powers. If the courts strike it down, then there will be nothing to authorize such arrests. And regardless of how the courts find, there is no probable cause that any given carload of foreigners is diseased.

      Juris Doctor in reply to Milhouse. | August 1, 2021 at 11:20 am

      Abbott’s EO is perfectly valid. Did you sleep through Con Law?

      CommoChief in reply to Milhouse. | August 1, 2021 at 11:41 am


      The real world that exists outside the CT might intrude in that. In your scenario you presume that TX LEO will allow themselves to be arrested by Fed agents. Suppose for a moment they don’t.

      What is to stop the State of TX from placing all Fed agents who attempted such an arrest into ‘protective custody’? Yes CT system, yes supremacy doctrine, yada yada.

      The danger is when the litigants decline to abide by a ruling. In that moment the disparity of force employed determines the immediate outcome.

      To be sure, there would be consequences after the fact. However if TX LEO decide to stop and detain a bus then nothing actually prevents them from doing so.

      IMO, the CT should keep in mind this possibility and temper their enthusiasm for decrees lest the consequences spin into a dark place. Everyone ignores that truth at their peril.

        Milhouse in reply to CommoChief. | August 1, 2021 at 11:15 pm

        What happens is that Garland sends in the entire FBI to arrest them, and if they resist then Biden sends in the Army.

          CommoChief in reply to Milhouse. | August 2, 2021 at 8:26 am


          Ok then what? Do other States stand idle? Does this spin further out of control? For that matter do the Citizens of TX stand by passively? That’s a very infantile and unserious response.

          There are real world risks and very high potential consequences for your cavalier response. Remind me how the cavalier attitude of Charles I worked out for him.

          The real world has a tendency to ignore legal niceties. When the stakes raise to unbearable levels even solid Citizens cast them aside.

      Lucifer Morningstar in reply to Milhouse. | August 1, 2021 at 2:16 pm

      Two words. Second Amendment. So the feds can try and arrest anyone they so wish. But I’m sure nobody is going to guarantee their safety in doing so.

      Bruce Hayden in reply to Milhouse. | August 1, 2021 at 3:32 pm

      The state then bails them out, supplies them with a defense attorney, and demands a jury trial. Jury the engages in jury nullification, in the spirit of the Alamo (see below), and where are the Feds then?

Josh Blackman, who usually knows what he’s talking about, <a href=";.seems to think the law is with Garland on this. But I’m not so sure.

It’s well-established that the states may not interfere with (though they need not assist) federal enforcement of immigration laws. It’s also well-established that they can’t compel the federal government to enforce them. It’s recently established that they can’t enforce those laws themselves without federal permission. But here it seems to me that Abbott is not trying to do any of the above. He’s simply proposing to enforce a state law, in a way that doesn’t interfere at all with federal enforcement of the laws, should the feds choose to do so; rather, it interferes with a federal policy of deliberately not enforcing those laws.

The order specifically exempts all federal law-enforcement officials. So it’s not interfering with them in any way. It interferes only with private entities to whom the feds have released these infiltrators, and who are engaged in implementing, not the law, but rather a federal policy of defying the law. So it seems to me the order ought to be valid as far as it goes.

The problem, it seems to me, is in enforcing it. How can a DPS agent form reasonable suspicion that a vehicle is in fact “providing ground transportation to a group of migrants who have been detained by CBP for crossing the border illegally or who would have been subject to expulsion under the Title 42 order”, other than by racial profiling?

    Milhouse in reply to Milhouse. | August 1, 2021 at 12:38 am

    Oops. That link went kablooie. Blackman’s article is here

    Juris Doctor in reply to Milhouse. | August 1, 2021 at 2:01 am

    Blackman knows what is is talking about roughly 40% of the time.

    Abbott’s order is fine. It does not grant or remove legal status or confer rights. Nor is there a penalty of removal for a violation of the order. Merrick Garland is full of hot air as usual. And to think this hyper partisan buffoon almost made it onto the high court.

      Yes, whatever one may think of Mitch McConnell, the Country owes him an enduring debt of gratitude for keep that fetid piece of shit from replacing Scalia.

    slagothar in reply to Milhouse. | August 1, 2021 at 11:08 am

    If it’s well established that states “the states may not interfere with (though they need not assist) federal enforcement of immigration laws. “, then what about “sanctuary cities”? I understand your further comment that they are not obligated to assist, but aren’t the policies of sanctuary cities (sneaking illegals out the back to avoid ICE, etc.) crossing the line?

      Milhouse in reply to slagothar. | August 1, 2021 at 11:32 pm

      The policies of sanctuary cities do not include “sneaking illegals out the back to avoid ICE”. There is no sanctuary city that does that. There is one judge who allegedly did that, not in a sanctuary state, and she is facing criminal charges for it.

    Bruce Hayden in reply to Milhouse. | August 1, 2021 at 1:27 pm

    But there has always been a bit of racial profiling, at least of Blacks in this country, until this past year. The problem has been that race alone would provide reasonable suspicion, sufficient to talk to some, if it were anything besides race. With maybe 12% of the population committing over half the violent crime in the country, race, combined with age, sex, dress, and overall demeanor, is a pretty good indication of propensity to be a criminal. Not fair, of course, but wearing a belt to keep their pants up would be a small price to pay to allay suspicion.

    Here it is probably easier. Just do what cops do, provide an articulable reason for suspicion, then ask the people for identification, just like they do for anyone else they pull over. And if they don’t have legitimate identification, detain them until their identity can be confirmed. Nothing different than the police do thousands of times a day across TX and every other state. What if they aren’t supposed to ask people who might be here illegally (and thus carrying COVID-19) for their IDs? Then, whenever the criminal element is asked for their IDs, they will just claim to be illegals.

    Ratbert in reply to Milhouse. | August 1, 2021 at 10:38 pm

    It’s easy you fool. The Texas Rangers only have to stop all busses and vans to ask questions regardless of the ethnicity of the driver and passengers. Maybe the feebs can tote their diseased cargo by Uber, one illegal at a time.

It is past time for states to tell the feds to pound sand on a number of issues.

United We Stand.
This sham of an administration reeks of division, and Obama is in the shadows. Has anyone seen him lately?

    JusticeDelivered in reply to scooterjay. | August 1, 2021 at 9:48 pm

    That is the point, Obama is down right sleazy, sneaking around looking for opportunities to do dirty deeds.

“As outrageous as Biden’s malfeasance is, Texas has an uphill legal fight.”

Texas is fighting an uphill legal battle because like everywhere else, it’s kabuki politicians have been on the wrong side for too long. There is nothing that would have stopped Texans from following CA and building their own wall but they didn’t. And Abbot is FINALLY finding the gonads to at least make an effort to fight. Welcome to the fight Texas! Where have you been? CA didn’t do this to you!

The one-party system has been legislating and governing into the teeth of voter antipathy for decades on this issue. There is no excuse for Texas to be in this situation. But now, the political will is there because voters, tired of listening to the empty talk of politicians and lawyers, have finally picked up their torches and pitchforks. Once the Democrat walls collapse for one final time, there won’t be a Republican cavalry circling the wagons to save them. THAT is what is finally motivating Abbot and his ilk to “get tough”. The masks are still dropping.

We’ve been living on the 1-yard line with victory in our grasp for how many years? Yet the Republicans always manage to snatch defeat from the jaws of victory. And it always happens in the last second as we look over to the other end zone to see Dem and Rep politicians celebrating. We always go back to the well and play the same game again believing things will change. Well this time, there will be hell to pay. It is time we start rallying around Trump and cram the football down their throats and go for the win. It’s not the lawyers who will get us into the end zone but the corrupt establishment’s fear of the wrath of the voters. Let’s see how SCOTUS rules when OUR side is pounding on their doors.

It’s ours to win or lose.

    Dathurtz in reply to Pasadena Phil. | August 1, 2021 at 8:45 am

    I agree except it isn’t about Trump. It is about the ideals I was raised to think held our country and civilization together.

    We can’t conserve a damn thibg playing defense.

    Ben Kent in reply to Pasadena Phil. | August 1, 2021 at 9:25 am

    Texas is good a fight uphill battles. Don’t count TX out. Remember the Alamo.

      Alamo was a winnable battle.

      dmacleo in reply to Ben Kent. | August 1, 2021 at 12:18 pm

      where they lost? not the best example as it only conveys fighting until the end.

      Bruce Hayden in reply to Ben Kent. | August 1, 2021 at 1:35 pm

      Apparently, Gov Abbot is term limited. That means an open election for his successor. One of the Fleebaggers has said that she is running. What are her odds of winning the state if the Republicans go all Alamo on the Democrats? This is Texas, where much of the population is deep into their mythos. That mythos includes fighting the impossible fight.

Emigration reform to mitigate progressive policies and collateral damage at both ends of the bridge and throughout. Immigration is normal. Immigration reform is not. Demos-cracy is aborted at the Twilight fringe. Baby Lives Matter