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Court Issues Temporary Restraining Order Halting Texas Illegal Migrant Transport Ban

Court Issues Temporary Restraining Order Halting Texas Illegal Migrant Transport Ban

“The Executive Order causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens in federal custody, risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19.”

Faced with a COVID surge corresponding to an illegal migrant surge on the southern border, Texas Governor Greg Abbott signed an executive order restricting transport of persons detained by border patrol and ICE to local, state, and federal law enforcement. That would exclude the many private companies and groups used by the feds to move illeal migrants not just around Texas, but further into the U.S.

The federal government sued, claiming the Texas Order infringed on federal control of immigration, DOJ Sues Texas To Continue Private Transport of Illegal Migrants Despite COVID Risks. You can read the Complaint and Motion for a Temprorary Restraining Order, and the arguments of the feds, at the link.

I expected the argument in opposition to be that while the feds control immigration, Texas still controls public health in Texas:

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.

Texas filed a lengthy opposition arguing along those lines, USA v. Texas – COVID Migrant Transport Case – Opposition to Motion for TRO:

Texas faces twin emergencies: (1) the COVID-19 pandemic, including the rapid spread of the Delta variant, and (2) the surge of migrants at Texas’s international border. The migrant crisis feeds into the pandemic because the Biden Administration’s open-borders policies allow COVID-infected migrants to spread the disease in Texas.

Governor Abbott issued Executive Order GA-37 to quell the “potentially catastrophic effect on public health in Texas” caused by the confluence of the migrant crisis and the pandemic. Exhibit 1 at 1. In GA-37, Governor Abbott generally precluded (with exceptions) providing transportation to groups of migrants who pose a danger of transmitting COVID-19 into Texas communities. Suffering from the ongoing release of migrants who may spread COVID-19, Texas was not required to sit on its hands: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905).

But the federal government seeks to judicially nullify GA-37 through a blunderbuss and sweeping application of preemption and intergovernmental immunity. There is no merit to those arguments. GA-37 is a public-health regulation as the core of Texas’s police power. It prevents the transport of groups of potentially infected individuals within Texas to avoid the spread of COVID-19 into Texas communities. It does not interfere with any federal functions.

Oral argument was held on Monay, August 2, 2021. The Dallas Morning News had this account of  the oral argument:

The state of Texas was trying to create its “own immigration regime,” said Brian Boynton, a Justice Department attorney, during a nearly two-hour hearing.

Attorneys for the state argued that the coronavirus public health emergency gives Abbott the authority to go forward and that the federal government hadn’t proved a key prerequisite for a temporary restraining order: irreparable harm.

The order hasn’t yet been enforced, and so it was “premature” to argue irreparable harm, Will Thompson, an attorney for Texas argued. The executive order, however, said the statewide measure was “effective immediately.” …

A Justice Department attorney argued that the order would disrupt a network of transportation operations done by contractors to nonprofits, creating a “domino effect” and “chaos.”

“Everything else backs up,” said Boynton, the DOJ attorney.

But an attorney for Texas, Patrick Sweeten, pushed back and said “this parade of horribles” can’t be linked to the executive order because the guidelines haven’t come out yet.

“The U.S. government reaction is premature,” added Thompson, calling government assertions of harm “speculative claims.”

In its Reply, DOJ argued that the situation was so grave that the Texas Order would cause irreparable harm if the large-scale operations using private contractors were disrupted.

The court just ruled, granting the TRO:


On this day, the Court considered the United States’ Emergency Motion for a Temporary Restraining Order or Preliminary Injunction (“Motion”), ECF No. 3. Upon consideration of the Complaint and the Motion, including the declarations attached thereto, the Court finds as follows:

1. This Court has jurisdiction over the subject matter of this case, there is good cause to believe it will have jurisdiction over all the parties, and venue in this district is proper. The United States is likely to prevail on its claims that Texas Governor Greg Abbott’s“executive order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster,” issued on July 28, 2021 (“Executive Order”), violates the Supremacy Clause of the United States Constitution because (1) it conflicts with, and poses an obstacle to, federal immigration law; and (2) it directly regulates the federal government’s operations.

2. The Executive Order causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens in federal custody, risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19.

3. The balance of equities and the public interest also favor the United States.

4. The Court requires a fuller presentation of the facts and law before entering an order on Plaintiff’s application for a preliminary injunction.

Accordingly, it is hereby ORDERED that, pursuant to Federal Rule ofCivil Procedure 65, the Motion, ECF No. 3, is GRANTED.

IT IS FURTHER ORDERED that Defendants, their agents, officers, and employees, and all other persons and entities in active concert or participation with them, are ENJOINED, pending a full hearing on Plaintiff’s application for a preliminary injunction, from enforcing the Executive Order.

IT IS FURTHER ORDERED that this temporary restraining order shall remain in force until the 13th day of August, 2021, at 8:00 a.m., or until such later date as may be extended by the Court or agreed upon by the parties. Pursuant to Federal Rule of Civil Procedure 65, the parties shall appear before this Court on August 13, 2021, at 8:00 a.m., for a hearing on Plaintiff’s application for a preliminary injunction.




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Colonel Travis | August 3, 2021 at 6:37 pm

This country is screwed

Did Obama ever obey a judicial ruling that went against his plans? Neither should the state of Texas. Nullify! What’s the federal government going to do? Invade Texas? I’m hoping for another Alamo.

Texas, concerned about highway safety, should set the speed limit for vehicles carrying illegal invaders at 2 mph. If it saves just one child’s life…

Abbott is a liar. He never had the order enforced in any way and the massive numbers of illegals entering the country continue to rise. Further, while the judge says the order poses an obstacle to federal immigration law THE ADMINISTRATION IS NOT ENFORCING IMMIGRATION LAW AT ALL!

The order was signed by Kathleen Cardone, a Bush Jr. appointee.

When can we stop pretending the Republican Party is anything more than a pale echo of the ruling Communist Party?

    Stop being an idiot. Stop pretending that any judicial decision that goes against your preferred position could ONLY happen because the judge was not appointed by Trump. But wait…you got all the Supreme Court judges you could possibly want appointed by Trump and you guys are still bitching endlessly.
    In addition, you don’t even know what is going on. The judge just issued a TEMPORARY restraining order, which simply keeps Texas from implementing its plans FOR NOW, until a full trial can be heard before the judge. It is only after that trial that a final decision will be made, and then that will be appealed.
    In fact, the Constitution clearly states that FEDERAL laws always are supreme to STATE laws. Here, Federal law covers immigration, and therefore, at first blush, state law cannot interfere with Federal immigration activities. Every lawyer in the world knew Abbotts’ attempts to enforce immigration law was an uphill battle. Because of the Constitution. YOU WANT THE CONSTITUTION UPHELD, do you not?
    This case presents some novel ideas before the law, such as when can states act when the Federal government does not. But stop trying to pretend the law does not exist and everything is a political fix.

      CommoChief in reply to fredx3. | August 4, 2021 at 3:16 pm


      Within those areas of clear federal responsibility under the Constitution the federal law is supreme and must be because the power was granted to the federal government from the States over those limited aspects.

      Here we have a State acting in furtherance of a legitimate State interest; public health. The federal government is effectively asserting that their power over immigration overrides the State interest in public health.

      That’s an important distinction. There isn’t a direct conflict on the same policy. The conflict is between separate constitutional powers and interests. Simply because the federal government says ‘hey we’re the feds and the supremacy clause means what we say goes’ doesn’t hold water.

      The feds argument is sketchy at best. Recall that the transport wouldn’t be required if the feds were acting to follow federal immigration laws. Here the feds are stating that they have discretion to ignore the law passed by Congress and ignore the very real public health interest of the States.

      In essence the feds are arguing that the clear State interest of public health is able to be overcome by invoking the supremacy clause in conjunction with a seperate federal law that they choose to not follow.

      An argument that maladministration in immigration law trumps a legitimate State interest in public health isn’t overly convincing IMO.

      FortesFortunaJuvat in reply to fredx3. | August 8, 2021 at 9:30 am

      Federal immigration laws are not being enforced. As a matter of fact, the regime has issued orders to not enforce those laws. That is a crime. Where the state acts to enforce laws being criminally neglected by the federal government there is no “interference” in the law enforcement duty of the Executive.

      You appear to want the Constitution upheld only when it serves your purpose. The Constitution mandates that the Executive enforce existing law which the regime is not doing. They are, therefore, in violation of the Constitution. Where the federal government acts criminally it is the responsibility of the state to stand between that government and the citizens. Governor Abbott may not be doing what you want him to do but, at least he’s trying to enforce the Constitution.

      This case presents absolutely zero novel ideas before the law. The states have the absolute right to act when the federal government does not. Why? Because all authority/power of the federal government is delegated to that government by the states, not ceded. Therefore, the states control what authority/power the federal government is authorized and empowered to employ. Additionally, the states retain all authority/power not expressly delegated to the federal government. That would include acting when the federal government fails to do so. Especially when the federal government criminally fails to do so.

    You are confusing the issues. People need to stop looking at democrat vs Republican and start looking at NWO vs USA. Republicans still have plenty of patriots within their ranks but there are still plenty of RInos. RInos are getting all the attention. It will pass

Texas should follow the CDC example and ignore the court’s ruling since they do not like it. (Yes, I know this won’t happen.)

    MarkS in reply to Oracle. | August 3, 2021 at 7:40 pm

    That’s because Abbott is just another wimpy Republican that is all hat and no cattle

    caseoftheblues in reply to Oracle. | August 3, 2021 at 7:50 pm

    Not just the CDC…Democrat administrations, states and cities ignore the law and court rulings with impunity…Republicans get stopped in their tracks within hours by “friendly” judges. Virtually everyone of Trump’s Eo’s were challenged within 24 hours and Biden’s…maybe 1 of 100 were…and when judges do rule in favor the Dems just ignore…and NOTHING happens. Abbott should not only ignore this he shoukd start deporting/turning them back at his border. Laws don’t apply anymore

      Completely agree. It is the Biden way of doing things. He has freely admitted it with the CDC moratorium on evictions. He knows it is against the constitution and a crime against property owners but as he states, it will be months until it sees a court

Abbott is not preventing illegals from crossing the border, just moving within the State. I thought that immigration was about borders, not inside the states? Do we have the Feds limiting where immigrants go? It’s now one big uni-State…. not 50 of them… only the Fed.. for the Fed and by the Fed. Do all of those loyal Dems who worship their “precious democracy” and pray toward the Temple of Democracy realize they are now mere bystanders. All that this does is immensely expand the suffering when everything fails.

Abbott this is the red line

You will NEVER be President if you o su this treasonous judge!!!

The Federal government is allowing illegal aliens to enter and travel throughout the country without testing them for Covid or requiring they be vaccinated. Aren’t people who legally enter the US required to submit to testing? The Federal government is giving illegal aliens entering the country far more freedom that it grants people legally entering the country.

If the Federal government can let untested and unvaccinated illegal aliens — whom it is essentially encouraging to enter the country — not only remain in the country but allow them, even help them, to travel throughout the country how can it force actual real US citizens to do anything about Covid or restrict any of their rights because of Covid?

All Abbott needs to do is require that any vehicle transporting more than three persons that the occupants have a valid Covid vaccination card and a negative test

George_Kaplan | August 3, 2021 at 8:14 pm

So Texas has no ability to take steps to protect public health?

What happens if the state files an appeal and elects to ignore the TRO in the meantime?

Alternatively, reissue the order in a rephrased format, focusing on private contractors and volunteer groups transporting potential plague vectors around the state.

brightlights | August 3, 2021 at 8:44 pm

Just do what Biden does with court orders: ignore them.

Henry Hawkins | August 3, 2021 at 8:53 pm

I hope Gov. Abbott is not going to take this sitting down.

Remarkable Biden wants mandatory travel papers for citizens but not illegals.

    Don in reply to Voyager. | August 3, 2021 at 11:33 pm

    Illegals are good, citizens are bad. Two million in 2021 plus the 1 million legal immigrants mostly from the third world. Three million third-worlders added in 2021. That doesn’t count the illegals that escape detection.

    Cloward-Piven, overwhelm the system.

“3. The balance of equities and the public interest also favor the United States.”

I must have a severe case of the galloping stupids because I just cain’t for the life of me figure out how this is so. Far be it for me to play nursemaid to such a fine legal mind but I do hope she washed her hands after pulling this one out of her ass.

Must be an Obama “judge”.

LibraryGryffon | August 3, 2021 at 10:25 pm

I’m not sure how keeping infectious illegals from travelling all over the country is supposed to prevent the spread of said infectious diseases.

Apparently logic is now rayciss and sexiss and homophobic?

The promotion of unfettered illegal immigration by the federal government is proof positive they know that the covid virus IS JUST A FLU.

Forcing experimental vaccines on people with no knowledge of long-term effects against a known not-very-serious-illness for political purposes is not just the violation of post-Nazi-era medical research principles such as the Nuremberg code, it is criminal.

2smartforlibs | August 4, 2021 at 7:32 am

Too bad the judge doesn’t realize having them here in the first place violated Title 5.

The judge ignored the fact that what the Feds are doing is completely illegal under Federal passed by Congress and signed by the President. Abbot is merely trying to enforce that law within his own state.

If the federal government abandons its responsibility to secure the border, then the states have to step up.

I have to consider this to be an indication on the way this administration is going. They just got a Federal judge to issue a decision to allow the Executive branch of the US government to continue breaking the law instead of enforcing it.

Makes you kind of wonder why we bother passing laws.

The Preamble.
I think of it as a scope of work for the Constitution.
As the Federal is doing very little of it these days, I think we have a breech of contract.

The Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Maybe the State of Texas should sue the Feds for all costs related to covid and illegal aliens.

The lesson learned from COVID in 5 democrat controlled states was how to use Covid as a weapon. By inserting sick people into elderly care facilities they killed thousands thereby increasing the deadliness of Covid which in turn justifies there illegal actions to defeat Covid. Actions like illegal mass mail in voting.
Importing thousands or millions of sick people and spreading them across America has the exact same effect and will be inflamed by the propaganda media to let the democrats abuse our laws to exercise more control over all of us.
Stall, delay and obfuscate is the means to minimize the damage until patriots get back in control and we can purge these idiots from power and from our country.
Exile all of them

FortesFortunaJuvat | August 8, 2021 at 9:16 am

The federal government is a criminal organization failing to abide by existing US law when, where, and how it chooses to do so when it is convenient to its goal of subverting the Constitution. The judge is now complicit in that criminality by allowing the Executive Branch to continue to flaunt its criminal decision to not enforce existing immigration laws (among others).

The Legislative Branch is actively seeking steal elections by another violation of the Constitution by the unconstitutional use of legislation as opposed to the constitutional remedy of the amendment process through a bill designed and intended to permit the government to further destroy individual freedom and spy on American citizens.

The Judicial Branch continues its activism and unconstitutional legislating from the bench in promoting the criminal activities of the Executive Branch and in violating the constitutional rights of hundreds of American citizens, on a daily basis.

These actions are not limited to the federal government as they are being repeated throught the Republic by various state and local levels of government.

Government is in rebellion against American citizens. Where government fails to perform its two major functions – preservation of individual rights and defense of the Republic – it is incumbent on the citizens to perform those functions in a manner they deem most appropriate to their needs.

“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” The unanimous Declaration of the thirteen united States of America, July 4, 1776.

The states ore responsible for public health, can’t they make it a felony for Covid positive people to travel thru Texas.

The Feds control immigration. But this isn’t about immigration, it’s about illegal entry into Texas & US that is presenting a serious health risk. Surely Texas has a right to control this. This court ruling seems just dumb.