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:
TEMPORORARY RESTRAINING ORDEROn 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.SO ORDERED.
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