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Texas’s Attempt To Cut Illegal Migration Is Legally Doomed But Effective PR


Late Tuesday, federal Judge Kathleen Cardone held that Texas Gov. Greg Abbot’s executive order banning the transportation of illegal aliens within the state by anyone other than federal, state, or local officials likely runs afoul of the Supremacy Clause of the U.S. Constitution. Cardone then entered a temporary restraining order enjoining enforcement of the executive order, pending a hearing on the Biden administration’s motion for a preliminary injunction, currently scheduled for August 13, 2021.

As a matter of law, Judge Cardone, a George W. Bush appointee, is correct and further proceedings and appeals will be unlikely to change yesterday’s outcome. Yet Abbott is in the right in exposing the Biden administration’s utter disregard for safeguarding our country and Americans against the risks of COVID.

Cardone’s decision yesterday followed the Biden administration’s Friday filing of a lawsuit against Texas. In that lawsuit, the Department of Justice argued Abbot’s executive order violates the Supremacy Clause because it disrupts federal immigration operations in Texas.

The Backstory to Abbott’s Executive Order

When he signed Executive Order No. GA-37, entitled “Relating to the Transportation of Migrants During the COVID-19 Disaster,” last Wednesday, Abbott reiterated that COVID-19 “poses an imminent threat of disaster for all counties in Texas.” In signing E.O. GA-37, the Texas governor also noted he had previously issued a disaster proclamation, finding “that the surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat of disaster for certain counties and agencies in the State of Texas.”

In the several “whereas” paragraphs that followed, Abbott stressed that “President Biden’s refusal to enforce laws passed by the United States Congress is having a predictable and potentially catastrophic effect on public health in Texas,” as seen, for instance, by a 900 percent increase in the number of illegal immigrants who tested positive for COVID-19 in the Rio Grande Valley. The E.O. then declared:

  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 [Custom and Border Patrol] 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.

Abbott’s ban on providing transportation to migrants detained for crossing the border illegally came two days after the police department of the border town La Joya issued a public health announcement concerning COVID-infected aliens released into the community by Border Patrol. In its announcement, the La Joya Police Department explained it had been called to a local restaurant after receiving complaints that a family there was coughing and sneezing and not wearing masks. Upon questioning, the family told officers they had been detained by Border Patrol, but were released after being diagnosed with COVID. The family added that they were staying at the Texas Inn Hotel.

When officers arrived at the hotel, they observed 20 to 30 other people outside of their rooms, most of whom were not wearing face masks. Upon further investigation, the officers “learned that people being detained by Border Patrol that showed symptoms of illness or were positive for COVID-19 were being quarantined by the agency and then later they were given custody to Catholic Charities of the Rio Grande Valley to be placed in hotels in the McAllen area as well as La Joya.” In La Joya, Catholic Charities had booked the entire Texas Inn Hotel.

Logical, But Illegal

Whether (or how much) the situation in La Joya influenced Abbott’s decision to issue the E.O. is unclear, but in the text of the E.O., the Republican governor highlighted the situation there, noting that “busloads of migrants, an unknown number of whom are infected with COVID-l9, are being transported to communities across the State of Texas, exposing Texans to the spread of COVID- 19, as has already been reported in cities like La Joya, among others.”

Given the facts on the ground, Abbott’s E.O. makes perfect sense: Nongovernmental organizations are transporting COVID-infected illegal aliens throughout Texas either without regard to the spread of the disease, or without the expertise and the manpower necessary to protect local communities. To protect Texans, then, the governor’s E.O. sought to restrict transportation to governmental officials.

While logical, Abbott’s E.O. is illegal. The Supremacy Clause of the U.S. Constitution makes clear that the federal Constitution and federal laws are “the supreme Law of the Land,” and that “every State shall be bound thereby.” Thus, federal law trumps or “preempts” state law. As to immigration, the federal government holds “broad, undoubted power over the subject of immigration and the status of aliens.”

The Supreme Court has also made clear that the Supremacy Clause means “states have no power … to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by [C]ongress to carry into effect the powers vested in the national government.” Just last year, as the DOJ explained in its brief, the Supreme Court reaffirmed that “the Constitution guarantees ‘entire independence of the General Government from any control by the respective States,’” and reiterated that states can neither “control the operations of the constitutional laws enacted by Congress,” nor impede the executive branch’s “execution of those laws.”

The Border Problem Is the Feds’ to Solve

Further, as the Biden administration detailed in its brief in support of the emergency injunction, the E.O.’s “restriction on the transportation of noncitizens would severely disrupt federal immigration operations” because the federal government “relies extensively” on private individuals and non-governmental organizations to transport illegal aliens. Abbot’s E.O. would then, in essence, bring the federal government’s processing of illegal immigrants in Texas to a standstill.

That Abbott crafted his E.O. to focus on state law and the public health emergency in Texas is irrelevant. Likewise irrelevant is the fact that the federal government could comply with the E.O. by hiring enough federal immigration agents and employees to transport the aliens.

Under our constitutional system, states just cannot tell the federal government how to do its job—even when the federal government is failing miserably, and even when the administration is attempting to hide the dirty little secret that the flood of illegal immigrants over the southern border has so far exceeded federal resources that they must rely on a bunch of private individuals to drive around COVID-positive illegal migrants.

In short, under well-established principles of constitutional law, the E.O. is preempted, which is why, even before Texas had an opportunity to respond to the DOJ’s Friday lawsuit, Judge Cardone had scheduled a hearing for the past Monday.

Exposing Failed Border Policies

While the DOJ won the first round and will likely prevail at later stages, including on appeal, it will be a Pyrrhic victory if Texas succeeds in forcing coverage of the crisis at the border that is a direct result of Biden administration policies and its refusal to enforce federal law. A spotlight on the Biden administration’s release of COVID-infected aliens into border communities will be especially damaging now, as the president is promising Americans more lockdowns.

Abbott stressed the Biden administration’s failed policies in the E.O. as well, contrasting the current administration’s handling of the border with President Trump’s response. “President Trump took action to protect Americans from COVID-19 by rapidly expelling migrants who could carry the disease across the border,” Abbott wrote, referring to the so-called “Title 42 order” adopted by the Trump administration.

The Trump administration’s Centers for Disease Control and Prevention issued that “Title 42 order” in March 2020, based on authority Congress granted the surgeon general to suspend entries of persons from places to prevent the spread of communicable diseases. Pursuant to that authority and due to the COVID outbreak, the Trump administration suspended land travel from Mexico and Canada to all non-citizens lacking proper travel documents and further ordered their “rapid” removal to the country from which they entered.

On paper, the Biden administration has not reversed the Trump administration’s Title 42 order, reportedly claiming that the “order remains necessary to limit the spread of the coronavirus.” In practice, however, the Biden administration has refused to exercise its broad Title 42 authority to quickly removed illegal aliens outside of the country.

Exposing the Biden Administration’s Incompetence

By issuing the E.O., Abbott is exposing this reality, and the DOJ’s lawsuit further confirms the extent and cost of the crisis. For example, in its brief in support of the temporary restraining order, the Biden administration highlights that it “spends over $200 million annually on contracts with private providers and county governments in Texas for transportation services, covering over 8,000 miles per day.”

The DOJ added that in the current budgetary year to date, “the U.S. Border Patrol’s contractors in just one of the four Texas Border Patrol sectors have transported approximately 120,000 noncitizens.” As large as that figure is, it pales in comparison to the 1 million total apprehensions the Border Patrol made in the first nine months of this fiscal year, which began in September.

Affidavits submitted by the Biden administration in support of its lawsuit provide further details of the extent of the crisis. For instance, currently, on a daily basis, Border Patrol transports more than 1,100 aliens, with most of those encounters occurring along the Texas-Mexico border. In just one year, there has been a 529 percent increase in apprehensions in the Texas sector, with more than 100,000 immigrants released, including 9,000 just last week alone.

Those affidavits also reveal the danger to Americans, both from COVID and criminals. According to one affidavit, for instance, aliens are taken to a temporary processing site constructed underneath the Anzalduas Bridge, to minimize “employee and migrant exposure to COVID-19 to the greatest extent possible.” Anyone who has seen photographs of the thousand-plus people packed together while waiting processing, however, realizes that “to the greatest extent possible” means not at all.

Elsewhere, the affidavits explain that the federal government uses contractors to transport non-criminal aliens to ensure adequate law enforcement personnel are available to transport the illegal border-crossers who have a criminal history—to safeguard the public, of course.

While the risk to Americans and especially Texans is great, as yesterday’s ruling shows, there is nothing Abbott or state and local officials can do about the Biden administration’s complete disregard for the security of our southern border, the criminals infiltrating our country, and the threat of COVID-infected illegal aliens.

Elections have consequences, and the COVID crisis at the border is a direct result of President Biden’s victory. Texas may not be able to avoid those consequences, but Abbott can make sure Americans know what the southern states are facing—and why.