Biden Administration Sues Texas Over Gov. Greg Abbott’s Latest Immigration Order

Gov. Greg Abbott this week issued an order restricting ground transportation of migrants who could have COVID-19, a move Attorney General Merrick Garland said violates federal law.


AP Photo/Julio Cortez
Migrants, who were caught trying to unlawfully enter into the United States, are led by a U.S. Customs and Border Protection agent, second from left, at the McAllen-Hidalgo International Bridge while being deported to Reynosa, Mexico, Thursday, March 18, 2021, in Hidalgo, Texas.

Updated 5:16 p.m. CT

The Biden administration has sued Texas over the governor's executive order restricting ground transportation of migrants, and directing the Texas Department of Public Safety to stop any vehicle it finds suspicious.

The federal lawsuit accuses Texas of violating the Supremacy Clause of the U.S. Constitution, after Gov. Greg Abbott issued Executive Order GA-37 on Wednesday. The order restricts the transportation of detained migrants in Texas to only local, state and federal law enforcement agencies. It also allows law enforcement to stop any vehicle upon “reasonable suspicion” of violating the order, and reroute or impound those vehicles.

In the suit, filed in Texas’ Western District in El Paso, the U.S. government says federal agencies rely on private contractors to provide transportation of noncitizens under immigration law, and that blocking that transportation would disrupt government functions.

The U.S. Department of Justice is asking for an injunction against the state to block Abbott’s order, and to declare it invalid under the Supremacy Clause, which says that federal law supersedes state laws.

In a statement released after the lawsuit was filed, Abbott called the suit a “constitutional crisis.”

“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 said.

The governor has characterized his order as a response to border crossings he claimed "led to a dramatic rise in COVID-19 cases” among migrants. In a letter to the DOJ on Friday, Abbott accused the Biden administration of jeopardizing the health and safety of Texans with his policies at the U.S.-Mexico border.

Abbott’s was a response to U.S. Attorney General Merrick Garland, who one day earlier had urged to governor to immediately rescind the order.

"The Order would jeopardize the health and safety of noncitizens in federal government custody, federal law enforcement and their families, and our communities,” he wrote. “Additionally, because federal law requires individuals processed for release to appear before immigration courts or to report to U.S. Immigration and Customs Enforcement offices throughout the country, the Order directly interferes with the implementation of federal immigration law.”

Read the entire lawsuit:

Garland closed the letter by saying that if Abbott did not immediately rescind the order, the Justice Department would "pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government."

Houston-based immigration attorney Gordon Quan said said the law was on the Biden administration's side. In addition to possibly violating the Supremacy Clause, he pointed to the 2012 U.S. Supreme Court decision in Arizona v. United States, which found that certain provisions of a law targeting immigrants in Arizona were unconstitutional, including a measure mandating immigrants carry papers with them in public.

“The Supreme Court has already ruled on this in Arizona v. United States that a statute of that nature is overly broad,” he said. “It invades a person's privacy just to have law enforcement stop them because they think they might be undocumented or of immigrant background.”

This is the second time in as many months that the Biden administration has threatened to sue Texas over one of Abbott's executive orders related to immigration. In May, Abbott ordered that Texas child care regulators revoke the licenses of 52 state-licensed facilities that house migrant children.

Paul Rodriguez, an attorney for the U.S. Department of Health and Human Services, also wrote in a letter to Abbott that the child care order violated the Supremacy Clause.

“Although we prefer to resolve this matter amicably," Rodriguez wrote at the time, “HHS is consulting the U.S. Department of Justice and intends to pursue whatever appropriate legal action is necessary to ensure the safety and wellbeing of the vulnerable youth that Congress entrusted to (the Office of Refugee Resettlement).”