The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, Texas Governor Greg Abbott issued Executive Order No. GA-37. This order was motivated by a recent report that Border Patrol released a migrant family to a Whataburger because they had COVID-19. The order provides, in part:
- 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.
- 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.
- DPS is authorized to impound a vehicle that is being used to transport migrants in violation of paragraph 1, or that refuses to be rerouted in violation of paragraph 2.
When I reviewed this order, I immediately thought of Arizona v. Texas. It is unclear how this order would even be enforced, but this policy would seem to conflict with federal immigration policy. I fully expected the Biden Administration to sue. I said as much to the local Houston NBC affiliate.
And, to no one's surprise, Attorney General Garland has sent a demand letter to Governor Abbott. It relies on Arizona:
Moreover, Texas has no authority to interfere with the United States' "broad, undoubted power over the subject of immigration" by impairing the United States' release of individuals and the ability of those individuals to comply with federal immigration law. See Arizona v. United States, 567 U.S. 387, 395--416 (2012). To the extent the Order interferes with immigration enforcement, the Order is unconstitutional.
At the end of the letter, Garland threatened to sue.
In short, the Order is contrary to federal law and cannot be enforced. Accordingly, consistent with its authorities under federal law, the United States will continue its noncitizen transportation operations unabated. I urge you to immediately rescind the Order. If you do not do so, I am providing notice consistent with Section 1-10 .100 of the Justice Department's Justice Manual that the United States intends to pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government.
I suspect a suit will be filed in the Western District of Texas-Austin division quite soon.