The Volokh Conspiracy
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On Wednesday, Texas Governor Greg Abbott issued Executive Order No. GA-37. On Thursday, Attorney General Garland threatened to sue Texas. On Friday, DOJ sued Texas in the U.S. District Court for the Western District of Texas-El Paso Division. (I guessed Austin division–mea culpa). You can download the complaint and TRO.
The brief raises two primary arguments: preemption and intergovernmental immunity. This filing is somewhat familiar. The Trump Administration raised these two primary arguments in its suit against California's sanctuary city laws. Attorney General Sessions argued that California was interfering with federal immigration policies. Ilya Shapiro and I wrote about that case in the WSJ. Ultimately, the Ninth Circuit upheld those measures, and the Supreme Court denied cert on Blue Monday.
Here is a summary of DOJ's argument:
In seeking to restrict the federal government's transportation of noncitizens in Texas, the executive order stands as an obstacle to the federal government's enforcement of the immigration laws and jeopardizes the health and safety of noncitizens in the federal government's care and custody. Because it interferes with the United States' "broad, undoubted power over the subject of immigration," Arizona v. United States, 567 U.S. 387, 394 (2012), the executive order violates the Supremacy Clause of the U.S. Constitution. The executive order also purports to authorize the Texas Department of Public Safety (DPS) to determine whether individuals are "subject to expulsion under the Title 42 order" and to take action against those transporting such individuals based on that determination. Order at 2. But the power to determine whether an individual is "subject to expulsion under the Title 42 order" is reserved exclusively to the federal government. Accordingly, the executive order is preempted by federal law for that reason as well.
Finally, the executive order is invalid under the doctrine of intergovernmental immunity, which prevents a State from regulating federal operations, including operations of contractors, grantees and other partners in their performance of delegated federal functions. Even assuming a nexus between the executive order's stated purpose of protecting the "health and safety of Texans" and the chosen enforcement tool, the order impermissibly seeks to regulate, impede, and frustrate the "movement[s] of migrants under the Biden Administration." Order at 2.
Finally, this brief uses the neologism "noncitizen" rather than "alien." But it does not expurgate the word "alien" from quotations.