DOJ Sues Texas Over Immigrant Travel Restrictions

"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."

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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.

NEXT: Changing Hyphens to En Dashes in Footnotes, in Bulk

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  1. Is DeSantis arresting Cuban migrants that wash up on the shores of Florida?? Asking for a friend. 😉

    1. One must make allowances against ostensible principles during time of (culture) war. No pure bigots in foxholes, etc.

      1. Just pure bigots like you here though, right Artie.

        1. ‘Democrats are the REAL racists’ . . . is that really how conservatives hope to reverse the tide of the culture war and develop a chance at medium- to long-term relevance in America?

          Carry on . . .

          1. Well, Democrat have, historically, always been the real racists. From before the Civil war, through that war, Jim Crow.

            All that happened with the civil rights movement is that you switched client groups.

            Heck, I’ll even concede that you probably started out with good motives. (Though there is that notorious LBJ quote…) You were just too used to selling racial preferences for votes to change your stripes.

    2. Well, Russia is arresting and deporting Cubans trying to get to the EU from Russia.

      https://www.bbc.com/news/world-europe-58033042

    3. Your whatabout is as dumb as every other time you’ve spammed it.

      Despite your unbacked assertion, Cuban refugees are fleeing an oppressive political regime. Central American refugees are economic migrants or fleeing lawless violence.

      1. Nope, Cuban migrants are economic refugees…you just want a red carpet rolled out for them because they vote Republican.

        1. What’s your point?

          1. DeSantis needs to arrest the illegal aliens that wash up on Florida’s beaches and put them in jail.

            1. Why would he bother? The Feds are already doing it.

  2. This reminds me of the old war protestor’s line: “We’re not disturbing the peace. We’re disturbing the war.”

    Abbott’s order doesn’t interfere with the enforcement of federal immigration laws. It interferes with non-enforcement of them.

    1. It almost sounds like a Galt is rooting for the authoritarian, nanny state bigots . . .

      1. Rooting for democrats? I don’t think so…

        1. Not the democrats, the authoritarian bigots.

    2. Wasn’t the initial line “the police are not here to prevent disorder, the police are here to preserve disorder” — Chicago 1968?

  3. There’s an obvious distinction between state officials declining to enforce federal immigration law on the one hand, and state officials attempting to enforce state-created immigration law on the other.

    1. Texas is merely encouraging enforcement of the immigration laws that federal officials are helping to violate.

      1. Do Republicans understand that when Texas turns blue the only thing left for conservatives in America will be begging for magnanimity from the culture war’s victors?

    2. +1, distinction

  4. Apparently, the migrants have Covid-19. Does the state of Texas have the power to prevent travel by infected individuals?

    1. Has xenophobia created a circumstance in which virus-flouting wingnuts recognize government authority during a pandemic?

      1. It created a circumstance that allows bigoted democrats to ignore the law during a pandemic however, Artie.

        1. You keep slinging those zingers, buckleup.

          Guys like me will keep stomping guys like you into irrelevance in the culture war.

          I am content to let time, reason, and progress sift this.

        2. I love the fact that I can accurately reproduce the content of posts by blocked posters just by checking the username,

          Great consistency, Cuckland,

          1. Where does “Cuckland” land on the Volokh Conspiracy’s continuum of right-wing censorship, Prof. Volokh? Anywhere near “c_p succ_or” or “sl_ck-j_wed?”

            That fake ‘free speech champion’ costume is becoming increasingly threadbare.

    2. The order isn’t restricted to infected individuals, so your question is irrelevant.

      Also, Abbott is not the “State of Texas”. He’s claiming a Covid-19 emergency power….while at the same time he’s got an executive order in effect banning localities from creating any of their own Covid-19 regulations, because there’s not an emergency.

      1. “Also, Abbott is not the “State of Texas”.”

        NO, all he an do is direct all the public employees of Texas.

    3. Good idea. If Texas had a state version of the CDC, they could order anything they want to, unconstitutional or not.

  5. “Texas is trying to interfere with our enforcement of immigration laws, which we don’t enforce.”

    1. This is the correct take.

      Plus, not just “don’t enforce”… they are actively aiding illegal immigrants and providing transportation to areas far from the border where they are released… Or ” resettled” one might say.

      It really is an odd argument to make in court. And it shows just how overtly partisan the court has become that they refuse to block these obvious violations of the law by the executive.

      Imagine if Trump had just come in and decreed “we are not enforcing environmental law”. Well.. You don’t really have to imagine. Courts did block the trump administration from taking actions fully within the executive purview on several occasions.

      1. So you don’t like Biden changing the law through executive action, but you support Abbott changing the law through executive action. Got it.

        1. Let them whimper and whine. The ‘lamentations of their women’ stage is one of my favorite parts of the culture war.

        2. So you don’t like Biden changing the law through executive action, but you support Abbott changing the law through executive action. Got it.

          Nope that’s an utterly dishonest way of phrasing it. He doesn’t like Biden ignoring written law through executive action, but he does like Abbott enforcing the law as written via executive action. See how that works ? It’s about enforcing the law as written no matter how much you try to dishonestly pretend otherwise.

          1. Really Artifex? Which law says only law enforcement officers may transport aliens?

            I think you made that up….liar.

  6. Obviously, Texas could not enforce that against actual federal employees.

    However, would private companies hired by the feds to provide transport be immune?

    1. If the executive order is preempted by federal law, yes.

      1. How can executive policy choices at the federal level preempt state actions that comport with federal statute?

        1. The DOJ argues that the executive order does not comport with federal statutes because it interferes with the ability of the federal government to execute federal statutes (read the DOJ complaint linked in Josh’s post for the details).

    2. “…would private companies hired by the feds to provide transport be immune?”

      Particularly if Texas were to impose the transport ban as a COVID measure….

      If General Mills could prohibit people from entering the State of Maine because they had been in Massachusetts — and the 1st Circuit upheld that fiat — then why can’t Texas prohibit people from entering the State of Texas because they had been in Mexico?

      Citizenship has nothing to do with it, if Maine could lawfully exclude everyone without a Maine-approved reason from entering, why can’t Texas take Maine’s list of “approved exceptions” and ban everyone else?

      Federal employees (personally) can enter, commercial truckdrivers delivering or returning from a delivery, persons employed in “essential” industries, and politicians — but no one else.

      Hence it’s not that they are illegal aliens but that they aren’t on the list of excepted persons and there is a COVID travel ban.

      1. Of course this would also approve to Texas (and other US) residents wanting to vacation in Mexico, e.g. spend a day in Tijuana, but isn’t the US/Mexico Border officially closed right now?

        I know that the US/Canadian one is is — See:
        https://www.wagmtv.com/2021/05/21/couples-divided-by-closed-border-say-family-isnt-tourism/

        1. There’s this thing called an “airplane” which can cross the border at a height of 30,000 feet or so, (approximately 29,985 feet higher than the “unclimbable” Trumpfenwall.) How many airplanes did Texas shoot down?

          1. Hint: Ask Senator Cruz if it’s been possible to get to Mexico (and back) on short notice…

      2. The executive order applies to transportation within Texas.

        1. While the largest of the New England States, the entire State of Maine would only constitute a small portion of the State of Texas.

          I-95 has 294 miles in Maine, while Texas has (or had) a legislative district that ran 500 miles down the median of an Interstate Highway — Texas is a lot bigger.

          Hence Texas could rationally impose intra-Texas transport restrictions, although memory is that these orders applied to the de-facto transportation *into* Texas from Federal zones on the border.

          Of course that gets into the issues raised by the Portsmouth Naval Shipyard which is in the middle of the river that separates Maine and New Hampshire. While accessed from New Hampshire (and named after the NH city of Portsmouth) — and owned by the US Navy — the island technically is on the Maine side of the river channel (or something) and hence technically is part of Kittery, Maine. Hence the Maine State Income Tax applies….

          1. Of course Texas can impose intra-Texas travel restrictions. But they can’t when those restrictions are preempted by federal law (noting that any appeal to Maine’s case as precedent for such a restriction not preempting federal law is inapt).

            1. They also have to preserve equal protection of the laws, no matter how much Texas Republicans would like to pass a “Driving While Hispanic” statute, they’re just not allowed to. So they have to dress it up and pretend it’s something totally different, the way voter suppression totally isn’t voter suppression, it’s “election security”.

      3. And also, the executive order isn’t a COVID travel ban that applies to all except a named few. It applies only to people detained by CBP for crossing the border illegally and those who would have been subject to expulsion under a Title 42 order.

        1. A distinction without a difference because there is no one who has crossed the border LEGALLY….

          Maybe Abbott was sloppy in writing his order, but what would be wrong with taking the exact same order that Herr Mills wrote and simply replacing “Massachusetts” with “Mexico”?

          Simply prohibiting *anyone* who had been in Mexico from traveling within Texas, excepting the same list that Mills did….

          1. what would be wrong with taking the exact same order that Herr Mills wrote and simply replacing “Massachusetts” with “Mexico”?

            Firstly, that order would result in people from Mexico merely quarantining for 14 days, which is far different than banning intrastate travel for people who had been in Mexico.

            Simply prohibiting *anyone* who had been in Mexico from traveling within Texas, excepting the same list that Mills did….

            Facially, that order sounds permissible. But as applied to contractors hired by the CBP to move unauthorized aliens within the state, the same issue of federal preemption applies (again noting nothing in the Maine precedent applies to that application).

            1. ” But as applied to contractors hired by the CBP to move unauthorized aliens within the state, the same issue of federal preemption applies “

              Not the illegals….

          2. ” there is no one who has crossed the border LEGALLY….”

            Unless you count people who have crossed the border legally.

            1. Of which, outside enumerated categories that don’t apply, there are none.

              1. as I said, all you have to do to get the result you want is to not count the times when it doesn’t.

      4. If General Mills could prohibit people from entering the State of Maine because they had been in Massachusetts — and the 1st Circuit upheld that fiat

        Like every other anecdote you tell, this is false.

      5. “why can’t Texas prohibit people from entering the State of Texas because they had been in Mexico?”

        There’s the challenge of proving that someone has been in Mexico. Say, didn’t Mr. Cruz head to Mexico to escape the Great Texas Cold Snap? Is he covered by this order? (yes, actually, I DO already know the answer to this one.)

  7. Just throw the Contractors in Jail somewhere in isolation. Tell the Feds to pound sand. Call it an Insurrection for Bonus points. Call it the worst attack since the Civil War! Remember the Alamo!

    1. Flailing, delusional clingers flinging random capitalization are among my favorite culture war casualties.

      You will obey, Tempe Jeff. As will Texas.

      You get to cry about it as much as you like, though. This is America.

    2. Contractors can each be welcomed to individually fight it out with the State of Texas in court. Some of them will undoubtedly eventually win.

      Will any contractors want to take on these contracts when each one involves the expense of court fights on several different issues?

      1. Will they win on the vehicle confiscation issue?
        Isn’t that a civil preponderance thing?

        Losing their vehicles — or even having them tied up in impound for a few years — will put an end to a lot of this real fast. It will eliminate the profit that outfits like Catholic Charities are currently enjoying.

        1. Obviously, the Catholics are operating their charities for profit.

    3. “Remember the Alamo!”

      Maybe try remembering who won that battle. Hint: Not the Texans.

    4. “Just throw the Contractors in Jail somewhere in isolation. Tell the Feds to pound sand. Call it an Insurrection”

      After all, that time in 1861 when a state rose up in open opposition to the federal government, they got everything they wanted. It turned out perfectly!

  8. By the way, the people in the La Joya Whataburger (the ones that triggered Abbott’s pants-wetting hysteria) had I-385 forms, issued by the Border Patrol, that authorizes them to be in the US.

    What part of LEGAL don’t you people understand?

    1. Correct me if I am wrong, but doesn’t having been born here constitute as least as much a right to be in the US as an I-385 form?

      And yet the First Circuit said that I could legally be excluded from the State of Maine. So why can’t Texas do the same thing?

      And didn’t some governor order people with NY license plates be stopped by the police, sending the National Guard to follow up on them? Can’t Texas do the same thing?

      Isn’t there a little think known as “precedent”?

      1. So before we continue, let’s make sure we understand each other. I was against what Main and New York did, and I am against what Texas did.

        You were in favor of what Maine and New York did, or against?

        1. Dr. Ed’s argument doesn’t depend on what he believes is right. It instead applies the precedent of other cases as being presumed to be right (a reasonable line of argument even if you don’t agree with the precedent)

          Dr Ed’s problem is those precedents have no relevance to the present case because the former restricted travel across state borders while the latter restricts travel within a state.

          1. “Dr Ed’s problem is those precedents have no relevance to the present case because the former restricted travel across state borders while the latter restricts travel within a state.”

            Maine seriously considered that as well but the problem was that there really was no legally-supported “rational” way to draw a line between Southern Maine and the rest of Maine. In part this was because the county lines were drawn in the 17th* and 18th Centuries when traffic largely was based on coastal & river vessels and then the narrow-gauge railroads that could economically follow the riverbanks.

            When the standard gauge railroads were built in the 20th Century (with automobiles also using those bridges) ** and then the Interstate Highway (I-95) built a half century later, travel shifted from a NW/SE direction to more of a North/South one. But the political subdivisions didn’t.

            And hence Herr Mills was put into the impossible position of defining who would be on which side of her arbitrary line.

            * Some Maine counties long preceded statehood — John Adams practiced law in Maine.

            ** https://www.mainememory.net/artifact/27897

      2. And yet the First Circuit said that I could legally be excluded from the State of Maine.

        No, it didn’t. Are you actually biologically incapable of telling the truth?

        1. Reality stubbornly refuses to conform to Special Ed’s ideology. That’s not HIS fault…

      3. “the First Circuit said that I could legally be excluded from the State of Maine. ”

        They only want productive citizens. Oregon used to have a similar policy, and posted signs at the border that said “welcome to Oregon, but please don’t stay.”

      4. “Correct me if I am wrong, but doesn’t having been born here constitute as least as much a right to be in the US as an I-385 form?”

        Prove it. Show the photo Id you came outta your egg with.

  9. The Covid panic cohort doesn’t seem to be too interested in protecting Americans from infected people who sneak across the border.

    Their interest ends when the opportunity to bully Americans ends.

    1. Sad but true….

    2. “The Covid panic cohort doesn’t seem to be too interested in protecting Americans from infected people who sneak across the border.”

      This is clearly true in the cases of Abbott and DeSantis. To whom else are you extending it?

  10. Red state governors may want to start compiling “Enemies of the State of ______” reports that list Biden Administration individuals that have harmed or contributed to the harm of residents of the state. Those reports might include details of the harm done and factual information about locals who assisted in the efforts to harm state residents.

    1. Doing this would just show how far they’ll go to avoid doing any actual work.

      1. Somehow you got unblocked. Blocking you again because your posts, like this one, make zero sense. There’s no recognizable thought pattern of any kind.

        What does “doing … work” have to do with anything? It doesn’t. It’s just random words, like you might hear from dementia sufferers. My sympathies go out to your family and the other people around you.

        1. You’re blocking me because YOU are stupid? OK.

  11. Note: Before going through the arguments as to why the Trxas executive order is or isn’t valid, you might want to explain what the order is about, perhaps even identify the substance of the provision or provisions in dispute.

  12. I don’t think that this is nearly as clear cut as Blackman suggests. It is not really being framed as an immigration issue, but as a public health issue involving an unvaccinated potently highly COVID-19 infected group. Yes, the Garland DOJ is trying to frame it as an immigration issue. They do that a lot – for example, for GA, claiming that the requirement for a photo ID is intentionally racist, and thus violates the Civil Rights Act. The question may turn on the wording of the EO, etc, instead of the perceived intent behind it. And this is in the more conservative 5th Circuit, and not the more liberal 9th Circuit, more likely to accept the conjuring of ill intent out of thin air. And when it gets to the Supreme Court, if it does, what are the chances that they don’t just moot it, on the grounds that it is a temporary measure, and they don’t really want to open that can of worms.

    Does the judiciary really want to be in the position of allowing the Feds to override state response to COVID-19, through claims that it interferes with their decision to not enforce immigration law, while allowing states to mandate much more ridiculous things, such as masking while on surfboards well out from shore. Etc. There is at least a very plausible relationship between this mandate and protecting state residents from COVID-19. That has very much not been the case with many of the rules put in place across the country over the last 18 months.

    1. The question may turn on the wording of the EO, etc, instead of the perceived intent behind it.

      The plain text of the EO conflicts with federal law. Your argument relies on intent trumping text.

      Does the judiciary really want to be in the position of allowing the Feds to override state response to COVID-19, through claims that it interferes with their decision to not enforce immigration law.

      Of course not. Now, all you have to do is convince the courts of the longshot that this EO remedies the federal government not enforcing immigration law.

    2. In NY I had to show a photo ID and show up in person to vote in a school board and budget election..I wonder why? Was this in violation of my rights? I wrote to my f’ing county legislator and he didn’t respond…the amount of corruption in election law is ridiculous as it favors the public sector elites…

    3. “a public health issue involving an unvaccinated potently highly COVID-19 infected group.”

      Why are you dragging the Republicans into it?

  13. “There is at least a very plausible relationship between this mandate and protecting state residents from COVID-19.”

    True, if one is VERY gullible. Oh, you supported Trump? Never mind. the relationship is ENTIRELY plausible.

  14. I would think the court should differ to the Kentucky and Virginia Resolutions of 1798 and 1799. The Federal Govt is a creation of the States and such must protect the life, liberty, and property of American Citizens…allowing illegals with covid to freely move in the States is in violation of the Declaration of Independence, and Bill of Rights. Weight should be given to Madison and Jefferson on this and not this whole nonsense about the “supremacy clause” which has nothing to do with the Federal Govt not living up to it’s responsiblities..the States in the end should always have the final answer if the Federal Govt violates our natural rights.

    1. Which natural right do you think is being violated?

      1. The right to oppress other people, of course.

  15. Lost in all this is the damage that not enforcing the law is doing to people’s trust in our system of law. Trust, once lost, is lost forever. If it looks like the law plays favorites, letting some people off the hook while clamping down on others, people naturally get cynical. While some level of favoritism and the occasional bad apple is inevitable, when unequal treatment literally becomes official policy, people will just stop trusting the system altogether.

  16. “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.”

    The US Constitution requires the President to faithfully execute the laws of the US, which the President is NOT doing WRT immigration law.

    There can be no “obstacle to the federal government’s enforcement of the immigration laws” when the feds aren’t actually enforcing them. And when you’re picking up illegal aliens at the border, bringing them into the US, and releasing them without even the fig-leaf of a court date, you’re not enforcing US immigration laws

    1. “The US Constitution requires the President to faithfully execute the laws of the US, which the President is NOT doing WRT immigration law.”

      Fact check: What immigration law is it that you find unsatisfactorily executed?

  17. Is this an admission that your opinion on this topic is as worthless as it is on issues of same-sex marriage?

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