Judge Blocks Texas Governor’s Transportation Order

It will likely be enjoined, but Abbott still sheds light on some inconsistent policies

By Andrew R. Arthur on August 5, 2021

On August 3, I reported that Texas Governor Greg Abbott (R) had issued an executive order restricting the private transportation of migrants posing a risk of carrying Covid-19 into the Lone Star State, and that DOJ had filed a motion to block that order’s implementation. On August 3, a federal judge enjoined Abbott’s order. That wasn’t unexpected, but Abbott has still drawn attention to the questions of why DHS isn't testing aliens before releasing them, and why it isn't detaining the Covid-positive ones.

Interestingly, DOJ filed its Motion for a Temporary Restraining Order not in the U.S. District Court for the Southern District of Texas (where most of that transportation occurs), but rather in its sister district, the Western District of Texas.

The Southern District has divisions in Brownsville, McAllen, and Laredo, an area that encompasses the Rio Grande Valley (RGV) and its immediate western environs.

Thus far in FY 2021 (through June), agents from the Border Patrol’s RGV sector have apprehended more than 331,000 migrants — almost 31 percent of total Border Patrol apprehensions this year, and more than twice as many as the next leading sector (nearby Laredo, at just over 149,000 apprehensions through June).

Combined, the RGV and Laredo Border Patrol sectors have accounted for more than 480,000 apprehensions — 44.6 percent of the more than 1,076,000 migrants apprehended entering illegally this year. Both fall under the jurisdiction of the federal Southern District of Texas.

Judge Andrew Hanen, who recently invalidated the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, sits in the Southern District, and Biden’s DOJ likely did not want him to hear the matter.

The Western District, a sprawling court that runs from Waco to El Paso, has jurisdiction over a less active portion of the border: The Border Patrol’s Big Bend, Del Rio, and (part of) the El Paso sectors. That is not to say that in the course of this year’s border disaster, nothing has been going on there: Combined, agents in those three sectors have apprehended almost 314,000 illegal migrants in FY 2021.

That is still fewer than the RGV alone, however. There is a reason why, when Vice President (and de facto border czar) Kamala Harris finally went to the border, she went to El Paso. The entire border is in a state of chaos, but that chaos is better papered over in El Paso than it is at the Gulf end of the Rio Grande.

As I noted in my August 3 post, DOJ argued in its motion that the government needed to have NGOs and contractors transport unaccompanied alien children (UACs) around and out of the border area. Almost 45,700 UACs have been apprehended in the RGV this year, which is 48 percent of all UAC apprehensions in FY 2021. El Paso, Del Rio, and Big Bend sectors? A total of 22,174.

DOJ in its motion also referred (obliquely) to the fact that “this fiscal 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” aliens.

Of course, there are five sectors in Texas, as I have mentioned (El Paso sector has jurisdiction over just two counties in the state, El Paso and Hudspeth, as well as all of New Mexico), but it is a little odd that DOJ failed to identify the one that has the busy contractors. As I stated in that earlier post, it’s obviously the RGV, but they likely did not want to reveal how “choosy” they had been while forum shopping.

Not that there is anything wrong with lawyers picking a jurisdiction where they are more likely to get the result they want. One friend has practically built her whole career out of changing venues to her clients’ advantage.

But much like the vice president’s travel planners, DOJ’s lawyers probably should have picked the district that has jurisdiction over what David Shahoulian, DHS assistant secretary for border and immigration policy, referred to as the “epicenter of the current surge”, the RGV. That’s where Abbott’s order would have had the greatest effect.

In any event, Judge Kathleen Cardone in the Western District of Texas drew the case, and issued a brief, two-page Temporary Restraining Order.

She found that DOJ was likely to prevail on its argument that Abbott’s order violates the Constitution’s Supremacy Clause because (she concluded): “(1) it conflicts with, and poses an obstacle to, federal immigration law; and (2) it directly regulates the federal government’s operations.”

Judge Cardone further held that the order “causes irreparable injury to the United States and to individuals the United States is charged with protecting”, by "jeopardizing the health and safety of” aliens in federal custody, “risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19.”

Of course, protecting border communities — and communities across the United States — from the spread of Covid was the rationale behind Abbott’s order to begin with.

States and localities are generally given a lot of leeway in implementing laws and regulations that, facially at least, are intended to protect health and promote hygiene. California’s Proposition 65 warnings, which advise residents of the Golden State “about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm”, are likely the best example.

Litigants have successfully sued over some of the chemicals that the state has added to the list (there is a whole body of law that has grown up around the warnings), but you still see “Prop. 65” warnings everywhere, from wineries to parking garages to restaurants.

All of that said, however, immigration is unique in our federal constitutional order, and states are on tricky ground when they attempt to even indirectly regulate it, regardless of the purpose. As DOJ argued:

Even assuming a nexus between the executive order’s stated purpose of protecting the “safety and health of Texans” and the chosen enforcement tool, the order impermissibly seeks to regulate, impede, and frustrate the “movements of migrants under the Biden Administration.”

The judge will likely issue a preliminary injunction of Abbott’s order (the temporary restraining order is only in effect until 8:00 a.m. on August 13), and her order will likely be sustained if the case makes it to the Fifth Circuit.

That said, the governor has raised an important issue, particularly given the Biden administration’s focus on controlling the spread of Covid.

As Jason Riley explained in the Wall Street Journal on August 3: “I don’t doubt that White House officials ... want to convey their concerns [about Covid] to as many vaccination-averse Americans as possible, but you’d never know it from their unserious approach to border enforcement.”

Riley continued:

No one can say for certain how big a role these high levels of illegal immigration have played in the spread of the virus, but the Biden administration can’t have it both ways. If the president wants the public to defer to public-health officials when it comes to masking and social distancing, he can’t expect people to ignore these same officials when they tell us that large numbers of recent migrants may be contributing to the crisis.

Given, as Shahoulian asserted, the RGV is the epicenter of the current surge of illegal migrants, Abbott is right to be concerned about the effect of the Biden administration’s (unlawful) release policies on the “safety and health of Texans”, particularly when it comes to the release of migrants who have not been Covid tested.

As DOJ explained in its motion, “NGOs perform the critical role of promptly conducting COVID-19 testing and offering safe placement for isolation and quarantine consistent with public-health mitigation measures.”

The latter proposition about “isolation” and consistency with “public-health mitigation measures” is questionable, as I explained in a July 29 post, but the part about “the critical role of promptly conducting COVID-19 testing” of those migrants is patently true.

Which raises the question of why the federal government is fobbing that responsibility off on NGOs, after migrants have been released from federal detention. That’s political malpractice, and a derogation of DHS’s duty to protect the American people (including Texans).

Further, while DHS can actually force (in the truest sense of the word) Covid-positive aliens to remain in quarantine and isolation, NGOs like the Catholic Charities of the Rio Grande Valley (CCRGV) cannot. For the Biden administration to request that they even try to do so is wholly irresponsible.

On the one hand, the Biden administration is considering new restrictions on Americans to control the spread of Covid. On the other, its immigration policies are allowing tens of thousands of unscreened aliens into the United States. Texas’s governor attempted to impede that process, but at least one judge has held that he can’t. Abbott has brought attention to the issue, though, and until Covid goes away, he likely won’t go away either, and will continue to force the president to answer for his inconsistent policies.

In case you are wondering, by the way, Judge Cardone was not a Biden — or even Obama —appointee. She was appointed in 2003 by one of Abbott’s predecessors as Texas governor, President George W. Bush.