(CN) — A lawsuit filed against Texas Governor Greg Abbott over an executive order he made targeting immigrants in the U.S. illegally is barred by sovereign immunity, a Fifth Circuit panel ruled Friday.
In a 2-1 ruling, U.S. Circuit Court Judges Don Willett and Andrew Oldham, both Donald Trump appointees, reversed a lower court's ruling upholding an injunction against Abbott's order.
Executive order GA-37, issued July 2021, gave the Texas Department of Public Safety the authority to stop any vehicle suspected of transporting a migrant infected with Covid-19. The order also limited the transportation of migrants to “federal, state and local law enforcement.” Anyone found transporting a person in the United States illegally was to be rerouted to the nearest port of entry or be impounded by DPS.
Before the order could be enforced, it was challenged in two lawsuits, one filed by the Department of Justice and the other by the American Civil Liberties Union on behalf of advocacy groups that provide shelter, transportation and legal services to migrants. The cases were later consolidated by U.S. District Court Judge Kathleen Cardone.
The groups argued that GA-37 violates the Constitution’s supremacy clause by attempting to regulate an issue that is under the purview of the federal government, as well as the Fourth Amendment right against unreasonable searches and seizures.
Abbott moved to dismiss, asserting that his actions were shielded by sovereign immunity and the plaintiffs lacked standing to sue in the first place because he was not a proper defendant and he was not responsible for enforcing the order.
Cardone denied Abbott’s motion to dismiss regarding standing but tossed the supremacy clause claim. The Republican governor appealed to the New Orleans-based Fifth Circuit Court of Appeals.
“GA-37 expressly tasks someone other than the governor with its enforcement," Oldham wrote for the majority. "As we have said, where the challenged law ‘makes clear that [another agency] is the agency responsible for the [law’s] administration and enforcement,’ only that agency is a proper defendant under Ex parte Young.”
Moreover, Oldham found that even if Abbott had the authority to enforce the order, he has not thus far shown a willingness to do so.
Oldham added that the advocacy groups’ lawsuit fails to overcome Abbott’s sovereign immunity claim because they are not under an imminent threat of being pulled over by the mere issuance of the order. The judge called such a notion “fanciful” and said the plaintiffs failed to raise a “credible threat” from Abbott since further action is to be at the discretion of DPS.
Finally, the Trump appointee wrote that the plaintiffs sought retroactive relief against previous actions taken by Abbott.
“[E]ven assuming the governor has directed DPS to pull over plaintiffs via this executive order, that instruction is in the past,” wrote Oldham. “DPS alone will enforce the order in the future.”
In his dissent, U.S. Circuit Court Judge Carl Stewart, a Bill Clinton appointee, said he was “unpersuaded” by Abbott’s immunity argument. Stewart said the governor’s powers are on “equal footing” with those of the DPS director through the use of the Texas Disaster Act, which Abbott used when issuing order GA-37.
“This is a case where Governor Abbott, like the director of DPS, is sufficiently related to the enforcement of GA-37,” wrote Stewart. “[T]he pronouncements he made in GA-37, taken with plaintiffs’ specific allegations about their operations and the threatened impact which the governor’s order presents, are sufficient to demonstrate his willingness to compel DPS to enforce the order.”
Abbott's office didn't respond to a request for comment regarding the court's ruling in his favor by press time.
As it stands Abbott’s order will remain blocked from enforcement under the injunction related to the lawsuit filed by the advocacy groups against Texas DPS director Steven McCraw. The director did not join Abbott’s appeal and has been, through the court of appeals ruling, deemed responsible for enforcing the order. Furthermore, Abbott has not appealed the injunction of the law pertaining to the Biden administration’s lawsuit against him in his official capacity as the state’s governor.
Friday’s ruling marks the latest development in the unending tug-of-war between the Lone Star State and the federal government on the issue of immigration. Months after President Joe Biden assumed office, Abbott began Operation Lone Star, a controversial border security initiative aimed at deterring unlawful entries into the state via the Texas-Mexico border. The governor has long argued the state-led effort is needed to respond to Biden’s “open borders policies.”
Thousands of Texas National Guardsmen and DPS troopers have been responsible for apprehending nearly 500,000 undocumented migrants and constructing hundreds of miles of fencing and razor wire.
This past week the state of Texas filed suit against the Department of Homeland Security, asking a judge to block the agency from cutting the wire. Texas Attorney General Ken Paxton says the Biden administration was guilty of providing aid to migrants entering the U.S. illegally — one of the litany of lawsuits Paxton and the federal government has filed against each other.
Under Operation Lone Star, the state has also transported over 50,000 migrants awaiting their day in immigration court to so-called “sanctuary cities.”
More than $9 billion has been either spent or allocated by the state to the operation, with more funding on the way as lawmakers work to pass several proposals aimed at giving the state more control over immigration policies. One proposal that was voted out of the Texas House earlier this week would empower police to apprehend and deport undocumented migrants.
As these proposals are to be signed into law by Governor Abbott, a new legal fight between Texas and the Biden Administration is sure to ensue.
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