(CN) — An executive order from Texas Governor Greg Abbott directing state police to stop anyone suspected of transporting Covid-19-infected immigrants was blocked via two lawsuits. But a Fifth Circuit panel appeared ready Wednesday to dismiss Abbott from the litigation.
Over the last two years, Abbott has harped on what he calls President Joe Biden’s “open-border policies,” linking them to 2.3 million apprehensions of undocumented immigrants by federal agents at the southwest border in fiscal year 2022, a record high. He made immigration the No. 1 issue of his reelection campaign and cruised to a third term Tuesday, defeating his Democratic opponent Beto O’Rourke by nearly 1 million votes.
But Abbott’s own substantial efforts have also seemingly done nothing to dissuade people from entering Texas without papers.
He launched Operation Lone Star in March 2021 and deployed 10,000 Texas National Guard and state police to the border, signed a border disaster declaration 14 months later giving state police authority to arrest immigrants on state trespassing charges and has used the disaster status to divert millions of dollars to the operation from agencies that oversee child protective services and adult and juvenile prisons, in addition to more than $2 billion allocated by the Republican-controlled Texas Legislature.
The governor gives weekly updates and at last count, as of Nov. 4, he says the effort has led to 321,000 apprehensions of immigrants, 21,400 arrests, 18,900 felony charges and the seizure of 350 million doses of fentanyl.
Throughout the initiative, Abbott has outraged civil rights groups who say Texas authorities should not be involved in immigration enforcement since it is the exclusive duty of the federal government.
Abbott further blurred that line in July 2021.
Citing his ongoing Covid-19 and border security disaster declarations, the governor issued executive order GA-37, stating the “surge of individuals unlawfully crossing the Texas-Mexico border poses an ongoing and imminent threat of disaster for certain counties and agencies in the State of Texas, including the potential for the spread of Covid-19.”
It barred people, other than law enforcement, from transporting undocumented immigrants in the state and directed Texas Department of Public Safety troopers to stop any vehicle suspected of violating the order, reroute it to a port of entry, or its point of origin, and impound any automobile whose driver refuses to be rerouted.
Before DPS started enforcing the order, the Biden administration challenged it in El Paso federal court, followed a week later by another lawsuit from the ACLU of Texas on behalf of three advocacy groups that run shelters, subsidize taxi services and provide legal services for immigrants.
The challengers complained it would lead to racial profiling and impinge on Customs and Border Protection agents’ ability to transport migrants, as some are not considered law enforcement.
They alleged it violated the Constitution’s Supremacy Clause by trying to regulate federal-government-exclusive matters and the Fourth Amendment by authorizing unreasonable searches and seizures.
U.S. District Judge Kathleen Cardone consolidated the lawsuits, which named Texas, Abbott and DPS Director Steve McCraw as defendants, and blocked GA-37 with an injunction.
The George W. Bush appointee tossed out the supremacy clause claims in February but rejected Abbott’s dismissal motion based on sovereign immunity and the fact he has no role in enforcing GA-37.
Abbott appealed to the Fifth Circuit and a three-judge panel of the court heard arguments Wednesday.
Evan Greene, a Texas assistant solicitor general, insisted Abbott does not belong in the litigation.
“GA-37 will be enforced by DPS whose director is already an appropriate defendant in this case. Governor Abbott therefore should have been dismissed as a defendant," Greene said.
But U.S. Circuit Judge Don Willett pointed to the state statutes Abbott invoked in his order – which the challengers say give him commander-in-chief power over DPS during declared disasters – and questioned if he would remain hands-off in any circumstance, given his authority.
“What if DPS told the governor, ‘Go pound sand. We don’t care what you said in your executive order.’ Can the governor do anything about that? … He could take command. He could fire everybody who doesn’t do what he says. Right?” asked Willett, a Donald Trump appointee.
Greene countered Abbott is simply following state law.
“He’s directed to delegate this type of authority to the greatest extent possible,” the attorney said. “And if it becomes impossible for his authority to be carried out, presumably he could issue a separate order taking command authority [of DPS]. But he’d have to do that. And he hasn’t.”
ACLU of Texas attorney Kathryn Huddleston argued Abbott should remain a defendant as he clearly did not delegate authority to enforce the order to McCraw.
“The executive order specifically directs DPS to take specific action,” she said.
She compared including Abbott in the litigation to Abbott naming President Biden and U.S. military officials in a lawsuit the governor filed in January over a Defense Department Covid-19 vaccine mandate for Texas National Guard soldiers.
“This is a totally normal thing,” she stressed, adding it ensures everyone in the chain of command for DPS is blocked from enforcing GA-37, so state troopers are not subject to conflicting orders.
But Willett and U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, repeatedly asked Huddleston why an injunction would have to include Abbott if it was blocking McCraw from enforcing the order by directing state police to pull over people suspected of transporting undocumented immigrants.
“Would that give you all the relief that you would otherwise need unless and until the governor intervenes?” Stewart asked Huddleston.
“The answer is no, your honor,” she replied. “That’s because the governor could act—"
Stewart stopped her: “Until he acts though, do you have all the relief you need until he does something?”
U.S. Circuit Judge Andrew Oldham, a Trump appointee and former general counsel to Abbott, rounded out the panel and also indicated he will side with the governor.
The judges did not say when they would rule on the case.
In another ploy to highlight the Biden administration’s immigration policies, Abbott, starting in April, contracted with bus operators to transport immigrants to Democratic-led “sanctuary cities.”
“Texas has also bused almost 8,300 migrants to our nation's capital since April, over 3,500 migrants to New York City since August 5, and more than 1,100 migrants to Chicago since August 31. The busing mission is providing much-needed relief to our overwhelmed border communities,” he said in a Nov. 4 press release.
Texas has spent more than $12 million on the bus rides.
For Denise Gilman, a University of Texas-Austin immigration law professor, it is unclear if Abbott’s busing program would violate his own executive order.
“The question would be whether those involved in the busing qualify as law enforcement, and I think it’s hard to say because the process has been so political and opaque,” Gilman said in an email.
“Regardless, overall, the set of measures adopted by the governor, viewed all together, are xenophobic and punitive of asylum seekers and other migrants seeking protection under the law in this country,” she added.
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