Showdown: DOJ Attorney General sues Gov Abbott for ordering Texas National Guard To Assist In Making Arrests Related To Border Crisis
The Department Filed a Lawsuit Against the State of Texas;
Dear Attorney General Garland:
This letter responds to your letter dated July 29, 2021, in which you state that my Executive Order GA-37 “would jeopardize the health and safety of noncitizens.” It is clear from the arguments in your letter that the State of Texas and the federal government face a constitutional crisis.
The authority that you assert to protect noncitizens directly conflicts with my authority, and duty, to protect citizens of Texas and the United States. The constitutions and laws of the United States and of Texas empower me, as Governor, to protect the health and safety of Texans. See, e.g., U.S. Const. amend. X; Tex. Const. art. IV, §§ 1, 10; Tex. Gov’t Code ch. 418. Your actions, combined with the actions and omissions of the Biden Administration, directly conflict with my authority as Governor; and, candidly, conflict with the duty and obligation imposed on the Biden Administration to apply and enforce the immigration laws passed by the United States Congress.
The Biden Administration is failing and refusing to enforce immigration laws by allowing migrants to unlawfully enter into the United States. No doubt, the Constitution authorizes the federal government, not states, to administer the immigration process. However, the Constitution does not allow the Biden Administration to fabricate its own immigration laws. See, e.g., United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam); DHS v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1921–26 (2020) (Thomas, J., dissenting). Instead, the Administration is limited to applying laws enacted by Congress.
Worse, the Biden Administration is knowingly admitting hundreds of thousands of unauthorized migrants, many of whom the federal government knows full well have COVID-19. To be clear, the Biden Administration is knowingly importing COVID-19 into Texas from across the border and knowingly exposing Texans and Americans to that disease. While the Biden Administration is openly pondering looming shutdowns and mandates on U.S. citizens to control the spread of
COVID-19, at the same time the Administration is knowingly worsening the problem by importing COVID-19 at extreme rates.
Under long-established emergency response laws used by Texas in partnership with the federal government, I have the authority to control the movement of people to contain the spread of a disaster. Tex. Gov’t Code § 418.018(c). An obvious application of that standard is to limit the movement of people who are likely to have COVID-19. The assertion of this authority in Executive Order GA-37 is limited only to intra-state movement. It in no way interferes with either inter-state or international movement.
There are several actions the Biden Administration can take to avert a constitutional showdown while also addressing the public health concerns that my Executive Order seeks to achieve.
First, the Administration can ensure that any unauthorized migrants it allows to enter the United States remain only on federally owned or operated land. Already, the federal government is operating multiple migrant facilities along the border, presumably in ways that minimize or eliminate the potential for migrants infected with COVID-19 to transmit the disease to Texans. The federal government has the resources and capability to house those migrants while minimizing the transportation of infected migrants into Texas cities and towns.
Alternatively, the Biden Administration could simply enforce the existing federal immigration laws and stop admitting migrants who are not authorized by Congress to be admitted. That would substantially reduce the importation of COVID-19 while also fulfilling the federal government’s role to faithfully execute the laws of the United States.
My office remains committed to working with you and the Department of Justice to ensure that we achieve the twin goals of applying the laws of the United States and of this state, while also preventing the knowing importation of COVID-19 into our communities.
Texas AG challenges Biden:
Sincerely, Greg Abbott Governor
Governor Abbott Orders Texas National Guard To Assist Texas Department Of Public Safety In Making Arrests Related To Border Crisis
July 27, 2021 | Austin, Texas | Press Release
Governor Greg Abbott today sent a letter to Major General Tracy R. Norris, Adjutant General of the Texas National Guard, ordering guardsmen to assist the Texas Department of Public Safety (DPS) with arresting individuals for state charges related to the border crisis.
During the Governor’s Border Security Summit in Del Rio in mid-June, the Governor announced that individuals who commit criminal trespass or other state offenses will be subject to arrest and confinement. This order builds upon the Governor’s disaster declaration that directs DPS to enforce all federal and state criminal laws including for criminal trespassing, smuggling, and human trafficking.
“To respond to this disaster and secure the rule of law at our Southern border, more manpower is needed—in addition to the troopers from DPS and soldiers from the Texas National Guard I have already deployed there—and DPS needs help in arresting those who are violating state law,” reads the letter. “By virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, I hereby order that the Texas National Guard assist DPS in enforcing Texas law by arresting lawbreakers at the border.”
Dear General Norris:
Beginning on May 31, 2021, I have issued multiple proclamations certifying under Section 418.014 of the Texas Government Code that 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. To respond to this disaster and secure the rule of law at our Southern border, more manpower is needed—in addition to the troopers from the Texas Department of Public Safety (DPS) and soldiers from the Texas National Guard I have already deployed there—and DPS needs help in arresting those who are violating state law.
As “Commander-in-Chief of the military forces of the State” under Article IV, Section 7 of the Texas Constitution, the governor can “call forth the militia to execute the laws of the State.” Section 431.111 of the Texas Government Code likewise recognizes that the governor can call on state military forces “to enforce state law” and “to assist civil authorities in guarding [or] conveying prisoners.” And Section 437.002 of the Texas Government Code recognizes that “[t]he governor has full control and authority over all matters relating to the Texas military forces.”
By virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, I hereby order that the Texas National Guard assist DPS in enforcing Texas law by arresting lawbreakers at the border.
Sincerely,
Greg Abbott Governor
Border Operation
Our Mission: Provide the Governor and the President with ready forces in support of state and federal authorities at home and abroad.
Since 1916, the Texas Military Department has provided support to partner law enforcement agencies along the Texas-Mexico border in numerous different ways for different periods of time.
The National Guard began assisting U.S. Customs and Border Protection (CBP) in support of Operation Phalanx in 2010 with ground troops. In 2012, the mission switched to an aviation focused support. The National Guard supports the Rio Grande Valley and Laredo Border Patrol Sectors, encompassing a 135,439 square-mile area.
The National Guard’s mission is to conduct aerial detection and monitoring to disrupt Transnational Criminal Organizations (TCOs) and Drug Trafficking Organizations (DTOs) in support of the U.S. Department of Homeland Security (DHS). National Guardsmen supporting Operation Phalanx provide air-centric operations as augmentation to CBP as they increase capability with personnel and technology. The National Guard has a long history of enduring relationships with local, state and federal agencies in conducting DHS missions. Since 1917, horse cavalry units were sent to protect the southern borders of the U.S., and the National Guard has defended the U.S. southern border and continues to do so today.