Supremacy or Sovereignty? The Legal Struggle Between the Federal Government and the Lone Star State

At the start of the pandemic in March 2020, the Governor of Texas issued a disaster proclamation that the novel coronavirus posed an imminent threat of disaster for all counties in the State of Texas. The primary purpose of this proclamation was the authorization of "the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster." Curiously though, in May 2021, the governor passed yet another executive order that specifically prohibited "government entities and officials" from "mandating face coverings or restricting activities in response to the COVID-19 disaster." The stark dissimilarity of these statutes is apparent. Over just 14 months, the administration demonstrated contradictory attitudes and approaches to the pandemic. 

In July 2021, the governor yet again used the pandemic to greatly enhance the scope of the state government's power by issuing an executive order (EO GA 37, dated, July 28, 2021). This new measure did not address any healthcare-related measures to counter the effects of the pandemic but rather sought to control an unrelated matter – the transportation of migrants. The Order, titled, "Relating to the Transportation of Migrants During the Covid-19 Disaster," is remarkable in that it appears to blame immigrants for the spread of the virus and aims to stem this tide by restricting their movement through the state. Many have questioned the legal basis for the governor's action(s) and whether such action directly interferes with certain powers specifically reserved by the Constitution exclusively for the federal government. 

In the interest of providing background and context, this matter has been the subject of litigation by both the federal government and the American Civil Liberties Union (ACLU). Immediately following the release of the Executive Order, on July 29, 2021, Attorney General Merrick Garland sent a letter to Governor Abbott. The purpose of this letter was to offer notice—consistent with Section 1-10.100 of the Justice Department's Justice Manual—that the United States intends to pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government. Subsequently, the Department of Justice makes the following observations:

The Order purports to mandate that "[n]o person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants who have been detained by [U.S. Customs and Border Protection] for crossing the border illegally or who would have been subject to expulsion under the Title 42 order." EO GA 37 ¶1. As explained below, the Order is both dangerous and unlawful.

The letter explains that Texas cannot lawfully enforce this legislation due to the Supremacy Clause of the Constitution, which gives federal laws supremacy over state laws and statutes. Attorney General Garland cites Trump v. Vance, which ruled that states cannot "'control the operations of the constitutional laws enacted by Congress,' nor impede the Executive Branch's 'execution of those laws.'" In other words, such state action is inconsistent with established federal law. One can look to Johnson v. Maryland, in which the Court established that citizens could not be punished for "acting under and in pursuance of the laws of the United States," even if these U.S. laws are contradicted by a state law. The federal law holds supreme. Attorney General Garland concludes, "To the extent the Order interferes with immigration enforcement, the Order is unconstitutional." 

The Justice Department subsequently filed a Lawsuit to prevent the governor from enforcing his Executive Order. This lawsuit reiterates the legal illegitimacy of Abbot's declaration by once again citing the Supremacy Clause. Similarly, Spencer Amdur, one of the ACLU's staff attorneys for the Immigrants' Rights Project, stated that the Executive Order was an "unprecedented attack on the federal immigration system" which must be struck down." 

The ACLU sought a preliminary injunction through a lawsuit against Governor Abbot and Steven McCraw, in his official capacity as director of the Texas Department of Public Safety (DPS). Furthermore, the ACLU states that the federal lawsuit was filed on behalf of 4 litigants: Annunciation House, one of the largest shelter providers on the U.S.-Mexico border; Angry Tías & Abuelas of the Rio Grande Valley, a volunteer organization that aids migrants; Jennifer Harbury, a humanitarian volunteer who frequently drives migrants; and FIEL Houston, an immigrants' rights organization with members who include recently arrived migrants subject to restrictions on travel due to the Order. The importance of this lawsuit—and those who chose to file it—is that it speaks on behalf of the very Texans most affected by Governor Abbot's Executive Order. Each litigant has an individual cause of action, and all are united by a common platform to amplify their voices.  

In August of 2021, U.S. District Judge Kathleen Cardone of the United States District Court for the Western District of Texas granted a preliminary injunction in the aforementioned case. In her order granting the motion, she echoed the promise of the Supremacy Clause and the importance of holding federal law above any state issuance. 

However, on October 27, the Fifth Circuit Court of Appeals struck down the preliminary injunction issued by Judge Cardone as barred by sovereign immunity–the concept that a lawsuit cannot be brought before the government without explicit consent. The Court reversed the lower court's order in a nuanced 2-1 decision. In his dissent, Judge Carl Stewart wrote that Governor Abbott and the director of the DPS were sufficiently related, meaning that the assertions he made in his Executive Order "are sufficient to demonstrate his willingness to compel DPS to enforce the order." In other words, his position allows him the ability to coercively carry out his policy and therefore be sued.

The ACLU's lawsuit against the director of DPS remains outstanding because he chose not to join the governor in appealing the lower court's order. However, the matter is far from resolved, and in the coming weeks, the Department of Justice will likely continue to pursue this matter aggressively. 

Important legal principles are at stake here. For instance, in the landmark case of De Canas v. Bica, the Supreme Court defined the relationship between the federal government and the state governments on immigration policy and allowed the state governments to enact protected laws so long as they remained consistent with federal policy on immigration. Arizona v. United States is another case often used to illustrate the Supremacy Clause and may be used to further establish the illegitimacy of Abbot's Executive Order as the power struggle between the federal government and the Lone Star State heats up.  

Already, New York has had to face the steady stream of migrants shipped to its most populous city under "Operation Lone Star." The power of the legal challenges presented in this context poses many compelling interpretations of the Supremacy Clause and the passage of arms between the federal and state governments. It allows for a unique and nuanced analysis of pluralism, as we attempt to redefine political cohesion in a novel context. 

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1 "ACLU Files Federal Lawsuit Challenging Texas Migrant Transportation Order." American Civil Liberties Union (August 2021). 

2 Annunciation House v. Abbott, 3:21-cv-00178, (W.D. Tex.).

3 Arizona v. United States, 567 U.S. 387 (2012).

4 De Canas v. Bica, 424 U.S. 351 (1976).

5 Garland, Merrick. Letter to The Honorable Greg Abbot (July 2021). Office of the Attorney General, Washington D.C. 

6 Governor of the State of Texas [Greg Abbot]. A proclamation certifying that COVID-1 poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. (March 2020). 

7 Governor of the State of Texas [Greg Abbot]. Executive Order GA 36: Relating to the prohibition of governmental entities and officials from mandating face coverings or restricting activities in response to the COVID-19 disaster. (May 2021).

8 Governor of the State of Texas [Greg Abbot]. Executive Order GA 37: Executive Order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster (July 2021).

9 Johnson v. Maryland, 254 U.S. 51 (1920).

10 Operation Lone Star, Texas Indigent Defense Commission, https://www.tidc.texas.gov/operation-lone-star/ (last visited Nov 4, 2023).

11 Trump v. Vance, 591 U.S. ___ (2020).

12 United States v. Texas, 557 F. Supp. 3d 810 (W.D. Tex. 2021).

13 United States v. Abbott, No. 22-50212 (5th Cir. 2023).