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Federal Judge Debunks Greg Abbott’s COVID-Fighting Rationale, Blocks Texas Governor’s Ban on Transporting Migrants


Texas Gov. Greg Abbott COVID-19 Executive Order

In a win for the Biden administration, a federal judge blocked an executive order by Texas Gov. Greg Abbott (R) that would have banned the U.S. government from transporting migrants in the Lone Star State.  Abbott issued the order under the banner of fighting the coronavirus pandemic.

U.S. District Judge Kathleen Cardone, a George W. Bush appointee, determined that the governor’s order violated the Supremacy Clause of the Constitution and said Abbott’s rationale did not withstand basic scrutiny.

“Indeed, recent data shows that ‘migrants generally test positive at similar or lower rates than Americans living in the counties where they are tested,'” Cardone’s 19-page ruling notes. “And Texas’ single anecdotal example of noncitizens posing a public health risk — a migrant family apparently coughing without wearing masks in a restaurant — is not sufficient evidence that the Order will be effective in combating COVID-19 in Texas.”

In late July, the Department of Justice sued Abbott after the governor purported to ban anyone “other than a federal, state, or local law-enforcement official” from “provid[ing] ground transportation” to any “group of migrants” who had been previously detained by Customs and Border Protection agents or who had been “subject to expulsion.”

Though Abbott justified the order on public health grounds, the Justice Department characterized the move as an unconstitutional power grab whereby the state attempted to intrude into the federal government’s inherent powers —  and ultimately would have made the pandemic worse.

“The executive order violates the Supremacy Clause and causes injury to the United States and to individuals whom the United States is charged to protect, jeopardizing the health and safety of noncitizens in federal custody, risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19 in our communities,” the federal government’s lawsuit stated. “The executive order obstructs the Federal Government’s arrangements with nongovernmental partners and directly interferes with the administration of federal immigration law.”

Agreeing with the Justice Department’s chief constitutional argument, Cardone wrote: “Because the United States has established a likelihood that the Order violates the Supremacy Clause, irreparable harm is presumed.”

Cardone also found the public interest clearly favored the Biden administration.

“When the federal government is a party, the balance of equities and public interest factors merge,” the judge noted. “In this case, the balance of equities and public interest favor the United States. The Order seems to do little to protect public health despite its purported motivations. Texas presents no evidence that noncitizens entering the United States at the border pose a particular health risk such that restricting their transportation would improve health and safety.”

Texas cited a Fox News article showing a surge in COVID-19 rates among migrants along the U.S.-Mexico border, but the judge noted that it was relative to prior months and other migrants.

The more apples-to-apples comparison did not net the same result.

“But there is no evidence that this rate was higher than rates among U.S. citizens — or any other group — in the same time frame,” the judge noted.

Scholars have noted that the claim that migrants bring disease has been propagated to justify xenophobic measures against immigrants for centuries, even though those claims cut against medical evidence.

The Justice Department and Abbott’s spokesperson did not immediately respond to emails requesting comment.

Read the ruling below:

(Phopto by Tom Fox/Pool/Getty Images.)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."