Members of the Border Network for Human Rights protested outside the Albert Armendariz Sr. United States Courthouse in Downtown El Paso as a federal judge considered a lawsuit brought by the Biden administration against Texas and Gov. Greg Abbott. (Robert Moore/El Paso Matters)
Updated at 5:50 p.m. Monday, Aug. 2.

An El Paso federal judge said she will render a decision Tuesday in a case brought by the federal government against the state of Texas and Gov. Greg Abbott. 

The lawsuit aims to block an executive order Abbott issued last week that restricts the transportation of migrants by an individual or group outside of law enforcement. The Justice Department complaint argues that Abbott’s executive order “obstructs the federal government’s arrangements with nongovernmental partners and directly interferes with the administration of federal immigration law.”

Abbott said his order was intended to prevent the spread of COVID-19, according to a statement released last week. 

“We must do more to protect Texans from this virus and reduce the burden on our communities,” Abbott said. “This executive order will reduce the risk of COVID-19 exposure in our communities.” 

Acting Assistant U.S. Attorney General Bryan Boynton told U.S. District Judge Kathleen Cardone at a hearing Monday that Abbott’s order was tantamount to state-run immigration policy and cited the U.S. Supreme Court decision in Arizona v. United States as having upheld the federal government’s authority over immigration.

Boynton described the scale of the Texas executive order as “staggering” and said it would cause “absolute chaos.”

The Biden administration is asking Cardone for an injunction or temporary restraining order to block Abbott’s order from taking effect.

Attorneys representing the state of Texas argued that the federal government rushed to file suit before the executive order could have any potential impacts, and said that the Texas Department of Public Safety has yet to enforce the order. The agency is still working with federal agencies to construct the enforcement guidelines, they said. Attorney Patrick Sweeten said the “parade of horribles” that the federal government described was speculative and premature. 

Texas Gov. Greg Abbott, center, announced in June that the state would construct border barriers to deter migration. It was one of a number of border-related pronouncements by the governor over the summer. (Photo courtesy of Texas governor’s office)

Cardone pressed the state on whether Texas has considered restricting the movement of Texans who cross into Mexico and back, if the state was concerned with COVID-19 spread associated with travel in other countries. Attorney Will Thompson didn’t directly answer the judge’s question, but said that vaccination rates are lower in many of the countries the migrants are traveling from, specifically in Central America.

Cardone also noted that many Texans are not vaccinated, and asked whether Texas counsel had “actual numbers” regarding how many migrants were coming into the United States infected with COVID-19. In response, state attorneys cited a July 20 article from Fox News that reported cases of COVID-19 surged 900% among migrants in the Rio Grande Valley. 

The Fox News story cited by state lawyers said 135 detainees had tested positive in the Rio Grande Valley in the first two weeks of July, attributing the data to a slide sent by Border Patrol managers. The 900% increase claim would mean the area had only seen 15 migrant COVID cases in the prior 14 months.

Attorneys for the federal government also argued that the Texas executive order would, contrary to its stated aims, worsen COVID-19 outbreaks because it would cause more migrants to be held in congregate settings. Aside from the migrants, Boynton said the order would also harm federal workers and contractors, and border communities as a whole.

Texas counsel also argued that the El Paso court should not make a decision on this case because of the “first-filed rule,” a judicial doctrine that holds that when lawsuits have been filed in multiple courts involving the same parties and issues, the first court to have jurisdiction will retain the case.

Thompson said that there was significant overlap between this case and a lawsuit filed by the Texas attorney general against the Biden administration seeking to fully enforce Title 42, a Trump era policy that was largely continued by the new administration. Trump and Biden have used public health law to expel most migrants when they cross the border. The Biden administration is waiving Title 42 for unaccompanied children and some families. That lawsuit is being heard in the U.S. District Court in the Northern District of Texas. 

Attorneys for the federal government said at the conclusion of the hearing the Department of Justice would submit an additional filing to the judge in response to the state’s arguments. 

Before the hearing Ruben Garcia — the executive director of Annunciation House, an El Paso-based organization that provides shelter and transportation to recently arrived migrants and asylum seekers — said the order is creating a lot of uncertainty locally. 

“(It’s) uncertainty that makes it very very difficult to be able to operate an organization like Annunciation House, which relies so heavily on volunteers,” he said.

Garcia has been fielding calls from volunteers asking him to explain the order. “Can my car be confiscated?” he recalled one volunteer asking. But he said the lack of information about how the order will be implemented makes it difficult for him to know how to answer those questions. 

Under Abbott’s leadership, Texas was one of the first states to roll back COVID-19 restrictions. With new cases surging in the state amid the highly transmissible delta variant, Abbott said on July 21 that he would not impose additional mask mandates or COVID-19 restrictions in the state. He said it was “past the time of government mandates” and “into the time for personal responsibility.” On July 29, he issued an executive order prohibiting local officials from mandating vaccines or masks.

Cover photo: Members of the Border Network for Human Rights protested outside the Albert Armendariz Sr. United States Courthouse in Downtown El Paso as a federal judge considered a lawsuit brought by the Biden administration against Texas and Gov. Greg Abbott. (Robert Moore/El Paso Matters)

René Kladzyk is a freelance reporter who also performs music as Ziemba. Follow her on Twitter @ziembavision.