Court decision expected Tuesday on Abbott’s order restricting migrant transportation

A federal judge didn’t make a decision on whether to freeze restrictions on migrant transportation put in place by Texas Gov. Greg Abbott, but Monday’s hearing did illustrate the combative relationship between a state government run by Republicans and a federal government now in the hands of Democrats.

A decision should be made by Tuesday afternoon, said U.S. District Judge Kathleen Cardone, an appointee of former President George W. Bush, in a courtroom full of attorneys for both sides and media.
The U.S. Department of Justice is seeking a temporary and permanent restraining order against Abbott’s order, arguing, in part, that it violates the Supremacy Clause of the U.S. Constitution, which establishes that federal law generally takes precedence over state laws.

The state of Texas was trying to create its “own immigration regime,” said Brian Boynton, a Justice Department attorney, during a nearly two-hour hearing.

Attorneys for the state argued that the coronavirus public health emergency gives Abbott the authority to go forward and that the federal government hadn’t proved a key prerequisite for a temporary restraining order: irreparable harm.

The order hasn’t yet been enforced, and so it was “premature” to argue irreparable harm, Will Thompson, an attorney for Texas argued. The executive order, however, said the statewide measure was “effective immediately.”

Under the order, Abbott directed state troopers to stop any vehicle under “reasonable suspicion” of providing ground transportation to migrants who had been detained previously by Customs and Border Protection and to reroute them back to their port of entry or point of origin. An exemption exists for federal, state or local law enforcement officials transporting migrants.

The measure was quickly denounced by various groups, from Catholic humanitarians to immigration lawyers, who emphasized that the migrants Abbott wants detained would have already been cleared for passage north by federal authorities for later appearances in immigration courts. They also said Abbott’s measure would lead to more COVID infections because of the clustering of migrants at the border in CBP facilities operated by the Border Patrol.

Abbott’s executive order, which he says is to limit the spread of COVID-19, came down even as he issued another order last week that bars local governments from issuing mask mandates to curtail the spread of the coronavirus as infections increase statewide.

The Justice Department sued Texas on Friday over the executive order from last Wednesday that seeks to immediately restrict the transportation of migrants by private contractors, nonprofits and volunteers. Abbott authorized state troopers to begin pulling over vehicles whose drivers appeared to be transporting migrants in an effort to “reduce the risk of COVID-19 exposure in our communities.”

A Justice Department attorney argued that the order would disrupt a network of transportation operations done by contractors to nonprofits, creating a “domino effect” and “chaos.”

“Everything else backs up,” said Boynton, the DOJ attorney.

But an attorney for Texas, Patrick Sweeten, pushed back and said “this parade of horribles” can’t be linked to the executive order because the guidelines haven’t come out yet.

“The U.S. government reaction is premature,” added Thompson, calling government assertions of harm “speculative claims.”

The latest border battle comes as apprehensions of migrants increase -- an unusual trend because declines are traditional during the summer heat. Already, migrants are being placed, again, under the Anzalduas International Bridge, which leads into Reynosa, Mexico, by Border Patrol authorities. In a court pleading on the harm from the executive order, the Border Patrol chief for the region, Brian Hastings, called the clustering of migrants at the bridge a “short-term, open-air processing center.”

Photos tweeted out by Rep. Henry Cuellar, D-Laredo, showed hundreds of people clustered there this weekend, shoulder to shoulder as they tried to stay in the shade on the dirt when temperatures neared 100. “Our DHS agents, & border communities, are overwhelmed & must be prioritized,” it read.

Cuellar said Border Patrol apprehensions for July would match those of June in his tweet.

Nearly every other sentence from both sides in the El Paso courtroom focused on Title 42, which during the Trump administration was enacted by the Centers for Disease Control and Prevention to allow for the rapid expulsion of migrants who cross the border during the pandemic. Title 42 placed a tourniquet on passage of asylum-seekers into the U.S. The majority of migrants seeking passage into the U.S. have been quickly sent back: 7 out of 10 for the fiscal year and 6 out of 10 for the month of June, according to government data.

Unaccompanied migrant children, traveling without a parent or legal guardian, have been allowed into the U.S. to eventually fight against deportation in the nation’s immigration courts. About 95,000 minors have been apprehended, through June, exceeding the entire year of the previous record set in 2019, when 81,000 minors were apprehended.

Title 42 has also led to many repeat crossers, largely among single adults, according to Customs and Border Protection. In June, about a third of crossers had tried before, CBP said. In 2019, it had been as low as 7%, according to the government.

Reached after the courtroom hearing, El Paso County Judge Ricardo Samaniego said the impact of the Abbott’s executive order was already being felt.

“We’re now struggling with less volunteers because of the type of threats and things that the governor does,” Samaniego said. “Volunteers are afraid that if they’re transporting migrants that will put them in a vulnerable situation. So many are opting out because of fear.”

Monday afternoon, the CDC said Title 42 would be extended until another review in 60 days -- a decision anticipated by many.

Earlier in the day, the American Civil Liberties Union and other advocacy groups said they were ending settlement talks with the Biden administration over their demand to lift the Title 42 ban for migrant families seeking asylum in the U.S.

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