United States v. Texas, EP-21-CV-173-KC (Consolidated)

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtKATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
Parties UNITED STATES of America, Plaintiff, Annunciation House; Angry Tias & Abuelas of the Rio Grande Valley; Jennifer Harbury; and Fiel Houston, Consolidated Plaintiffs, v. The State of TEXAS and Greg Abbott, in his official capacity as Governor of the State of Texas, Defendants, Steven McCraw, in his official capacity as Director of the State of Texas Department of Public Safety, Consolidated Defendant.
Docket NumberEP-21-CV-173-KC (Consolidated)
Decision Date26 August 2021

557 F.Supp.3d 810

UNITED STATES of America, Plaintiff,

Annunciation House; Angry Tias & Abuelas of the Rio Grande Valley; Jennifer Harbury; and Fiel Houston, Consolidated Plaintiffs,
v.
The State of TEXAS and Greg Abbott, in his official capacity as Governor of the State of Texas, Defendants,

Steven McCraw, in his official capacity as Director of the State of Texas Department of Public Safety, Consolidated Defendant.

EP-21-CV-173-KC (Consolidated)

United States District Court, W.D. Texas, El Paso Division.

Signed August 26, 2021


557 F.Supp.3d 813

Alexander K. Haas, Jean Lin, Michael Joseph Gerardi, Zachary Avallone, Brian Boynton, Joshua M. Kolsky, United States Dept. of Justice, Washington, DC, for Plaintiff United States of America.

Adriana Cecilia Pinon, ACLU Foundation of Texas, Andre I. Segura, Bernardo Rafael Cruz, Andre Ivan Segura Law Office, Kathryn Lynn Huddleston, Kathryn Huddleston Law Office, Houston, TX, Cody Wofsy, Katrina Eiland, Spencer Amdur, American Civil Liberties Union Foundation, San Francisco, CA, Ming Cheung, Noor Zafar, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs Annunciation House, Angry Tias & Abuelas of the Rio Grande Valley, Jennifer Harbury, FIEL Houston.

Judd E. Stone, Patrick K. Sweeten, William Thomas Thompson, Office of the Attorney General of Texas, Austin, TX, for Defendant State of Texas.

Patrick K. Sweeten, Texas Attorney General, Austin, TX, for Defendants Greg Abbott, Steven McCraw.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Plaintiff United States of America's Emergency Motion for a Temporary Restraining Order or Preliminary Injunction. ECF No. 3. Because Governor Abbott's Executive Order GA-37 authorizes Texas Department of

557 F.Supp.3d 814

Public Safety officers to make and act upon immigration determinations, the province of federal law, it violates the Supremacy Clause of the United States Constitution. As with the other States and their governors, Texas and Governor Abbott have broad authority to prevent and limit the spread of the coronavirus SARS-CoV-2, but they have presented no evidence in this case that GA-37 will be effective to achieve this goal. Plaintiff's Motion is GRANTED .

I. BACKGROUND

On July 28, 2021, Governor Greg Abbott issued Executive Order No. GA-37, titled "Relating to the transportation of migrants during the COVID-19 disaster" ("Order"). Tex. Exec. Order No. GA-37 (July 28, 2021), https://gov.texas.gov/uploads/files/press/EO-GA-37_transportation_of_migrants_during_COVID_IMAGE_07-28-2021.pdf. The Order mandates 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 [United States Customs and Border Patrol ("CBP")] for crossing the border illegally or who would have been subject to expulsion under the Title 42 order." Order at 2 ¶ 1. The Order directs the Texas Department of Public Safety ("DPS") to "stop any vehicle upon reasonable suspicion of a violation of paragraph 1, and to reroute such a vehicle back to its point of origin or a port of entry if a violation is confirmed." Id. ¶ 2. The Order further authorizes DPS to impound any vehicle "being used to transport migrants in violation of paragraph 1, or that refuses to be rerouted in violation of paragraph 2." Id. ¶ 3.

On July 30, 2021, the United States filed this action against the State of Texas and Governor Abbott, in his official capacity as governor of Texas, alleging that the Order is preempted by federal law and that it violates the doctrine of intergovernmental immunity. ECF No. 1. The same day, the United States filed their Emergency Motion for a Temporary Restraining Order ("TRO") or Preliminary Injunction, seeking to enjoin the enforcement of the Order. ECF No. 3. After a hearing on August 3, 2021, this Court granted the United States’ Motion for a TRO, enjoining the enforcement of the Order for ten days. ECF No. 18. On August 13, 2021, this Court held a hearing on the preliminary injunction and extended the TRO for an additional fourteen days. ECF No. 40.

II. DISCUSSION

A. Standard

The decision whether to grant a preliminary injunction is within the discretion of a district court. Allied Mktg. Group, Inc. v. CDL Mktg., Inc. , 878 F.2d 806, 809 (5th Cir. 1989). "[A] preliminary injunction is [meant] to preserve the status quo and thus prevent irreparable harm until the respective rights of the parties can be ascertained during a trial on the merits." Exhibitors Poster Exch., Inc. v. Nat'l Screen Serv. Corp. , 441 F.2d 560, 560 (5th Cir. 1971) (per curiam) (citations omitted); see also Fed. R. Civ. P. 65 ; W.D. TEX. LOC. R. CV-65. To prevail on a request for a preliminary injunction, a movant must show: "(1) a substantial likelihood of success on the merits, (2) a substantial threat that [the movant] will suffer irreparable harm if the injunction is not granted, (3) that the threatened injury outweighs any damage that the injunction might cause the [non-movant], and (4) that the injunction will not disserve the public interest." Nichols v. Alcatel USA, Inc. , 532 F.3d 364, 372 (5th Cir. 2008) (citing Planned Parenthood of Hous. & S.E. Tex. v. Sanchez , 403 F.3d 324, 329 (5th Cir. 2005) ). Because a preliminary injunction is an "extraordinary remedy," the movant must "clearly carr[y] the burden as to all four elements."

557 F.Supp.3d 815

Guy Carpenter & Co., Inc. v. Provenzale , 334 F.3d 459, 464 (5th Cir. 2003) (citing Kern River Gas Transmission Co. v. Coastal Corp. , 899 F.2d 1458, 1462 (5th Cir. 1990) ).

B. Success on the Merits

The United States seeks a preliminary injunction on the basis that the Order violates the Supremacy Clause of the United States Constitution and the related doctrine of intergovernmental immunity. The United States argues that Order creates an obstacle to the enforcement of federal immigration law because it impermissibly requires state agents to make federal immigration determinations and disrupts the federal government's ability to transport noncitizens. Mot. at 7–14. Because the Order purports to regulate federal actors executing national policy, the United States also argues that it is invalid under the doctrine of intergovernmental immunity. Mot. at 14–17. For the reasons below, the United States has established a substantial likelihood of success on merits on the grounds that the Order stands as an obstacle to federal immigration enforcement.

1. Obstacle preemption

First, the United States argues that the Order is preempted because it obstructs the enforcement of federal immigration law in violation of the Supremacy Clause. "As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States" by preempting state law. Gregory v. Ashcroft , 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). State laws are preempted by Congress when "compliance with both federal and state regulations ... is a physical impossibility." Fla. Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 142–43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (citations omitted). The doctrine also preempts state laws that stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ; see also Crosby v. Nat'l Foreign Trade Council , 530 U.S. 363, 372–73, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). To determine whether a state law creates an impermissible obstacle, courts must "examin[e] the federal statute as a whole and identify its purpose and intended effects." Crosby , 530 U.S. at 373, 120 S.Ct. 2288.

In this case, the United States argues that the Order creates impermissible obstacles to the enforcement and operation of the federal immigration laws. The Constitution gives "[t]he Government of the United States [ ] broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States , 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ; see also Hines , 312 U.S. at 68, 61 S.Ct. 399 ("The power to restrict, limit, [and] regulate ... aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation [;] ... whatever power a state may have is subordinate to supreme national law."). Grounded in this authority, the Immigration and Nationality Act of 1956 ("INA"), 8 U.S.C. § 1101, et. seq. is a " ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ [that] set[s] ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’ " Chamber of Com. of the U.S. v. Whiting , 563 U.S. 582, 587, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011) (quoting DeCanas v. Bica , 424 U.S. 351, 353, 359, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976) ). The INA provides standards governing alien registration, specifies which aliens may be removed, creates procedures for removal and mechanisms for noncitizens to seek discretionary relief, and vests broad

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