On Wednesday, Texas reported more than 10,000 new Covid-19 cases — the highest one-day total for the nation’s second-largest state since Feb. 9. On the same day, Texas Gov. Greg Abbott signed a new executive order that, he claimed, would help counter the surge.
Abbott’s order restricts the “ground transportation of migrants who pose a risk of carrying COVID-19 into Texas communities” by authorizing Texas law enforcement officers to “stop any vehicle upon reasonable suspicion” of violating the executive order.
The accompanying news release did not leave the link between the two issues to readers’ imaginations: “The dramatic rise in unlawful border crossings has also led to a dramatic rise in COVID-19 cases among unlawful migrants who have made their way into our state,” Abbott was quoted as saying, “and we must do more to protect Texans from this virus and reduce the burden on our communities.”
If Abbott is looking for someone to blame for Texas’s latest Covid surge, it might behoove him to find a mirror.
Abbott’s executive order is, at least publicly, meant to tie Texas’s Covid surge to the Biden administration’s immigration policies. In a second release issued Thursday, Abbott was even more direct: “The current crisis at our southern border, including the overcrowding of immigration facilities and the devastating spread of COVID-19 that the influx of non-citizens is causing, is entirely the creation of the Biden Administration and its failed immigration policies.”
There are at least three problems here. First, the actual executive order that he signed doesn’t do anything like what the news release claims it does. Second, what little it does do would, if ever enforced, be equal parts unlawful and ineffective. Third, and most significantly, it’s a transparently cynical effort from Abbott to deflect attention away from his responsibility for the renewed surge of Covid cases in Texas — a state in which local governments, public schools and universities are all prohibited from imposing mask mandates or, as of Thursday, requiring vaccinations.
Simply put, if Abbott is looking for someone to blame for Texas’s latest Covid surge, it might behoove him to find a mirror.
The executive order that Abbott actually signed does not, in fact, authorize all Texas law enforcement officers to stop any individual suspected of being an undocumented immigrant carrying Covid-19 anywhere in the state. Rather, the order is directed solely at the transportation of undocumented immigrants from federal immigration facilities to shelters, hospitals and other places where they can be safely housed while their fate is determined. (That includes being moved for Covid testing.)
Indeed, the order does not prevent federal law enforcement officers themselves from moving these people from immigration facilities to other locations; it merely prevents other federal actors, or private parties, including those operating under government contracts, from doing so.
That’s a big deal for charities and other nongovernmental organizations currently assisting the Biden administration along the Texas-Mexico border. But contra the clear insinuation of Abbott’s news release, it’s not open season for racial profiling on Texas roadways.
That the executive order doesn’t authorize Texas officers to stop all “migrants who pose a risk of carrying COVID-19 into Texas communities” doesn’t mean that it’s lawful. To the contrary, the order still runs headlong into settled constitutional principles of federal pre-emption. As I wrote last month, the Supreme Court has long been clear that immigration policy is the purview of the federal government — and that state laws that make it harder for the federal government to carry out its policies necessarily violate the supremacy clause. As Justice Anthony Kennedy wrote for the court in 2012, states “may have understandable frustrations with the problems caused by illegal immigration while that process continues, but [they] may not pursue policies that undermine federal law.”
Attorney General Merrick Garland explained as much on Thursday in a letter to Abbott, listing numerous ways this order directly interferes with federal immigration enforcement — and indirectly hinders the implementation of federal law. His threat — to “pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government” if the order is not rescinded — does not seem like an empty one. Abbott’s order also wouldn’t be effective — at least if the goal really is to reduce the spread of Covid in Texas. As Garland’s letter noted, “the Order would exacerbate and prolong overcrowding in facilities and shelters” and make it harder for people to actually get tested for Covid before being released. And that assumes Texas officers even enforce it. Given the obvious risks to their health of pulling over buses containing dozens of individuals who may or may not be infected, there might be more than a little reluctance to go the extra mile to ensure its implementation. But if the order is more modest than Abbott proclaimed and unlawful and ineffective and unlikely to be enforced, why go through the motions? This is where the cynicism comes in. After all, this is the same governor who has prohibited every state entity — including my employer, the University of Texas — from imposing mask mandates. On Thursday, he signed a new executive order that not only bans any entity receiving state funds from requiring Covid vaccinations of its employees or customers, but that also prohibits local governments from taking additional suppression measures even if their hospitalization rates pass 15 percent. So it’s a little hard to take Abbott seriously when he claims his migrant transportation ban is necessary to “do more to protect Texans from this virus” when he spends so much time preventing Texans from protecting each other. Rather, Abbott appears to be using the surge in Covid cases in Texas as a new justification for a monthslong battle that he’s been waging against the Biden administration’s immigration policies. That approach isn’t going to succeed in court. But for a governor with an eye on the 2024 presidential election, the only court that matters here may be the court of public opinion. And in that tribunal, at least, it’s all too easy for him to make such an objectively weak case. Abbott is hoping he can shift responsibility for the resurgence of Covid away from elected officials who did nothing to mitigate it, and perhaps even aided its spread, onto those in the worst position to defend themselves.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
