United States v. Abbott ( 2023 )

Case: 22-50212 Document: 00516947006 Page: 1 Date Filed: 10/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 27, 2023
No. 22-50212
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Greg Abbott, in his official capacity as Governor of the State of Texas,
Defendant—Appellant,
______________________________
Annunciation House; Angry Tias And Abuelas of the
Rio Grande Valley; Jennifer Harbury; FIEL Houston,
Plaintiffs—Appellees,
versus
Greg Abbott, in his official capacity as Governor of the State of Texas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 3:21-CV-173, 3:21-CV-178
______________________________
Before Stewart, Willett, and Oldham, Circuit Judges.
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Andrew S. Oldham, Circuit Judge:
In July 2021, Texas Governor Greg Abbott issued an executive order
that prohibited private individuals from providing ground transportation to
migrants who were previously detained or subject to expulsion. The United
States brought a lawsuit against Governor Abbott and the State of Texas,
arguing that the executive order was preempted by federal law. Three
nonprofit organizations and a retired lawyer also brought a § 1983 suit against
the Governor and the Director of the Texas Department of Public Safety
(“DPS”). The defendants moved to dismiss the suit brought by the private
plaintiffs, arguing in part that the plaintiffs lacked standing and the suit
against the Governor was barred by sovereign immunity. The district court
rejected these arguments, and Governor Abbott appealed.
We agree with the Governor that sovereign immunity bars the lawsuit
brought by the private plaintiffs. We reverse and remand with instructions to
dismiss the suit against the Governor.
I.
On July 28, 2021, Texas Governor Greg Abbott issued Executive
Order GA-37 pursuant to his authority under the Texas Disaster Act of 1975.
The Disaster Act empowers the Governor to declare a state of disaster and
gives him certain attendant powers. For example, the Governor has the
authority to “meet[] . . . the dangers to the state and people presented by
disasters,” Tex. Gov’t Code § 418.011(1), to “issue executive orders,”
id. § 418.012, and to “control ingress and egress to and from a disaster area
and the movement of persons . . . in the area,” id. § 418.018(c).
The Governor issued GA-37 pursuant to two disaster declarations.
The first was the COVID-19 disaster declaration issued in March 2020. The
second was the border-security disaster declaration issued in May 2021 in
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response to the influx of people illegally crossing the Texas-Mexico border.1
Paragraph 1 of the Executive Order prohibits private citizens from
transporting migrants “who have been detained by [U.S. Customs and
Border Protection] for crossing the border illegally or who would have been
subject to expulsion under [federal law].” Tex. Exec. Order GA-37, at
2. Paragraphs 2 and 3 charge DPS with enforcement power “to stop any
vehicle upon reasonable suspicion of a violation,” “to reroute such a vehicle
back to its point of origin or a port of entry if a violation is confirmed,” and
“to impound a vehicle that is being used to transport migrants in violation of
paragraph 1, or that refuses to be rerouted.” Ibid.
The United States filed a suit against Governor Abbott and the State
of Texas and obtained a temporary restraining order. A group of private
plaintiffs also filed suit against Governor Abbott and DPS Director McCraw
under 42 U.S.C. § 1983, alleging that GA-37 violated the Supremacy Clause
and the Fourth and Fourteenth Amendments. The district court
consolidated the two cases for pretrial purposes. After consolidation, the
court granted a preliminary injunction, preventing “defendants, their agents,
officers, and employees, and all other persons and entities in active concert
or participation with them . . . from taking any action to enforce the executive
order.” ROA.969. To date, the Executive Order has yet to be enforced by
DPS or any arm of the State.
Governor Abbott filed two motions to dismiss: one against the federal
government’s suit and one with Director McCraw against the private
_____________________
1
While the COVID-19 disaster declaration has since expired, the border-security
disaster declaration remains in effect. The parties agree that the case is not moot because
GA-37 remains in effect pursuant to the latter declaration. As the Governor pointed out in
his supplemental brief, “it is unclear whether the Governor even could take steps to modify
GA-37, given the preliminary injunction that remains in effect against him.” Tan Br. 1.
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plaintiffs’ suit. The district court responded with two separate orders. It
denied the motion to dismiss the federal government’s suit in one; and it
granted in part and denied in part the motion to dismiss the private plaintiffs’
suit in the other. In the latter order, the district court dismissed the private
plaintiffs’ Supremacy Clause claim. But the court denied the motion to
dismiss their Fourth Amendment claim, rejecting defendants’ standing and
sovereign immunity arguments. Governor Abbott appealed only the district
court’s order dealing with the private plaintiffs’ claims. The United States
did not file a brief before this court. And Director McCraw did not join the
appeal. Accordingly, in this interlocutory appeal, the only questions properly
before us are whether the private plaintiffs have Article III standing to bring
their Fourth Amendment claim against Governor Abbott and whether Ex
parte Young, 209 U.S. 123 (1908), permits this suit against him.2 See Whole
Woman’s Health v. Jackson, 595 U.S. 30, 37–39 (2021). Because our holding
on sovereign immunity is sufficient to eliminate federal jurisdiction, we do
not reach the issue of whether the individual plaintiffs have Article III
standing to sue the Governor. See Sinochem Int’l Co. v. Malay. Int’l Shipping,
549 U.S. 422, 431 (2007).
II.
Ex parte Young does not afford plaintiffs relief against the Governor.
That is because (A) plaintiffs cannot satisfy Ex parte Young’s requirements;
_____________________
2
Private plaintiffs brought their lawsuit under 42 U.S.C. § 1983, not Ex parte
Young. The lawsuit was brought against Governor Abbott in his official capacity, however,
thus implicating the Eleventh Amendment and state sovereign immunity. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). Section 1983 obviously does not
abrogate that constitutional immunity. See Quern v. Jordan, 440 U.S. 332, 341 (1979). To
pursue their § 1983 claims, plaintiffs must rely on the narrow exception to state sovereign
immunity provided in Ex parte Young. See Pennhurst, 465 U.S. at 102–03.
4
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(B) our precedent is consistent with this outcome; and (C) Texas
Government Code § 411.012 does not compel the opposite result.
A.
Plaintiffs cannot sue the Governor under Ex parte Young. Sovereign
immunity forbids suits against a State and its officers in their official
capacities. See Fitts v. McGhee, 172 U.S. 516, 524–27 (1899). But since the
Founding, the Supreme Court has allowed some suits against state officers to
proceed. See, e.g., Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 857 (1824);
Davis v. Gray, 83 U.S. (16 Wall.) 203, 220–21 (1872). Albeit not consistently.
See, e.g., Governor of Ga. v. Madrazo, 26 U.S. (1 Pet.) 110, 123–24 (1828)
(“[W]here the chief magistrate of a state is sued, not by his name, but by his
style of office, and the claim made upon him is entirely in his official
character, we think the state itself may be considered as a party on the
record.”); Ex parte Ayers, 123 U.S. 443 (1887); Fitts, 172 U.S. 516. That is,
until Ex parte Young.
Ex parte Young “recognized a narrow exception” to sovereign
immunity for “certain private parties to seek judicial orders in federal court
preventing state executive officials from enforcing state laws that are
contrary to federal law.” Whole Woman’s Health, 595 U.S. at 39. This narrow
exception covers suits for prospective relief against state officers who “are
clothed with some duty in regard to the enforcement of the laws of the state,
and who threaten and are about to commence” proceedings to enforce an
unlawful act against certain affected parties. See Ex parte Young, 209 U.S. at
155–56. Otherwise, the suit “is merely making [the officer] a party as a
representative of the state, and thereby attempting to make the state a party.”
Id. at 157; see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n
official-capacity suit is, in all respects other than name, to be treated as a suit
against the [state governmental] entity.” (citation omitted)).
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Plaintiffs cannot satisfy these requirements to bring an Ex parte Young
suit. That is because (1) the Governor is not charged with enforcement of the
order; (2) plaintiffs identify no relevant, threatened future enforcement
action; and (3) plaintiffs seek recourse for the Governor’s past conduct.
1.
First, Ex parte Young only permits injunctions against state officials
who “have some connection with the enforcement of the act,” 209 U.S. at
157, or are “specially charged with the duty to enforce” the law at issue, id.
at 158. The officer must have “the particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty.” Morris v.
Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quotation omitted). After all,
“[t]here is a wide difference between a suit against individuals, holding
official positions under a state, to prevent them, under the sanction of an
unconstitutional statute, from committing by some positive act a wrong or
trespass, and a suit against officers of a state merely to test the
constitutionality of a state statute.” Fitts, 172 U.S. at 529–30.
Here, GA-37 expressly tasks someone other than the Governor with
its enforcement. As we have said, where the challenged law “makes clear that
[another agency] is the agency responsible for the [law’s] administration and
enforcement,” only that agency is a proper defendant under Ex parte Young.
Morris, 739 F.3d at 746; see also City of Austin v. Paxton, 943 F.3d 993, 998
(5th Cir. 2019); Lewis v. Scott, 28 F.4th 659, 664 (5th Cir. 2022) (holding that
the challenged laws “themselves refute any notion that the Secretary
enforces them” because they plainly task other officials with enforcement).
Those rules govern here. GA-37 provides:
I, Greg Abbott, Governor of Texas, by virtue of the power and
authority vested in me by the Constitution and laws of the State
of Texas, do hereby order the following on a statewide basis
effective immediately:
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1. No 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 [U.S. Customs
and Border Protection] for crossing the border illegally or who
would have been subject to expulsion under [federal law].
2. The Texas Department of Public Safety (DPS) is directed 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.
3. DPS is authorized to impound a vehicle that is being used to
transport migrants in violation of paragraph 1, or that refuses
to be rerouted in violation of paragraph 2.
Tex. Exec. Order GA-37, at 2 (emphasis added). Because GA-37 tasks
DPS alone “with enforcing the challenged law,” and DPS is a separate entity
from the Governor, “our Young analysis ends” for the Governor. City of
Austin, 943 F.3d at 998; see also Morris, 739 F.3d at 746.
Even if we looked beyond the plain text of GA-37, plaintiffs identify
no law that gives the Governor the particular duty to enforce this order. They
point to Texas Government Code §§ 411.012, 418.011, 418.012, 418.015(c),
418.018(c), and 437.002(a). None gives him a duty to enforce this order. See
Tex. Gov’t Code § 411.012 (“The governor may assume command and
direct the activities of the commission and [DPS] during a public disaster . . .
.”); id. § 418.011 (providing that the Governor “is responsible for meeting .
. . the dangers to the state and people presented by disasters”); id. § 418.012
(“[T]he governor may issue executive orders, proclamations, and
regulations and amend or rescind them.”); id. § 418.015(c) (designating the
Governor “commander in chief of state agencies, boards, and commissions
having emergency responsibilities” during disasters); id. § 418.018(c) (“The
governor may control ingress and egress to and from a disaster area and the
movement of persons and the occupancy of premises in the area.”); id. §
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437.002(a) (“The governor is the commander-in-chief of the Texas military
forces, except any portion of those forces in the service of the United
States.”). “As a result, Governor [Abbott] is not a proper defendant.”
Morris, 739 F.3d at 746.
2.
Second, Ex parte Young’s narrow exception traditionally applies to
suits against defendants “who threaten and are about to commence
proceedings, either of a civil or criminal nature.” Ex parte Young, 209 U.S. at
156; see also Whole Woman’s Health, 595 U.S. at 47–48 (only allowing suits to
proceed against licensing officials who have a statutory duty to institute
disciplinary actions); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382
(1992); Prentis v. Atl. Coast Line Co., 211 U.S. 210 (1908). And these
traditional principles constrain us. See Whole Woman’s Health, 595 U.S. at
44. The idea that the Governor himself has threatened and is about to pull
over plaintiffs and initiate criminal proceedings merely by issuing GA-37 is
fanciful. Plaintiffs do not even raise a “credible threat” that the Governor
will institute such an action. Id. at 47; see also Younger v. Harris, 401 U.S. 37,
42 (1971) (“[Plaintiffs] do not claim that they have ever been threatened with
prosecution, that a prosecution is likely, or even that a prosecution is
remotely possible.”). His issuance of GA-37 and his public statements cannot
“establish[] authority to enforce a law, or the likelihood of his doing so, for
Young purposes.” Tex. Democratic Party v. Abbott (TDP II), 978 F.3d 168, 181
(5th Cir. 2020) (quoting In re Abbott, 956 F.3d 696, 709 (5th Cir. 2020),
vacated on other grounds by Planned Parenthood Ctr. for Choice v. Abbott, 141 S.
Ct. 1261 (2021)).
True, plaintiffs need not show that the Governor, like Attorney
General Young, is so intent on bringing enforcement proceedings that he has,
in violation of a court-issued injunction, obtained and served upon an
individual plaintiff a court order mandating compliance with an allegedly
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unconstitutional state law; and only a stint in federal prison in contempt of
court can stop him from instituting enforcement proceedings. See Ex parte
Young, 209 U.S. at 126–27, 134; Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.
247, 254 (2011). But plaintiffs do need to identify at least some enforcement
action that the Governor will initiate for this court to enjoin. See Whole
Woman’s Health, 595 U.S. at 43. After all, we can only “enjoin named
defendants from taking specified unlawful actions.” See id. at 44 (emphasis
added).
Plaintiffs cannot identify such an action. The order plainly delegates
all remaining enforcement discretion to DPS. It is DPS who must determine
whether “reasonable suspicion” exists to stop a vehicle, DPS who must
determine if a violation has occurred, and DPS who must then decide
whether to reroute or impound a vehicle. Tex. Exec. Order GA-37, at 2.
And as Director McCraw testified, it is DPS who has the discretion to draft
specific procedures to “govern enforcement of the order” before it will
commence enforcement. ROA.169. The Governor has asserted no ongoing
authority over DPS. Plaintiffs’ reference to his enforcement of other orders
in the past does not prove that he has or is likely to do the same here. See City
of Austin, 943 F.3d at 1002. And any “vague allegation[s]” that the Governor
might take control of DPS, strip away DPS’s discretion, direct the actions of
DPS troopers, or enforce the law himself have no factual support. Boise
Artesian Hot & Cold Water Co. v. Boise City, 213 U.S. 276, 285 (1909). So any
enforcement injury at his hands is a “conjectural injury [that] cannot warrant
equitable relief.” Morales, 504 U.S. at 382.
3.
Third, Ex parte Young only affords prospective relief to stop future
harms. See Va. Off. for Prot. & Advoc., 563 U.S. at 255; Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (requiring that the
complaint allege that the defendant is engaging in an “ongoing violation of
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federal law and seeks relief properly characterized as prospective” (quotation
omitted)); Papasan v. Allain, 478 U.S. 265, 277–78 (1986) (noting a mere
showing that a “federal law has been violated at one time or over a period of
time in the past” is insufficient to bring an Ex parte Young suit). Ex parte
Young cannot be used to attack the Governor’s past actions. And even
assuming the Governor has directed DPS to pull over plaintiffs via this
Executive Order, that instruction is in the past. DPS alone will enforce the
order in the future. Relief against the Governor’s issuance of the order is
purely retrospective, plainly falls outside the bounds of Ex parte Young, and
hence is barred by the State’s sovereign immunity. See Verizon Md., Inc., 535
U.S. at 645–46; Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d
460, 473 (5th Cir. 2020) (en banc) (holding that “voiding” a state order “is
quintessentially retrospective and thus out of bounds under Young”
(quotation omitted)).
B.
This application of Ex parte Young is consistent with our court’s
precedent. We have held multiple times that parties cannot bring pre-
enforcement challenges against the Governor when he merely issues
executive orders or proclamations under the Texas Disaster Act. See, e.g.,
TDP II, 978 F.3d at 180; Mi Familia Vota v. Abbott, 977 F.3d 461, 467 (5th
Cir. 2020); Tex. Democratic Party v. Abbott (TDP I), 961 F.3d 389, 400 (5th
Cir. 2020); In re Abbott, 956 F.3d at 709.
Mi Familia Vota is on point. In that case, Governor Abbott issued an
executive order, GA-29, requiring masks in certain public places pursuant to
his authority to issue executive orders during disasters under Texas
Government Code § 418.012—the same statutory provision at issue in this
case. See Mi Familia Vota, 977 F.3d at 464, 467. We held that plaintiffs could
not sue the Governor to enjoin enforcement of GA-29 because Ex parte Young
only permits suits against state officials who have “some connection with the
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enforcement” of the allegedly unconstitutional law. Id. at 467 n.17 (quoting
Ex parte Young, 209 U.S. at 157). Such connection was noticeably absent in
Mi Familia Vota. We held that any statutory authority the Governor had to
issue the executive order did not include “the power to enforce it.” Ibid.(citation omitted). Rather, “[e]nforcement actions would be undertaken by
local authorities,” so only those officials could be sued. Ibid.; see also In re
Abbott, 956 F.3d at 709 (same); Tex. All. for Retired Ams. v. Scott, 28 F.4th
669, 672 (5th Cir. 2022) (holding the Texas Secretary of State was not a
proper defendant because “enforcement of HB 25 [fell] to local election
officials”); Lewis, 28 F.4th at 664 (similar). There’s no daylight between Mi
Familia Vota and this case. Both involve the Texas Disaster Act, executive
orders, and lower-tier officials charged with enforcement. And the plaintiffs
have not shown that the Governor did anything more than promulgate GA-
37. Without more, this case is foreclosed by Mi Familia Vota.
C.
The plaintiffs attempt to sidestep all of this by claiming that GA-37 is
different. See Red Br. 11–16, 19–23. Specifically, the plaintiffs point to
§ 411.012 of the Texas Government Code, which is mentioned nowhere in
GA-37. Still, the plaintiffs claim that § 411.012 gives the Governor the power
to commandeer DPS during a disaster; that the Governor could exercise that
power; that he could “granularly” exercise it to order arrests for unspecified
violations of GA-37, Red Br. 2; and that those perhapses and maybes combine
to make Governor Abbott uniquely amenable to suit under Ex parte Young.
We are unpersuaded. First, § 411.012 does not imbue the Governor
with the “particular duty to enforce” the Executive Order. Tex. All. for
Retired Ams., 28 F.4th at 672 (emphasis added) (quotation omitted).
Section 411.012 says the Governor “may assume command and direct the
activities of” DPS in a disaster. Tex. Gov’t Code § 411.012 (emphasis
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added). The Governor does not automatically take control of DPS whenever
he issues a disaster declaration. See Biden v. Texas, 142 S. Ct. 2528, 2541
(2022) (“The statute says ‘may.’ And ‘may’ does not just suggest discretion,
it clearly connotes it.” (emphasis in original and quotation omitted)). Thus,
§ 411.012 does not vest the Governor with the particular duty to commandeer
DPS to enforce the order in question.
Second, even if the Governor had a particular duty to enforce GA-37
by commandeering DPS, he has not “demonstrated [a] willingness to
exercise that duty.” City of Austin, 943 F.3d at 999 (quotation omitted). The
Governor only issued the Executive Order. And we know from Mi Familia
Vota and In re Abbott that the Governor’s mere issuance of an executive order
is not enough to sue him, regardless of who is on the receiving end of that
order.
Third, the Governor’s enforcement directive to DPS should have
been sufficient to remove the Governor from this suit. As noted above, when
a challenged law tasks another agency with enforcement, our Ex parte Young
inquiry ends. See Morris, 739 F.3d at 746; City of Austin, 943 F.3d at 998. And
here, GA-37 specifies that another agency—DPS—“is directed” to enforce
the order. Tex. Exec. Order GA-37, at 2.
Fourth, if the plaintiffs want to show that the Governor silently
invoked § 411.012 and implicitly commandeered a state agency, they must
plead facts to support that inference. See City of Austin, 943 F.3d at 1001–02.
Plaintiffs have not met their burden. To the contrary, DPS Director McCraw
attested that the Governor has not even communicated with DPS about GA-
37—much less taken control of DPS. And as Director McCraw noted, DPS
retains the “responsibility to draft, design, and implement procedures for
enforcement in response to executive orders [like GA-37] that involve DPS,”
and DPS “intends to draft procedures to govern enforcement of the order”
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before it commences any enforcement actions. ROA.168–69. Since “GA-37
tasks DPS with enforcement of the order,” DPS has discretion over how the
order will be enforced. ROA.169. Thus, the facts do not support this
assumption-of-power theory.3
* * *
Given our constitutionally limited role to adjudicate the “Cases” and
“Controversies” before us, U.S. Const. art. III, § 2, we decide this case
as we have decided its predecessors: Sovereign immunity bars the private
plaintiffs’ suit against the Governor.
Accordingly, we REVERSE and REMAND with instructions to
DISMISS the plaintiffs’ suit against the Governor.
_____________________
3
For this reason, we decline plaintiffs’ alternative suggestion that we remand for a
jurisdictional fishing expedition into the Governor’s relationship with DPS during a
declared disaster.
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Carl E. Stewart, Circuit Judge, dissenting:
With great respect to my colleagues, I am unpersuaded by Governor
Abbott’s invocation of sovereign immunity within the unique context of this
appeal.1 Therefore, I respectfully dissent for the reasons given below.
I.
The Texas Legislature passed the Texas Disaster Act of 1975 and
granted the Governor of Texas broad emergency powers to direct resources
and state agencies during declared emergencies and natural disasters.2 The
Governor’s proclamations and executive orders issued pursuant to the
Disaster Act “have the force and effect of law.” 3 Governor Abbott declared
a state of disaster due to the COVID-19 pandemic in March of 2020 and
renewed the proclamation each month until June of 2023.4 On May 31, 2021,
Governor Abbott declared an immigration disaster in Texas’s counties along
the U.S.-Mexico border.5 His border-security proclamation specifically cited
_____________________
1
This court has consistently noted that there is “significant overlap between
Article III jurisdiction, Ex parte Young, and equitable relief.” Air Evac Ems, Inc. v. Tex. Dep’t
of Ins., 851 F.3d 507, 520 (5th 2017) (quoting NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389,
394 n.5 (5th Cir. 2015)).
2
See generally Tex. Gov’t Code ch. 418.
3
Id. at § 418.012. Absent a disaster, the Governor’s powers are strictly cabined by
the Texas Constitution. See generally, A.J. Thomas Jr. & Ann Van Wynen Thomas, The
Texas Constitution of 1876, 35 Tex. L. Rev. 907, 914 (1957).
4
See Patrick Svitek, Gov. Greg Abbott says he won’t renew his COVID-19 disaster
declaration later this week, Tex. Trib., June 12, 2023,
https://www.texastribune.org/2023/06/12/greg-abbott-covid-disaster-renew/.
5
See Proclamation by the Governor of the State of Texas (May 31, 2021),
https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-
31-2021.pdf [https://perma.cc/N5UT-PT9Y]. The Governor renewed this declaration on
June 11. See Proclamation by the Governor of the State of Texas (June 11, 2023),
https://gov.texas.gov/uploads/files/press/DISASTER_border_security_renewal_IMA
GE_06-11-2023.pdf [https://perma.cc/E52M-U5UJ].
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ongoing criminal activity arising out of “the ongoing surge of individuals
unlawfully crossing the Texas-Mexico border.”6 Both disaster declarations
were followed by numerous executive orders.
One of the many orders that originated from these disaster
declarations is Executive Order GA-37 (“GA-37”), titled “Relating to the
transportation of migrants during the COVID-19 disaster.”7 On July 28,
2021, the Governor issued GA-37 in response to the influx of unauthorized
migrants crossing into the Texas border counties. It purports to limit civilian
assistance to certain groups of noncitizens by prohibiting them from
transporting individuals who may be unauthorized migrants. The plaintiffs
allege that the order subjects drivers to seizures in the form of prolonged
investigatory stops and/or the possible impounding of their vehicle. In GA-
37, Governor Abbott orders that:
1. No 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 [Customs
and Border Protection] for crossing the border illegally or
who would have been subject to expulsion under the Title
42 order.8
_____________________
6
See Proclamations, supra note 5.
7
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
[https://perma.cc/Z85K-5KEX].
8
The “Title 42 order” referenced here was issued by the Centers for Disease
Control and Prevention. It “suspends the introduction of certain persons from countries
where an outbreak of a communicable disease exists.” See Order Suspending Introduction
of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg.
17,060 (Mar. 26, 2020).
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2. The Texas Department of Public Safety (DPS) is directed
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.
3. DPS is authorized to impound a vehicle that is being used
to transport migrants in violation of paragraph 1, or that
refuses to be rerouted in violation of paragraph 2.
Tex. Exec. Order No. GA-37 (emphasis added). The plaintiffs, two
nongovernmental organizations and a retired civil rights lawyer who engage
in mutual aid for unauthorized migrants, filed suit alleging that GA-37
violates the Fourth Amendment. Upon Governor Abbott’s motion to
dismiss, the district court found that the plaintiffs had standing to sue and
were entitled to the Ex parte Young exception from sovereign immunity based
on the facts alleged.9 See 209 U.S. 123, 155–56 (1908).
II.
The doctrine of sovereign immunity, derived from the Eleventh
Amendment, prohibits the advancement of lawsuits against a State and its
officers in their official capacities without their consent. Va. Off. for Prot. &
Advoc. v. Stewart, 563 U.S. 247, 253 (2011). However, the Supreme Court
created an exception to sovereign immunity in Young. 209 U.S. at 155–56.
Through this exception, plaintiffs may bring “suits for injunctive or
declaratory relief against individual state officials acting in violation of federal
law.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013). An appropriate
defendant in such a suit is a state official that has some connection to the
challenged law’s enforcement. See Young, 209 U.S. at 155–57.
_____________________
9
See United States v. Texas, Cause No. EP-21-CV-173-KC, 2022 WL 868717, at *6–
8 (W.D. Tex. Feb. 17, 2022).
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Notably, this court has determined that “[t]he required connection is
not merely the general duty to see that the laws of the state are implemented,
but the particular duty to enforce the [law] in question and a demonstrated
willingness to exercise that duty.” Morris v. Livingston, 739 F.3d 740, 746 (5th
Cir. 2014). Our en banc court has further explained that the Young exception
may apply where “the defendant state official . . . at least [has] the ability to
act.” Okpalobi v. Foster, 244 F.3d 405, 421 (5th Cir. 2001). Other panels of
this court have established that plaintiffs satisfy this threshold where a
“scintilla of ‘enforcement’ by the relevant state official with respect to the
challenged law” exists. City of Austin v. Paxton, 943 F.3d 993, 1000 (5th Cir.
2019). Furthermore, “[t]he text of the challenged law need not actually state
the official’s duty to enforce it” for the Young exception to apply. Id. at 997–
98. However, we have also previously determined that the threshold to apply
the Young exception is not satisfied where the plaintiffs only allege that the
Governor promulgated the challenged executive order. See Mi Familia Vota
v. Abbott, 977 F.3d 461, 469 (5th Cir. 2020). Our panels have reasoned that
although the Governor had the authority to issue those specific executive
orders, he generally lacked the authority to enforce them through that act
alone. See id. In my view, however, the specific executive order and the
relevant provisions of the Texas Government Code at issue in this case
surpass the mere “scintilla of ‘enforcement’” required by our jurisprudence.
17
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III.
The relevant inquiries here are whether, accepting all well-pleaded
facts as true and viewing those facts in the light most favorable to the
plaintiffs, Governor Abbott (1) is able to enforce GA-37 and (2) is willing to
do so. See Morris, 739 F.3d at 746. My conclusion is that the answer to both
inquiries is yes. Governor Abbott argues that no provision of the Texas
Government Code bestows on him the duty to enforce GA-37. However,
Texas Government Code § 411.012 provides him the authority to “assume
command and direct the activities of the [public service] commission and
[DPS] during a public disaster.” At the very least, this puts him on equal
footing with the Director of DPS to command DPS officers to carry out his
policies set under his emergency powers pursuant to the Disaster Act.10 In
actuality, the Governor’s powers are at their zenith during disasters.
In exercising these heightened powers, Governor Abbott issued GA-
37. The order’s plain language leaves little to the imagination in terms of
enforcement. In Paragraphs 2 and 3, the Governor directs, or more
befittingly, compels, DPS officers to take the specific actions that the
plaintiffs allege constitute violations of the Fourth Amendment. As stated
above, the plaintiffs need only demonstrate at this stage that Governor
Abbott has the authority to enforce the alleged unconstitutional order and a
willingness to do so. See Okpalobi, 244 F.3d at 421; City of Austin, 943 F.3d at
1002. Sections 418.012, 418.015(c), and 418.018(c) of the Texas Government
Code detail the Governor’s authority during declared disasters to command
_____________________
10
See Tex. Exec. Order No. GA-37, p. 2. Furthermore, Governor Abbott
assumes a far more powerful position as he has the authority to command and direct the
DPS and the Public Service Commission that oversees it. The Director of the DPS is
subject to removal by the Commission. See Tex. Gov’t Code § 411.005 (“The director
serves until removed by the commission.”).
18
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DPS and his authority to control the ingress or egress of persons through the
area of a declared disaster. When read together, these provisions
demonstrate that he has a sufficient connection to the enforcement of the
alleged unconstitutional order to merit the application of the Young
exception. This is wholly unlike the case of Okpalobi v. Foster, where the
Governor was “powerless to enforce [the challenged statute] against the
plaintiffs” because the statute only provided a private civil right of action
against doctors that carried out abortions. 244 F.3d at 426; see also id. at 421–
23. Furthermore, none of our other cases regarding the Governor’s prior
disaster executive orders implicated his direct exercise of the command
authority over the officers and agents that carry out his policies.
For instance, this court held that Governor Abbott did not play any
part in enforcing Executive Order GA-29, the COVID-19 mask mandate at
issue in Mi Familia Vota v. Abbott. See 977 F.3d at 467–69. There, several
nongovernmental organizations sued Governor Abbott and the Texas
Secretary of State, alleging that Executive Order GA-29’s mask mandate
exemption as to polling centers and several provisions of the Texas Election
Code created voting conditions that infringed on Black and Latino
communities’ right to vote.11 In his mask mandate order, Governor Abbott
provided that local officials “can and should enforce this executive order.”12
Reviewing the district court’s dismissal of the organizations’ claims, the
panel determined that “[t]here is no suggestion in any statutes or regulations
that Governor Abbott has authority to enforce or [] play[s] a role in
enforcing” GA-29. Mi Familia Vota, 977 F.3d at 467–68. Thus, the panel
_____________________
11
Mi Familia Vota, 977 F.3d at 463–66.
12
Tex. Exec. Order No. GA-29 (July 2, 2020),
https://gov.texas.gov/uploads/files/press/EO-GA-29-use-of-face-coverings-during-
COVID-19-IMAGE-07-02-2020.pdf [https://perma.cc/T6GA-RKJQ].
19
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concluded that Governor Abbott was immune to suit because Texas law
vested local officials with enforcement of the contested election code
provisions.13
Several key distinctions exist between the challenged orders in Mi
Familia Vota and the instant case. First, none of the election code provisions
at issue in Mi Familia Vota imbued the Governor with any enforcement
powers.14 None of the challenged provisions even referenced the Governor.
Governor Abbott’s ability to compel DPS to enforce state laws removes this
case from the class of cases where we have held that the Governor was
immune from suit.15 Second, the Mi Familia Vota plaintiffs only argued that
Texas Government Code §§ 418.011 and 418.012 provided Governor Abbott
with sufficient connection to the enforcement of the alleged unconstitutional
executive order. Here, Plaintiffs cogently allege that sections 418.011,
418.012, 418.015(c), and 418.018(c) shroud the Governor with the authority
to enforce GA-37. Third, Governor Abbott’s abdication of enforcement
authority to local officials in Mi Familia Vota was clear from his request that
_____________________
13
Id. at 469. The same was true in Texas Democratic Party v. Abbott, where this court
found that there were no Election Code provisions “that outline[] a relevant enforcement
role for Governor Abbott.” 961 F.3d 389, 400 (5th Cir. 2020); see also id. at 401 (“[A]s
discussed above, because the Governor ‘is not statutorily tasked with enforcing the
challenged law[s], . . . our Young analysis” ends).
14
See Tex. Election Code §§ 43.007, 64.009, 85.062, 85.063.
15
Mi Familia Vota, 977 F.3d at 467–68. But see Okpalobi, 244 F.3d at 421 (holding
that Young applies where “the defendant state official . . . at least [has] the ability to act”);
cf. Doyle v. Hogan, 1 F.4th 249, 256 (4th Cir. 2021) (“Even so, we could find the required
connection [under Ex parte Young] if the Governor is able to direct Maryland’s Secretary of
Health to enforce the Act by initiating a disciplinary proceeding.”); Tex. All. for Retired
Ams. v. Scott, 28 F.4th 659, 672 (5th Cir. 2022) (“If the official does not compel or constrain
anyone to obey the challenged law, enjoining that official could not stop any ongoing
constitutional violation.”).
20
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No. 22-50212
local officials “can and should enforce” the executive order.16 Here,
Governor Abbott has directly exercised his commander-in-chief powers over
DPS by compelling its officers to “stop any vehicle upon reasonable
suspicion of a violation” of the conditions prescribed in the order.17
This is a case where Governor Abbott, like the Director of DPS, is
sufficiently related to the enforcement of GA-37. And the pronouncements
he made in GA-37, taken with Plaintiffs’ specific allegations about their
operations and the threatened impact which the Governor’s order presents,
are sufficient to demonstrate his willingness to compel DPS to enforce the
order. Under these circumstances, Governor Abbott has exhibited more than
“some scintilla of ‘enforcement’” of GA-37. City of Austin, 943 F.3d at 1002.
In sum, I would hold that the Young exception applies to Governor Abbott in
the same manner as it does to the Director of DPS, Director McCraw.
Neither side disputes that the plaintiffs’ claims against Director McCraw are
subject to the Young exception. Thus, the plaintiffs are entitled to the
exception even though Governor Abbott has directed DPS to implement
certain enforcement measures in GA-37 because the Governor maintains an
ongoing statutory authority to enforce the order.
IV.
For the foregoing reasons, in addition to the reasons the district court
provided in its well-reasoned opinion, I dissent.18
_____________________
16
See Tex. Exec. Order GA-29.
17
Tex. Exec. Order GA-37, p. 2.
18
See Texas, 2022 WL 868717, at *4–6 (holding that the plaintiffs have sufficiently
alleged Art. III standing); Id. at *6–8 (determining that Governor Abbott has the authority
to enforce the alleged unconstitutional order and a demonstrated willingness to exert that
authority based on his statements in the Preamble of GA-37 and Tex. Gov’t Code §§
418.012, 418.018(c)).
21