Editor’s Note: Raul A. Reyes is an attorney and a member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author. View more opinions on CNN.
Texas Gov. Greg Abbott signed a bizarre, vaguely worded executive order on Wednesday that he says is aimed at lowering Covid-19 infections.
In a statement about the order, he said: “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, and we must do more to protect Texans from this virus and reduce the burden on our communities.”
This is nonsense. His order is an outrageous attempt to scapegoat immigrants, and people who look like them, as being somehow to blame for the resurgent pandemic. It is certain to invite racial profiling and other abuses of the law, and brings Texas into the realm of immigration enforcement, which the Constitution forbids.
The order says that when migrants are released from the custody of federal immigration officials, it is illegal for anyone except law enforcement to give them a ride home to their families or to a sponsor’s home. It directs the state’s Department of Public Safety to stop and reroute any vehicle “upon reasonable suspicion” of a violation of this order.
The order is constitutionally suspect and logistically impractical. And it will certainly do little to combat Texas’ rising number of coronavirus cases.
Abbott does not have the authority to issue such an order. Immigration policy is the exclusive province of the federal government, not the states. This principle was affirmed by the Supreme Court as recently as 2012, when it struck down parts of SB 1070, Arizona’s “papers, please” law. So although Abbott may not like what the Biden administration is doing on immigration, he cannot implement his own immigration measures in the Lone Star State.
On Thursday, US Attorney General Merrick Garland sent a letter to Abbott, urging him to rescind the order or face possible legal action. Garland called the order “dangerous and unlawful” and wrote that it “directly interferes” with federal immigration enforcement.
The executive order is additionally problematic because it is so vague (it is barely two pages). Texas State Troopers are directed to stop any vehicle on the “reasonable suspicion” that it is carrying migrants who potentially have Covid, yet the order does not say what would constitute such suspicion.
Would any car carrying Latino passengers in Texas be subjected to a traffic stop? Given that the state is home to more than 11 million Latinos, according to the US Census, comprising more than 40% of the population, that seems like a Texas-size recipe for the violation of Latinos’ civil rights.
The order is overly broad as well because it applies to all of Texas, not just the border areas. And if such a “Covid stop” would occur, how would the troopers be able to assess whether a passenger or driver has been exposed to Covid-19? State Troopers are not medical personnel.
The order places an unfair burden on the troopers. Border Patrol agents and Immigration and Customs Enforcement (ICE) officials receive specialized training and learn immigration law, policy and procedure. Texas State Troopers do not. Yet with this order, Abbott is potentially turning all of the troopers into immigration enforcement officials.
Because the order is sorely lacking in specifics as to how, when and where a stop should be carried out, these state workers risk legal exposure if they are sued over alleged illegal stops. Enforcing the law would also pull the troopers away from their primary duty of keeping Texas highways safe.
Texas has a problem with rising Covid-19 infections. But immigrants – legal and otherwise – are not the problem. The problem is that Texas has too many unvaccinated residents; about 42% of Texans are fully vaccinated, compared with the national average of about 48%.
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An analysis of data from the Texas Department of State Health Services shows that 99% of the people who died in Texas since February because of coronavirus were unvaccinated. If Abbott is concerned about the spread of Covid-19, perhaps he will call for – and not rail against – another statewide mask mandate. Or, helpfully, and with the best interest of citizens in mind, perhaps he would allow local communities to implement their own mask requirements, rather than prohibiting it, as he did in May.
Abbott is resorting to the racist trope of blaming immigrants for the spread of disease. His order will almost assuredly subject Latinos in his state to illegal over-policing. (And it is especially shameful that he is engaging in such tactics as we approach the third anniversary of the massacre in El Paso, a mass shooting that targeted Latinos.)
Rather than offer public health solutions, Abbott is promoting fear, loathing and a disregard for the constitutional and civil rights of Latinos.
