Start with some excerpts from that Executive Order:
NOW, THEREFORE, 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:
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 CBP for crossing the border illegally or who would have been subject to expulsion under the Title 42 order.
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 I, or that refuses to be rerouted in violation of paragraph 2.
This is his "legal justification" for issuing this order:
WHEREAS, in the Texas Disaster Act of 1975, the legislature charged the governor with the responsibility“for meeting... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code, and expressly granted the governor broad authority to fulfill that rcsponsibility; and
WHEREAS, under Section 4 18.012, the “governor may issue executive orders hav[ing] the force and effect of law:” and
WHEREAS. under Section 418.018(c). the “governor may control ingrcss [sic] and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area:” and
WHEREAS, the admittance and movement of migrants under the Biden Administration is exposing Texans to COVID-19 and creating a public health disastcr in Texas;
The problem is, Abbott's control of ingress and egress runs up against Federal law:
Border Patrol officials release some migrants to shelters where they stay temporarily until they can get a bus ride or a plane ticket to their families in the U.S. If Border Patrol agents release migrants, it usually means they can stay in the country as their legal cases are pending.
With this order, advocates fear that volunteers helping migrants get to their final destination would be targeted by state troopers.
“That’s unheard of and it's blatantly unconstitutional,” said Aaron Reichlin-Melnick, an analyst with the American Immigration Council, a Washington, D.C., group that advocates for immigrants.
Needless to say, if Border Patrol rules a person can stay in this country, that person is not guilty of criminal trespass just by being in the state of Texas. Abbott knows this; Abbott doesn't care.
There's also the problem of the rational basis test. Abbott says his only recourse is to force certain persons, based on race alone, back to where they came from. Which doesn't necessarily mean Mexico (he knows the limits of his power all of a sudden) but back to the shelter which they left because BP said they could stay in country while awaiting a determination of their legal claims. And why are they targeted? Because they are non-white, and because they might carry Covid. But there are better methods to protect the public and the public health than this measure. There are measures more reasonably calculated to achieve the desired end.
There is a current local controversy raging among a handful over the issue of bail in Harris County. The focus is always on an accused violent criminal being "let back out on the streets," but never on, say, the man arrested because he voted in a Democratic primary while on parole a year ago. His bond was set at $100,000, so he couldn't pay (he'd have to come up with $10,000 to post bond). He deserves to sit in jail awaiting trial, while his accuser, AG Ken Paxton, is free to move about the country because he could post bond on a $35,000 bail? The people who think violent criminals are walking free want to suspend bail altogether, in order to protect law abiding citizens. That, however, is not a solution reasonable calculated to secure the ends of justice, especially since all accused are innocent until proven guilty. Bail is a method of assuring the accused is available for trial, without depriving them of their right to liberty while awaiting trial, especially if they are acquitted at trial (but spent two years in jail waiting for that acquittal. Even 2 nights would be unjust.) A long way around explaining the concept that laws must be reasonably aimed at achieving an end government is actually allowed to pursue. (Even without any racial intent, we can't have a law that requires all blue-eyed people be locked up because reasons. An extreme example to underscore the point.) If we can't lock up all blue-eyed people, why can DPS stop and detain any vehicle with a "reasonable suspicion" said vehicle is transporting immigrants? On what basis is this done? Because the passengers might be immigrants who might carry Covid? What about white people driving around in the border counties where the disaster has been declared? They are as likely to be infected, even if they are vaccinated? Are they not subject to this kind of rump quarantine?
This is a blatantly racist policy with no justification in law (racism in the law is a pernicious (yes, that's a legal term) element that vitiates any legal enforcement. The courts will not enforce racist provisions in contracts such as covenants in property title which demand the property not be conveyed to persons of a certain race. Such covenenants are (say it with me now) "pernicious" and the law will not countenance them. This order by Abbott falls squarely into that category. There are more effective and meritorious ways to enforce a the public interest in health during this pandemic (like, say, a mask mandate) than to target persons based on skin color (how else do you identify immigrants in a vehicle for the purposes of just a vehicle stop?) and treat them as infected and contagious on that basis alone.
This might as well be Trump calling Mexicans "rapists" and "criminals." There's absolutely no difference, except Abbott is ordering them to be detained in the state of Texas. Which, actually, makes it worse.
Except DPS won't be testing anyone for Covid; they'll just assume the worst, and detain them on the grounds they are brown people and not citizens (or will they check on that, either? How would you prove your citizenship? Skin color?) So, fourth amendment, 14th amendment violations; just for starters.
I'm just going to tack this on because FoxNews is going full racist panic in aid of the GOP in Texas:
Except, again, Texas is not restricting transportation of person with Covid; Texas is simply restricting transportation of persons, with no legal basis at all except skin color. Well, Patrick has always been a loose cannon. And he makes it clear, if Abbott hadn't already, that this is all about politics; not a bit about state or national security. Shorter Patrick: we can do what we want with government power, as long as it's used against the "right" people.
