United States v. Abbott, 85 F.4th 328

Background

In July 2021 Governor Greg Abbott issued Executive Order GA-37 under the Texas Disaster Act, forbidding private individuals from providing ground transportation to migrants who had been detained or would be subject to expulsion.
GA-37 expressly directs the Texas Department of Public Safety (DPS) to stop vehicles on reasonable suspicion, reroute vehicles, and impound vehicles suspected of violating the order.
The United States sued the State, obtaining temporary relief; three nonprofits and a retired lawyer sued Abbott and DPS Director McCraw under 42 U.S.C. § 1983 alleging GA-37 violates the Fourth Amendment (and raised Supremacy Clause claims later dismissed).
The district court consolidated the cases and entered a preliminary injunction enjoining enforcement of GA-37 by defendants and their agents; the court declined to dismiss the private plaintiffs’ Fourth Amendment claim against the Governor on Young/sovereign-immunity grounds.
Abbott appealed only the denial of sovereign-immunity dismissal as to the private plaintiffs’ suit against him; the Fifth Circuit majority reversed, holding sovereign immunity bars the suit against the Governor and directing dismissal.
The majority reasoned Ex parte Young requires a defendant to (a) have a particular duty to enforce the challenged law, (b) threaten imminent enforcement, and (c) face prospective (not retrospective) relief; GA-37 delegates enforcement to DPS and plaintiffs failed to show Abbott has the enforcement duty or will imminently enforce it. Judge Stewart dissented, arguing statutory disaster powers give Abbott authority and willingness to commandeer DPS.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ex parte Young permits suit against the Governor (sovereign immunity)	Ex parte Young allows prospective injunctive relief against Abbott because GA-37 and disaster statutes give him authority to command DPS enforcement.	Young does not apply because GA-37 assigns enforcement to DPS and the Governor lacks the particular duty to enforce.	Held for Abbott: sovereign immunity bars suit; Ex parte Young inapplicable.
Whether the Governor is “charged with enforcement” of GA-37	GA-37 and Tex. Gov’t Code §§ 418/411 empower Abbott to assume command of DPS and thus he is a proper Young defendant.	GA-37 expressly directs DPS to enforce; statutes confer discretionary authority (“may”), not a specific enforcement duty on the Governor.	Held for Abbott: GA-37 and cited statutes do not vest Abbott with the particular duty to enforce.
Whether plaintiffs alleged a credible threatened enforcement by Abbott	Plaintiffs allege GA-37 and Abbott’s statements create a credible threat that he will compel enforcement.	Abbott has not threatened to enforce personally; DPS has discretion and has not enforced the order; no credible threat shown.	Held for Abbott: plaintiffs failed to show a threatened, imminent enforcement by the Governor.
Whether relief sought is prospective (Young) or retrospective	Plaintiffs seek injunction to prevent future Fourth Amendment seizures arising from GA-37.	Much of the relief effectively targets the Governor’s past act of issuing GA-37 and would be retrospective against him; only DPS can be enjoined prospectively.	Held for Abbott: relief against the Governor would be retrospective or ineffectual; Young does not authorize it.

Key Cases Cited

Ex parte Young, 209 U.S. 123 (establishing narrow exception to sovereign immunity for prospective injunctive relief against state officers enforcing unconstitutional state law)
Whole Woman’s Health v. Jackson, 595 U.S. 30 (describing limits of Ex parte Young and need for a concrete enforcement connection)
Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir.) (governor not a proper Young defendant where enforcement fell to other officials)
City of Austin v. Paxton, 943 F.3d 993 (5th Cir.) (Young requires some connection to enforcement; the statute need not use express enforcement language but facts must show ability/willingness)
Morris v. Livingston, 739 F.3d 740 (5th Cir.) (requires particular duty to enforce and demonstrated willingness to do so)
In re Abbott, 956 F.3d 696 (5th Cir.) (similar holding that issuance of an order alone does not make the governor the enforcer for Young purposes)
Texas Democratic Party v. Abbott (TDP I), 961 F.3d 389 (5th Cir.) (governor lacked relevant enforcement role under the Election Code provisions at issue)
Texas Democratic Party v. Abbott (TDP II), 978 F.3d 168 (5th Cir.) (reiterating limitations on suing the governor under Young when enforcement duties lie elsewhere)
Okpalobi v. Foster, 244 F.3d 405 (5th Cir.) (Young may apply where the defendant official at least has the ability to act)
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (Eleventh Amendment bars suits against states and officials in their official capacity absent a Young exception)
Quern v. Jordan, 440 U.S. 332 (§ 1983 does not abrogate state sovereign immunity)
Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635 (Young permits only prospective relief against ongoing violations)
Va. Office for Prot. & Advocates v. Stewart, 563 U.S. 247 (clarifying prospective nature of Young relief)
Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460 (5th Cir. en banc) (voiding a state order is retrospective and outside Young)