Governor Abbott Gets Friday Ultimatum From HHS. Stop Evicting Migrant Children

Waiting to cross into the USAP

In a disaster declaration issued on Memorial Day, Texas Governor Greg Abbott instructed state officials to discontinue the licensing of shelters and foster care programs in Texas housing migrant minors. These minors are in the custody of the Department of Health and Human Services (HHS). HHS is charged with housing children who cross the southern border without their parents.

Texas authorities instructed 52 state-licensed shelters and foster care programs serving migrant children to wind down operations by August 30 after the directive was issued. Between them, the 52 facilities can collectively house more than 8,600 migrant children.

The Biden administration has issued an ultimatum to Governor Abbott’s office, invoking the Supremacy Clause of the U.S. Constitution. Essentially, the Supremacy Clause states that state law is superseded by federal law.

Paul Rodriguez, a top HHS lawyer, sent a letter to Abbott on Monday, giving Texas until Friday to clarify whether state authorities plan to apply the directive to shelters overseen by the Office of Refugee Resettlement (ORR), a branch of HHS.

According to a portion of the letter, Rodriguez stated the following;

“ORR operates 52 state-licensed facilities in Texas, which comprise a significant portion of ORR’s total operational footprint, and represent an indispensable component of the Federal immigration system. If interpreted to reach ORR’s network of grantee-facilities in Texas, the May 31 Proclamation would be a direct attack on this system.”

The resultant closure of these facilities would seriously compromise the HHS’s ability to provide shelter to immigrant children crossing into the US without a parent. It would also greatly increase the trauma faced by many of these children.

U.S. border officials are required by Federal law to transfer unaccompanied children to HHS within three days of taking them into custody unless exceptional circumstances prevent this. The Flores settlement agreement also requires the government to place these children in facilities that are licensed to care for minors.

Just how far is Washington willing to take this? Abbott may be better placed to consider a tactical retreat this time around. According to Rodriguez,

“Although we prefer to resolve this matter amicably, in light of the legal issues outlined above, HHS is consulting the U.S. Department of Justice and intends to pursue whatever appropriate legal action is necessary to ensure the safety and wellbeing of the vulnerable youth that Congress entrusted to ORR,” 

Of course, if the Texas governor digs in his heels, a legal battle will ensue and the inevitable losers will be the children, caught in a legal no man's land. It’s doubtful there will be widespread support among Texans for the consequences of Governor Abbott’s policy if the issue is dragged out. No one likes to see children suffer.

In his disaster proclamation last week, Abbott suggested that Texas was being forced to administer child shelters in response to a “migrant detention crisis” he said was fueled by the Biden administration’s border policies. 

He suggested that sheltering migrant minors adversely impacts foster care programs for U.S. citizen children. He did not however present any evidence to support this statement.

There clearly is a problem. In the past three months, between February and April, Customs and Border Protection (CBP) took more than 45,000 unaccompanied minors into custody, according to agency data. These figures are not sustainable and the Biden administration needs to urgently address the influx of unaccompanied minors.

Although childcare facilities may be able to cope with current numbers, unless the flow is stemmed, there is a very real possibility that American children in need may face a shortage of care and resources in the very near future.

However, in the meanwhile, the children that have already crossed into the US deserve the care and support of facilities that afford them proper care in a humane environment. Unlike the traditional shelters we’re discussing above, emergency facilities are not licensed by state authorities and do not offer children the same level of care.

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