The federal response comes after Gov. Greg Abbott ordered last week that Texas child care regulators revoke the licenses of state-licensed facilities that house migrant children. The move, the latest by the Republican governor as he spars with President Joe Biden over immigration policies, would force the facilities to stop serving unaccompanied minors or lose their license to serve any children.
Texas officials have already begun instructing the 52 state-licensed facilities serving migrant children to wind down operations by Aug. 30, following Abbott's order, according to a notice sent to shelters by the Texas Health and Human Services Commission.
In a letter sent Monday to Abbott and other Texas officials, Paul Rodriguez, a top attorney for the federal Department of Health and Human Services, said Texas' move violates the U.S. Constitution's Supremacy Clause, which says federal law supersedes state laws. He asked the recipients to clarify whether they intended that the order be applied to those shelters, which are overseen by HHS and its refugee resettlement branch, the Office of Refugee Resettlement.
He wrote that the federally contracted shelters "comprise a significant portion of ORR's total operational footprint, and represent an indispensable component of the Federal immigration system."
If Abbott's May 31 order includes those ORR facilities, it "would be a direct attack on this system," Rodriguez said in the letter. He gave the state until Friday to clarify whether the order will affect those facilities.
If so, he said legal action could follow.
"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," he said.
Abbott's order affects only the state-licensed shelters — which collectively house around 8,600 children, according to state data. Federal emergency intake centers — which aren't licensed by the state — house the majority of immigrant children in the state and have seen the largest population growth in recent months. State data shows that the population in Texas-licensed agencies has remained relatively static.
A snapshot of federal data shows that 8,700 children were moved through the federal emergency intake shelters in Texas on May 10 — more than 10 times the number of children recorded in a previous snapshot on March 15, according to data obtained and cross-checked by the Associated Press. State-licensed facilities have reported monthly headcount snapshots of around 4,200 to 4,400 over the last three months, hovering near half of their combined capacity.
Federal law requires that U.S. border officials move unaccompanied immigrant children to an HHS facility within three days of taking them into custody, except under extraordinary circumstances.
A statement from Abbott's office Tuesday echoed claims from his executive order that the federal government is commandeering state resources.
"The Biden Administration is yet again pressuring Texas to aid its illegal immigration program and force our state to do its job. Commandeering state resources to fulfill the federal government's responsibility is a violation of the U.S. Constitution. Here in Texas, we will follow that law," Abbott said in the statement.
"The federal government caused this problem and should be solely responsible for the care of these children. No child will be uncared for. Texas will remain focused on doing our job — protecting Texans," the statement concluded.
The governor's office did not respond to questions about the potential relocation of children who are housed in the state-licensed shelters or whether the state was considering backing down on its order in light of the HHS letter.
Abbott pointed to the state's foster care capacity woes as one of the reasons for his order. Hundreds of foster children have spent nights in hotels, community organizations or Child Protective Services offices because there weren't enough suitable placements as dozens of foster care providers relinquished their contracts with the state due largely to higher scrutiny on the system.
"The unabated influx of individuals resulting from federal government policies threatens to negatively impact state-licensed residential facilities, including those that serve Texas children in foster care," Abbott wrote in the order.
Only 134 migrant children were housed in federally contracted Texas facilities that also serve foster children as of May 10, according to the data gathered by the Associated Press.
Patrick Crimmins, a Texas Department of Family and Protective Services spokesperson, said unaccompanied immigrant children don't enter the state's foster care system directly. They would only be in the system if they had to be removed from family members with whom federal employees placed them.
"There are no children in foster care simply because they are an unaccompanied minor. Children are only in foster care because of abuse or neglect that is reported to us and investigated by us," Crimmins said.
Asked how Abbott's order might affect the foster system's placement shortages, Crimmins replied, "We don't know that yet."
Abbott's executive order also instructed the Texas Department of Public Safety to enforce all state and federal laws on trespassing, smuggling and human trafficking and ordered two state criminal justice commissions to provide guidance and request "any necessary" waivers to give counties "the flexibility needed to establish adequate alternative detention facilities."
Border apprehensions continue to soar in the state, continuing a sharp uptick that began in 2020. Abbott blames Biden for the increases, and for an increase in fentanyl seizures on the Texas-Mexico border, and has deployed more than 1,000 DPS troopers and hundreds of Texas National Guard soldiers to the border this year.
Jennifer Nagda, policy director for the Young Center for Immigrant Children's Rights, called Abbott's order an attempt to score political points in the ongoing feud.
"Children should never be made pawns in political fights. And there should be no debate about guaranteeing that every child who arrives at our border is recognized and treated as a child," Nagda said in a written statement. "That means access to safe care, to family reunification, and to a fair legal process."
Mandi Cai contributed to this report.
