The US Court of Appeals for the Fifth Circuit ruled on Friday that the doctrine of sovereign immunity bars private individuals from suing Texas Governor Greg Abbott over Executive Order GA-37. The order, signed by Abbott in July 2021, prohibits private individuals from transporting migrants who were previously detained or subject to expulsion from the US.

Circuit Judge Andrew Oldham authored the majority opinion of the three-judge panel. Oldham found that the doctrine of sovereign immunity bars private plaintiffs from suing Abbott over the order. The Eleventh Amendment of the US Constitution provides, generally, that states are immune from lawsuits brought by citizens in federal court unless the state waives sovereign immunity.

Oldham noted that in the US Supreme Court case Ex Parte Young, the Supreme Court found that private individuals can sue state officials in federal court to prevent them from enforcing unconstitutional laws. However, Oldham found that Young does not waive sovereign immunity in this case because: (1) Abbott does not have the duty to enforce the order, (2) the plaintiffs did not identify a relevant, future enforcement action, and (3) the plaintiffs seek recourse for Abbott’s past conduct. Thus, Oldham concluded that sovereign immunity is not waived in this case and sent the case back down to the district court for dismissal.

Circuit Judge Carl Stewart dissented from Oldham’s majority. Stewart argued that the plaintiffs should qualify for the Young exception to sovereign immunity. Stewart found that, in viewing the facts in a light most favorable to the plaintiffs, Abbott can enforce the executive order because the Texas Code provides for it. This provision states that:

The governor may assume command and direct the activities of the commission and department during a public disaster, riot, insurrection, or formation of a dangerous resistance to enforcement of law, or to perform the governor’s constitutional duty to enforce law. The governor shall use the personnel of the Texas Highway Patrol only if the other personnel of the department are unable to cope with the emergency.

Abbott originally issued the executive order in July 2021 while Texas was under a disaster declaration due to the COVID-19 pandemic.

The private plaintiffs in this case are several nonprofits and a retired lawyer. The plaintiffs sued under 42 U.S.C. § 1983. Normally, this law awards the victims of unconstitutional conduct a private action against the offending government official. It is the one of the leading ways for US individuals to vindicate federal wrongs perpetrated by state and local officials.

This is not the only legal dispute Executive Order GA-37 is currently facing. Although the Fifth Circuit dismissed the private plaintiff’s suit, the US federal government currently has an injunction barring enforcement of the order. In the federal government’s case, the district court denied Abbott’s motion to dismiss the government’s claim that the order is preempted by federal law.