The Biden administration on Monday said it is ready to sue Texas if its Republican governor moves forward with plans to force shelters in the state to stop housing migrant children in federal custody.

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

Following Abbott’s directive, Texas authorities instructed 52 state-licensed shelters and foster care programs serving migrant children to wind down operations by August 30. Those facilities can collectively house more than 8,600 migrant children, according to state data.

In a letter sent to Abbott on Monday, Paul Rodriguez, a top HHS lawyer, said such a move would violate the Supremacy Clause of the U.S. Constitution, which dictates that federal law supersedes state laws. Rodriguez gave 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.

“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,” Rodriguez wrote in the letter. “If interpreted to reach ORR’s network of grantee-facilities in Texas, the May 31 Proclamation would be a direct attack on this system.”

Rodriguez said such a scenario would cause “significant disruption,” forcing HHS to potentially shutter shelters and making it more difficult for the government to comply with the laws and legal requirements governing the care of migrant children in U.S. custody.

Federal law requires U.S. border officials to transfer unaccompanied children to HHS within three days of taking them into custody, barring extraordinary circumstances. A landmark federal court settlement known as the Flores settlement agreement also requires the government to place these children in facilities that are licensed to care for minors. 

Rodriguez said that HHS “welcomes the opportunity to work with Texas to address issues of concern.”

“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,” Rodriguez added.

After crossing the Rio Grande River, migrants wait to be processed by Border Patrol officers on April 24, 2021 in Roma, Texas.

Benjamin Lowy

Representatives for Abbott did not respond to requests for comment.

Shelter operators have said they could be forced to close some of their facilities if the Texas order is implemented. The refugee agency has said it only contracts programs that are “appropriately licensed” to care for children and that facilities it funds must comply with state licensing requirements

During a call on Monday, ORR director Cindy Huang assured shelter operators that HHS would seek to continue the contracts with their facilities, even in the wake of the Texas order, according to two people familiar with the call.

In his disaster proclamation last week, Abbott argued 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. Without citing evidence, he also suggested that sheltering migrant minors adversely impacts foster care programs for U.S. citizen children.

In the past three months, a record number of unaccompanied children have entered U.S. custody along the southern border. Between February and April, Customs and Border Protection (CBP) took more than 45,000 unaccompanied minors into custody, according to agency data.

As of Monday morning, there were 16,000 unaccompanied migrant minors in HHS custody; many of them housed in emergency sites the Biden administration set up to move children out of ill-suited and overcrowded Border Patrol holding facilities. 

Unlike the traditional shelters, the emergency facilities are not licensed by state authorities and would not be affected by Abbott’s directive.

Advocates have expressed concern that Abbott’s order could prompt federal officials to transfer children from traditional shelters in Texas to the unlicensed emergency facilities, which include repurposed military bases, work camps and convention centers.