Texas AG Paxton invites legal fight with Biden admin over busing migrants to DC: 'I'm daring them'

Texas may be poised for a legal showdown with the Biden administration over immigration policy as the state's top attorney said he would urge GOP Gov. Greg Abbott to send migrants to Washington D.C. – flouting federal laws.

Republican Attorney General Ken Paxton acknowledged a 2012 Supreme Court case, Arizona v. the United States, prevents states from making their own immigration policies and is a "problem" for Texas' efforts. Still, he wants Texas to move ahead with busing migrants to Biden's doorstep and suggested the Supreme Court, now with a solid 6-3 conservative majority, could give the issue a fresh look. 

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"I think that was wrongly decided," Paxton told "Fox and Friends" of the Arizona case. "So I'd encourage the governor to force people to be sent out of our state and make the federal government sue us [and] take that back to the U.S Supreme Court."

In an interview with Fox News Digital Saturday, Paxton said he wasn't daring the Biden administration to sue Texas, rather, "I'm daring them to follow federal law. But if they're not going to, why should the governor not be able to protect his state?"

The legal storm is surrounding Abbott's announcement this week he'd send the migrants by charter buses and flights to Washington, D.C., to bring the crisis to Biden's doorstep. 

Republicans, as well some Democrats, are up in arms that the Biden administration will rescind the Title 42 public health emergency on May 23 that has been used to quickly expel a majority of migrants at the border because of the coronavirus pandemic. They've warned it will cause a surge in migration -- on top of the already massive numbers being encountered by Border Patrol each day.

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The White House has dismissed Abbott's announcement as "publicity stunt" since he doesn't have the legal authority. 

"I think it's pretty clear that this is a publicity stunt," Psaki told Fox News’ Peter Doocy in the White House press room on Thursday. "I know that the governor of Texas, or any state, does not have the legal authority to compel anyone to get on a bus."

Psaki continued, "His own office admits that a migrant would need to voluntarily be transported and he can’t compel them to because, again, enforcement of our country’s immigration laws lies with the federal government and not a state."

Undeterred, Texas is already dispatching buses to the southern border towns to retrieve border crossers and send them to the U.S. Capitol. The Texas Division of Emergency Management (TDEM) said Friday it has dispatched an unspecified number of buses to small Texas communities that have been overwhelmed by an influx of migrants placed there by the federal government, according to officials. 

Paxton said he believes preparations are being made but actual transport to Washington, D.C., won't take place until next month to coincide with Title 42's rescission, but he deferred timing questions to the governor. 

Abbott's office referred busing logistics to TDEM, which said that Paxton's remarks are "incorrect" and that the "operation is currently underway." 

Seth Christensen, chief of media and communications for TDEM, referred Fox News Digital to the agency's Friday statement which also noted communities that originally requested support "have now said that the federal government has stopped dropping migrants in their towns since the Governor’s announcement on Wednesday."

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Texas Department of Public Safety Lt. Christopher Olivarez told Fox News the busing to Washington, D.C., will be done at the request of local communities that need relief. 

"The governor's plan is to have those mayors or those county judges – when they feel a sense of being overwhelmed or strained resources – they contact the Texas Division of Emergency Management (TDEM), who is handling that situation, and they will provide that transportation from Texas to Washington D.C."

"One straight shot from Texas all the way to Washington, D.C.," Olivarez told Fox News' Neil Cavuto Saturday. "So it's going to be very effective."

In the Arizona v. U.S. case, the Supreme Court, in a 5-3 decision, nullified a 2010 Arizona law that made it a state crime for undocumented immigrants to be in Arizona without proper authorization, to get a job in Arizona, as well as allow state police to arrest individuals with probable cause of a deportable offense. The court found that such immigration matters are solely left up to the federal government. 

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"If you're not going to let us deport these people –-  if we don't have the authority to do that, and we're in the middle of a litigation over that right now to see if we do – then why not send them to the doorstep of Joe Biden and let him take care of the problem since he's creating it," Paxton said. 

Fox News' Adam Shaw, Kyle Morris and Andrew Mark Miller contributed to this report.