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‘Cynically driven:’ Experts question Montana’s lawsuit against DHS immigration policy

People pass graffiti along the border structure in Tijuana, Mexico. (AP Photo/Julie Watson via CN))

(Daily Montanan) Immigration experts say because of the low number of undocumented people in Montana and how Congress and the executive branch dictate federal immigration policies that a lawsuit filed by the state against the Department of Homeland Security is a frivolous endeavor.

“I think [the lawsuits] are cynically driven to exacerbate cultural wars … I think it’s a waste of resources for the states when they could be prosecuting drug dealers within their own borders,” said Kari Hong, an immigration professor and scholar at Boston College who lives in Missoula. “Instead, they’re using their resources and their lawyers and their money to challenge and stop federal policy, which they really do not have a proper say under a constitution to be doing so in this forum.”

Montana’s governor and top law enforcer joined an Arizona lawsuit Tuesday alleging President Joe Biden’s administration hamstrung the state’s ability to protect itself from un-documented people, who they say cost the state money and are a significant contributor to its drug trade.

With no notice to the public, Montana entered an agreement with the DHS in January that traded the state’s cooperation with federal immigration officials for the department’s word that it would not implement new policies without its input.

The agreement was signed by Gov. Greg Gianforte and Attorney General Austin Knudsen and went into effect on Jan. 11. In the final days of the Trump administration, DHS signed these agreements with multiple states.

When the Biden administration took over, it issued a memorandum on Jan. 20 that limited deportations and enforcement to those who pose a threat to national security, those who have crossed the border since Nov. 1, and those who committed “aggravated felonies.”

Less than a week later, a Trump-appointed federal judge in Texas issued a temporary restraining order on the department from implementing the 100-day pause on deportations.

In response, on Feb. 18, Biden issued interim guidance that removed the 100-day pause but directed that deportations and enforcement still be focused on those who are suspected of engaging in terrorism, espionage or if their arrest is necessary to “protect the national security of the United States,” according to the memo.

Arizona and Montana are arguing that by issuing the memorandum and the interim guidance that the administration violated the agreement signed under former President Donald Trump’s rule and are asking for the judge to put a halt to the current directives.

Anthony Johnstone, a constitutional law professor at the University of Montana Alexander Blewett III School of Law, described these types of lawsuits as “a game of cat and mouse.” An administration will issue guidance, a state will sue, the administration will change the guidance, and another state will sue.

The agreement signed between Montana and DHS provided DHS would give Montana 180 days written notice before taking any action that could “pause or decrease the number of returns or removals … or inadmissible aliens from the country,” according to the lawsuit filed in Arizona Federal Court.

But Johnstone said the agreement is partly irrelevant to the case because the core of the lawsuit centered on the extent of the president’s executive power in immigration enforcement.

“The central question is how much discretion the president has to suspend or deprioritize enforcement of certain federal immigration laws,” he said.

Additionally, he said, the agreement might not be enforceable because acting Deputy Secretary Kenneth Cuccinelli, who signed the agreement on behalf of the department, was ruled not to be appropriately holding office.

The Texas judge did not consider the agreement that the state had signed with DHS when issuing the temporary restraining order on Biden’s original memorandum.

Even with the favorable Texas ruling, Montana and Arizona felt it necessary to file a separate suit. By filing lawsuits in separate circuits, “it means any appeals would go to two separate courts, which generates the ability for different decisions and would make it a more attractive case for the U.S. Supreme Court,” Johnstone said.

Experts also said because DHS does not have unlimited resources, the executive branch must make allocation decisions. But under the agreement, DHS would need to get approval from local governments to make changes, which Sarah Pierce, policy analyst for the U.S. Immigration Policy Program at the Migration Policy Institute, said is a violation of federalism and the constitution. 

“The Trump administration was very willing to adopt out-of-the-box policies, even if they seemed illegal, to see what would stick,” she said.

While the Biden administration is claiming it must triage resources, Montana and Arizona are arguing that by not enforcing full-scale deportation measures, it puts a burden on law enforcement, education, healthcare, public assistance, and general government services.

Montana and Arizona want a broad deportation approach, but it’s not that simple because of the limited resources DHS has to carry out immigration enforcement, said Hiroshi Motomura, a scholar and professor of immigration and citizenship at the University of California Los Angeles.

And the idea that un-documented people are a strain on resources in general is flawed, he said.

“Un-documented workers perform functions that are essential to state and local economies. They portray all immigrants as a strain, but they are contributing to the economy currently and in the future,” he said.

Even if what Arizona and Montana are alleging is true and undocumented people do burden state resources, the states’ efforts are misguided, he said.

“The target ought to be Congress to change immigration laws or appropriate more money for enforcement,” he said. 

All arguments aside, he said he believes the lawsuit is just a way to “tie the Biden administration’s hands and have Trump policies carried over.” 

Motomura pointed to a 2012 Supreme Court decision that ruled it’s up to the executive branch to set immigration priorities, which is what he said Biden was doing with his memorandum.

“That’s the point of the presidential transition. Congress has only allowed a certain amount of money, and it’s up to the executive branch to set priorities on how to use the money.”

Hong agreed. 

Instead of filing lawsuits, she said, “Montana should be encouraging its elected representatives to get Congress to step up and pass laws that address the issue.”

By joining the lawsuit, Knudsen said the state is trying to “protect its citizens and help stem the tide of drug trafficking and drug-related crime.”

“We made a deal. Montana will honor its obligations, but the Department must honor its obligations, too,” he added.

However, because immigration offenses are a federal crime, Hong said Montana should not be worried about having to divert state resources.

“If there is a federal drug trafficking crime, that’s an FBI issue,” Hong said.

Most of the drug trafficking comes through the mail and through lawful ports of entry, she said. “[Drugs] don’t come through asylum seekers with their children who are crossing the border, which is what they’re trying to focus on.”

Law enforcement experts have agreed that there has been an uptick in mailed drugs to the state and more meth regularly enters the country through lawful ports of entry rather than people backpacking it through the mountains.

Drug Enforcement Agency Montana Resident Agent in Charge Stacy Zinn-Brittain said the agency has seen an uptick in drugs being mailed, as well as an uptick in people physically driving the drugs to Montana.

In the last five years, even with the hard-line deportation efforts by the Trump administration, the meth trade has thrived in Montana and there has been an increase in cartel activity, Zinn-Britten said. 

But she added that because of Trump’s focus on drug activity, the agency had more resources to identify cartel activity. And said that she believes strong enforcement at the border would help curb the meth trade in Montana given majority of the drugs come from the southwest border.

“If you keep the border wide open they are going to walk through it. If you give them obstacles that are wide enough or high enough they are going to look at easier avenues,” Zinn-Britten said.

Initially, Arizona was the only plaintiff in the suit. But After Arizona General Mark Brnovich amended the suit to also focus on the pause in deportations and the interim guidance, Montana joined as a plaintiff, arguing DHS did not live up to the provisions of the agreement and challenged the interim guidance. 

The agreement — dubbed the Sanctuary for Americans First Enactment Agreement or SAFE Agreement — has a provision that allows states to sue if it is violated and stipulates that states must first try to resolve discrepancies.

On Feb. 1, Montana wrote to the Acting DHS Secretary David Pekoske requesting the department comply with the state’s agreement.

“Not only is this brazen stand-down directive to your immigration enforcement agencies unlawful … but it will also surely impose the very strains upon Montana’s health, safety, and pecuniary interests’ the Department acknowledged just weeks ago when it entered the SAFE Agreement,” Knudsen and Gianforte said in a written letter to Pekoske.

In response, Pekoske said DHS did not violate the agreement because it was “void, not binding, and unenforceable” and that it should be considered terminated immediately.

While immigration reform has not been a central focal point of the 67th legislative session, Republican lawmakers have introduced bills that would change how Montana interacts with ICE.

A 2020 state Supreme Court decision ruled “neither federal law nor Montana law provides state or local Montana law enforcement officers with authority to arrest individuals based on federal civil immigration violations.”

In response to the ruling, Republican Rep. Bill Mercer, R-Billings, has introduced a bill this session that would require detention officers to re-arrest and hold anyone who is already in custody and is the subject of an ICE detainer request.

Another bill banning sanctuary cities, of which Montanan has none, has been working its way to the desk of Gov. Gianforte, who has publicly supported it.