Montana Law Banning Undocumented Immigrants From Accessing State Services Is Held to Be Unenforceable
HELENA – A district court judge has ruled that enactment of the 2012 voter-approved law banning undocumented immigrants from accessing state services is pre-empted by federal law and is unenforceable.
Legislative Referendum 121, which would have required certain state agencies to certify through a federal database that people requesting services are United States citizens, was set to take effect Jan. 1, 2013.
More than 80 percent of Montana voters supported the law in the November 2012 general election.
The immigrants’ rights group Montana Immigrant Justice Alliance sued in December 2012 to block the law, arguing the measure violated U.S. citizens’ rights to privacy, due process and equal protection under the Montana and U.S. constitutions and was pre-empted by federal law.
On Friday, District Judge Jeffrey Sherlock of Helena, agreed with the plaintiffs and struck down significant portions of the law.
In an 18-page order for summary judgment, Sherlock ruled the mandates upon state agencies to determine immigration status and deny a wide variety of state services to “illegal aliens,” is pre-empted by federal law as an impermissible regulation of immigration.
“The Immigration and Nationality Act … provides no definition for the term ‘illegal alien’ or the term ‘lawfully present,’” Sherlock wrote.
Sherlock wrote that by making up its own definition of “illegal alien,” the state is not only in a pre-emption conflict with federal law, but it also attempts to regulate immigration, which is prohibited by the Constitution.
“As noted by one court, state agents are unqualified and unauthorized to make independent determinations of immigration status,” Sherlock wrote. “Such determinations amount to immigration regulation that is pre-empted by the United States Constitution.”
Shahid Haque-Hausrath, a Helena immigration attorney and president of the Montana Immigrant Justice Alliance, was the lead attorney for the plaintiffs in the case.
“In this ruling, the court has prevented the state from engaging in misguided efforts to enforce federal immigration laws, which the state is not qualified nor authorized to do,” Haque-Hausrath said.
John Barnes, spokesman for Attorney General Tim Fox, said his office received a copy of Sherlock’s ruling Monday morning and was reviewing it.
“We have a period of time in which to make a decision on appealing,” Barnes said. “It is premature at this point as to whether or not we’re going to appeal.”
A spokesman for Gov. Steve Bullock, who is also named as a defendant in the case, said Bullock opposed the law.
“As attorney general, Bullock’s office opposed the measure,” Bullock spokesman David Parker said. “Attorney General Fox is the chief legal officer for the state and the ball is in his court on next steps.”
Sherlock upheld a provision of the law that permits communication between state agencies and the federal government regarding an individual’s immigration status. However, the ruling does not allow the state to make a legal determination of a person’s citizenship status.
“It is unconstitutional for the state to be engaging in its own determination of somebody’s immigration status and then denying services based on that determination,” Haque-Hausrath said. “This returns the state to the framework that has always existed, in which there are some services the federal government allows the state to screen, and there are others that it doesn’t.”
The measure was conceived by Republican state lawmaker Rep. David Howard of Park City.
Howard introduced a nearly identical measure in the 2011 Legislature but that bill died in committee. Howard then pushed forward with a proposal to put a the measure to the voters. The Republican-controlled Legislature passed the bill along party lines, sending the issue to voters on the 2012 ballot.
Howard said at the time the law was necessary because state taxpayers could be spending an untold number of of taxpayer dollars providing services to undocumented aliens.
Howard, who is now running for a seat in the Montana Senate, did not return a call seeking comment on Sherlock’s ruling.
In the argument for LR 121 provided to voters in the 2012 Voter Information Pamphlet published by the Montana Secretary of State’s office, Howard and former state Sen. Jim Shockley, R-Victor, wrote that the measure “requires the federal government to be notified and to enforce immigration control of illegal aliens who apply for state services, thus forcing them to leave Montana rather than use our services and take our jobs.”
Haque-Hausrath said lawmakers who backed the law ignored repeated warnings that it was unconstitutional.
“As the proponents pointed out in their argument for LR 121, this law was intended to make the state of Montana an unwelcoming place for immigrants,” Haque-Hausrath said.
Haque-Hausrath said over the past three legislative sessions lawmakers have considered at least 17 Republican-backed bills dealing with immigration, an issue he says is strictly covered by federal law.
“Since 2009 there have been a number of bills that would bring the state into the business of enforcing federal immigration laws,” Haque-Hausrath said.
Haque-Hausrath said while most of the immigration bills presented at the Legislature failed to pass, the state expended a significant amount of taxpayer dollars presenting LR 121 to Montana voters and in defending the lawsuit.
“I hope going into the next legislative session that the Legislature gets the message from this ruling that the state has no business enforcing federal immigration policy and needs to leave these issues to the federal government,” Haque-Hausrath said.