HELENA — Montana has joined 16 other states in challenging President Barack Obama’s recent executive order to suspend immigration laws for 4.1 million people living illegally in the United States.
Attorney General Tim Fox joined a lawsuit filed Wednesday in U.S. District Court in Texas, calling it “a clear violation of the separation of powers.” As attorney general, Fox is the state’s chief legal officer.
The lawsuit seeks to block Obama’s actions taken by executive order.
Obama announced Nov. 20 he was protecting from deportation and providing the right to work to some 4.1 million people living illegally in the United States. The Associated Press said the people covered by Obama’s executive action are parents of U.S. citizens and legal permanent residents who have lived in this country for at least five years, as well as hundreds of thousands more young people.
The lawsuit is not filed against Obama but rather some top federal officials: The secretary of the Department of Homeland Security, commissioner of U.S. Customs and Border Protection, deputy chief of the U.S. Border Patrol, acting director of U.S. Immigration and Customs Enforcement and director of U.S. Citizenship and Immigration Services.
“Under the U.S. Constitution, the president’s role is limited to faithfully executing the laws passed by Congress,” Fox said in a statement. “He can neither bypass the peoples’ elected representatives when they don’t pass the laws he wants, nor can he rewrite current laws under the guise of ‘prosecutorial discretion.’ “
Shahid Haque-Hausrath, a Helena immigration lawyer with the Border Crossing Law Firm, criticized Fox for joining the lawsuit.
“It is disappointing that the attorney general is once again wasting taxpayer dollars and his office’s limited resources by pushing his own ideological agenda,” Haque-Hausrath said. “Montana is one of the states with the least number of foreign-born residents, both documented and undocumented. There is no reason, apart from ideological bias, for Attorney General Tim Fox to be joining in this frivolous lawsuit.”
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Fox said the president’s Nov. 20 directive to the Department of Homeland Security was issued without following the federal Administrative Procedure Act’s rulemaking guidelines. He called it “nothing but an unlawfully adopted legislative rule: an executive decree that requires federal agencies to award legal benefits to individuals whose conduct contradicts the laws enacted by Congress.”
Fox said Section 2 of Article II of the U.S. Constitution, known as the “Take Care” clause, says the president “shall take care that the laws be faithfully executed.” This clause, Fox said, ensures that the nation’s chief executive will uphold and enforce the laws passed by Congress.
The Administrative Procedure Act requires public notice and comment in any rulemaking process that would provide legal benefits such as work permits, Medicare and Social Security to individuals who are openly violating immigration laws, Fox said. Obama undertook no such process before issuing the executive orders, which Fox said essentially dispenses with federal immigration law.
Haque-Hausrath said Montana will benefit from keeping Montana families together.
“No one wins when U.S. citizen children are separated from their parents, and that is the primary thing that President Obama’s executive action is meant to address,” he said.
He said the precedent for this type of presidential executive action began in the 1980s with President Ronald Reagan and has continued with every president since then. More than 100 law professors and scholars of varying political beliefs have all agreed that President Obama’s executive actions are lawful, he said.
Besides Montana, other states on the federal lawsuit are: Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.