• Leads coalition to uphold federal law against encouraging illegal immigration
• Joins lawsuit to stop unlawful citizenship program

HELENA – Montana Attorney General Austin Knudsen led a coalition of 25 state attorneys general in filing an amicus brief with the U.S. Supreme Court Wednesday in support of a federal criminal prohibition on encouraging or inducing illegal immigration into the United States.

The attorneys general ask the Supreme Court to overturn a Ninth Circuit Court of Appeals decision striking down a federal law that makes it illegal for a person to encourage or induce non-citizens to unlawfully enter or reside in the United States.

“More than ever, illegal immigration imposes tremendous economic, social, and fiscal burdens on the states. The decision below, if left undisturbed, will impede the enforcement of criminal immigration laws nationwide, leading to significant adverse consequences for the [states],” Attorney General Knudsen said in the brief.

Relying on the “overbreadth doctrine,” which allows a federal court to strike down a statute if it would violate the First Amendment in a substantial number of other cases, the Ninth Circuit struck down a federal law preventing people from encouraging illegal immigration. But the panel’s strained analysis that greatly expands this doctrine’s reach, invading the separation of powers between the federal government and the states.

In doing so, the Ninth Circuit’s decisions undermines Montana’s ability to enforce its own criminal laws against encouraging or inducing unlawful conduct. In Montana, such laws include solicitation, promoting prostitution, and sexual abuse of children.

If the Ninth Circuit’s expansive application of the overbreadth doctrine stands, important state criminal laws will be vulnerable to broad constitutional challenges. This undermines the states’ constitutional power to create and enforce a criminal code.

“Allowing the Ninth Circuit’s decision to stand threatens widespread uncertainty in the states’ ability to enforce their criminal laws that use these terms,” the brief states.

To avoid this, Attorney General Knudsen and the coalition argue that overbreadth claims should require a showing more than a hypothetical danger of chilling protected speech and that the charged crime is overbroad.

Attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming joined Attorney General Knudsen in filing the amicus brief.

The amicus brief followed a lawsuit filed Tuesday by a 20-state coalition, including Attorney General Knudsen, against the Biden administration over a new Department of Homeland Security (DHS) program that unlawfully creates a de facto pathway to citizenship for hundreds of thousands of aliens.

The DHS program would establish a new visa system that would allow for up to 360,000 aliens from Cuba, Haiti, Nicaragua, and Venezuela to be “paroled” into the United States every year. But Congress has authorized parole only for immigrants who meet very specific standards that have not been met in this instance. Contrary to existing law, the program creates a pathway for program participants to apply from their home country and gain lawful status to enter and stay in the U.S. for up to two years, or even longer.

As a result of the policy, states will “face substantial, irreparable harms from the Department’s abuses of its parole authority, which allow potentially hundreds of thousands of additional aliens to enter each of their already overwhelmed territories.”

The program increases the burden on Montana’s lawfully present taxpayers since many illegal immigrants pay virtually no state taxes. However, the state is forced to fund resources like education, healthcare, public assistance, and general government services for illegal aliens.

The Biden Administration instituted this program without engaging in the usual notice and comment rulemaking process required by law.

Click here to read the amicus brief.

Click here to read the lawsuit.