Montana Passes Anti-Sanctuary Bill

FAIR Take | April 2021

Montana just recently became an anti-sanctuary state on March 31 when Governor Greg Gianforte (R) signed House Bill (HB) 200. While Montana previously passed anti-sanctuary legislation in 2019, it was vetoed by then-Governor Steve Bullock (D).  However, this legislative session was more favorable to the passage of anti-sanctuary legislation because Montana has a trifecta in the state where the House, Senate, and Governorship are all controlled by the same party. Moreover, Gov. Gianforte was a former representative who has been a strong supporter of immigration enforcement and the rule of law. He indicated his strong support for anti-sanctuary legislation in his State of the State address.  In addition, to the anti-sanctuary bill, legislation requiring law enforcement to honor Immigration and Customs Enforcement (ICE) detainers is likely to become law.  This bill, HB 223, was needed as a fix to a Montana Supreme Court decision issued last March.  In Ramon v. Short, the Court held that state law did not authorize honoring federal immigration detainers.

On January 20, Representative Kenneth Holmlund (R-Miles City) reintroduced his anti-sanctuary bill that was vetoed by then-Gov. Bullock. HB 200 bans sanctuary policies by state agencies as well as local governments; it authorizes the attorney general to sue for non-compliance, and it imposes fines and cuts off certain state grants as penalties.

The bill progressed rapidly through the House, passing out of the House Judiciary Committee on January 29 by a vote of 12-7 and then the full House, 66-34, along party lines on February 3.  In debate on the House floor, Rep. Holmlund said “[w]e need to protect the people of Montana and I think we can do that with” the bill. 

The Senate Judiciary Committee held a hearing on this bill on February 18 where the governor sent former Montana Senate President Scott Sales to testify in support of the legislation.  The Committee voted 7-4 in favor of the bill on March 9 and it passed the Senate floor 30-20 on March 16. 

The governor signed HB 200 on March 31, saying the bill “ensures drug dealers, human traffickers, and other criminals who are in our country unlawfully will have no refuge in our state,” and further declaring “[w]e are a nation of laws, and immigration laws will be enforced in Montana.”

The detainer bill to address the Montana Supreme Court decision did not breeze through the legislature as quickly as the anti-sanctuary one. The detainer legislation was introduced on January 22 by Rep. Bill Mercer (R-Billings) who was a top federal prosecutor, serving terms as both the US Attorney for Montana and Acting Associate Attorney General, the third-ranking official at the US Department of Justice (DOJ).  This legislation requires law enforcement officers to comply with immigration detainers. Immigration detainers are legal requests from Immigration and Customs Enforcement (ICE) to state and local law enforcement agencies to hold illegal aliens in their custody for up to 48 hours after release on local charges so the federal agency can pick them up and start or continue the process of deporting them. 

HB 223 advanced through the House and Senate along similar lines to Holmlund’s bill. However, it was slowed when it was amended in the Senate to allow law enforcement not to honor a detainer “if presented with credible evidence” that the person in their custody is a US citizen or legal immigrant.  This required the bill to go back to the House for its agreement to the Senate amendment.

Rep. Mercer said he thinks “Montanans would want their law enforcement authorities to be working cooperatively with the federal government. I think the public is probably very enthusiastic about the idea that illegal aliens are removed through detainers.”

In debate on the Senate floor, Senate Judiciary Committee Chairman Keith Regier (R-Kalispell) also noted a key danger from not honoring detainers: “You know it’s riskier for bystanders, for even for the targeted individual and for federal officers if ICE is forced to go into a community to apprehend an individual rather than just have a transfer of custody in a security environment of a detention facility.”

HB 223 passed the House in its final form on March 31.  It has not been sent to Gov. Gianforte yet but he is expected to sign it when it reaches his desk.