Musings on Immigration

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What Part of Your Oath of Office Don't You Understand?

I have been thinking a great deal recently about all of these state immigration bills proliferating around the United States, and the direct affront that many of them are to the U.S. Constitution. I wonder, do you violate your oath of office as an elected official, whether it be at the local or state level, if you advocate for and work to pass a bill that you know is unconstitutional? We are not talking about just advocating for a change of law within the parameters of the Constitution, but rather actively working to subvert the Constitution and Constitutional principles.

For example, a state senate committee from Arizona's state legislature recently approved a bill
. . . that would deny automatic citizenship to the children of illegal immigrants, a measure designed to set up a possible U.S. Supreme Court case on the issue. [...]

Sponsors of the automatic citizenship bill approved by the Senate panel hope it will prompt a court interpretation on an element of the 14th Amendment to the U.S. Constitution, which guarantees citizenship to people born in the country or who are "subject to the jurisdiction" of the U.S.

Consider that in passing this bill, the state senators who voted for this KNEW the bill was unconstitutional, and were hoping the Supreme Court would change the law. They did this despite the oath of office they had taken. When a state legislator in Arizona is sworn in, this is the oath they take:
I, _____________________________do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of Arizona, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of _____________ according to the best of my ability, so help me God (or so I do affirm).
So, by passing a bill, the legislator KNOWS to be unconsitutional, how are they not violating their oath of office, and thus become subject to impeachment?

The same could be said for Georgia legislators who insist on passing legislation that they know has been found unconsitutional in other states. But, in Georgia, the penalty is slightly different:
Georgia law provides that any public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years. OCGA § 16-10-1.
So, should these anti-immigration pieces of legislation pass as currently written in their unconstitutional state, who is going to prosecute the state legislators? And, then do they not also violate the "rule of law" in our "nation of laws," that they claim to cherish? Perhaps this is all just in the eye of the beholder, but it seems many folks are leaping BEFORE they are thinking. Or, they are just hypocrites.

Utah's common sense and humane treatment of immigrants

With all of the anti-immigrant state legislation going around it's nice to see that Utah has adopted a common sense approach to immigration reform.

Official text of Utah Compact declaration on immigration reform

Deseret News - Published: Friday, Nov. 12, 2010 11:00 a.m. MST

A declaration of five principles to guide Utah's immigration discussion

FEDERAL SOLUTIONS: Immigration is a federal policy issue between the U.S. government and other countries — not Utah and other countries. We urge Utah's congressional delegation, and others, to lead efforts to strengthen federal laws and protect our national borders. We urge state leaders to adopt reasonable policies addressing immigrants in Utah.

LAW ENFORCEMENT: We respect the rule of law and support law enforcement's professional judgment and discretion. Local law enforcement resources should focus on criminal activities, not civil violations of federal code.

FAMILIES: Strong families are the foundation of successful communities. We oppose policies that unnecessarily separate families. We champion policies that support families and improve the health, education and well-being of all Utah children.

ECONOMY: Utah is best served by a free-market philosophy that maximizes individual freedom and opportunity. We acknowledge the economic role immigrants play as workers and taxpayers. Utah's immigration policies must reaffirm our global reputation as a welcoming and business-friendly state.

A FREE SOCIETY: Immigrants are integrated into communities across Utah. We must adopt a humane approach to this reality, reflecting our unique culture, history and spirit of inclusion. The way we treat immigrants will say more about us as a free society and less about our immigrant neighbors. Utah should always be a place that welcomes people of goodwill.

SALT LAKE CITY — Local Latino leaders welcomed a new document backed by a broad spectrum of Utah business, political and community leaders aimed at reframing the heated and emotional debate on illegal immigration. Tony Yapias, director of Proyecto Latino de Utah, called the so-called Utah Compact and subsequent LDS Church statement of support a "game changer" in efforts to reform immigration laws at the state level. And Archie Archuleta, chairman of the Utah Coalition of La Raza, said he now sees some light at the end of the tunnel. But "we hope that the tunnel doesn't collapse."

How much weight the statements carry with the Legislature remains to be seen. At least a dozen immigration bills could be considered when lawmakers convene in January, with Rep. Stephen Sandstrom's controversial proposal being the most publicized to date. "I think it will play in as a factor," said Senate President Michael Waddoups. But in the end, he said, legislators will do what they think is best for the state and their constituents.

The Salt Lake Chamber of Commerce, the Utah Attorney General's Office, the Salt Lake City Mayor's Office, the Sutherland Institute and United Way on Thursday unveiled the Utah Compact, a document outlining five principles, such as urging federal solutions and keeping families together, to guide the immigration discussion. Compact signers include former Gov. Olene Walker and former U.S. Sen. Jake Garn.

A KSL flash poll conducted Friday by Dan Jones & Associates shows 64 percent of Utahns agree with the premise of the compact calling for a civil and compassionate approach to immigration legislation in Utah. Twenty percent disagreed with that notion, while 18 percent didn't have an opinion. Jones surveyed 260 households statewide. The poll has plus or minus 5 percent error margin.

Gov. Gary Herbert did not sign the document. His spokeswoman, Angie Welling, issued a statement Friday saying the governor is "heartened that business, community and ecclesiastical leaders have come together to lend their voices to this effort." Herbert has stressed what he calls a "Utah solution" to the immigration problem.

The Church of Jesus Christ of Latter-day Saints on Thursday released a statement supporting the compact, saying "public officials should create and administer laws that reflect the best of our aspirations as a just and caring society. Such laws will properly balance love for neighbors, family cohesion, and the observance of just and enforceable laws." * * *

Why A Company Should NOT Self-Audit Their Own Forms I-9

Much has been made recently of the increased ICE enforcement activity against employers. The majority of this enforcement activity is directed towards the Form I-9 and whether or not employers have either properly completed the Form, or have somehow knowingly hired individuals who are not authorized to work.

In support of this enforcement activity, in May 2010, ICE released the “ICE Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties.” That agency field manual provides insight into the administrative procedures and penalty scheme for administrative inspections for the agency’s special agents and forensic auditors. This “fine guideline” only briefly discusses the remedial impact of “auditing” a company’s Forms I-9 PRIOR to ICE serving a Notice of Inspection on the company.

There have been countless seminars over the last several years talking about the need for Human Resource (HR) professionals to “audit” their own Forms I-9, and even describing how this auditing should be done. Here is the bad news–companies that audit their own Forms I-9 are not significantly reducing the potential fines and in many situations may actually make matters worse, because much of this audit work perpetuates previous errors made by the same person who is now auditing the forms.

In a recent AILA Seminar on work site enforcement issues, an ICE representative made it quite clear that self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. Examples of massive mistakes made by self-auditing after attending a self-taught “training session” include: redoing all the Forms I-9 and throwing away the originals, separating copies of documents from Forms I-9 and throwing them away, making changes to Forms I-9 without initialing and dating the Forms, and inserting backdated information in Forms I-9 making them appear to be completed timely. Each one of these “mistakes” in auditing has led to massive fines by ICE and even findings of unlawful employment of aliens.

Now, you may be thinking–this could never happen at my organization. We’ve spent countless hours reviewing the proper Form I-9 audit procedure and protocol and have carefully planned our remediation steps. Unfortunately, despite these best intentions, many HR professionals fall into the irresistible trap of trying to “un-do” or gloss over their past mistakes. This behavior is certainly understandable in some respects–internal audits often reveal significant errors, and it’s only natural to want to hide or minimize these mistakes in order to save face and retain one’s job. Unfortunately for the employer, ICE typically regards these Form I-9 cover-ups (no matter how innocent ore misguided) as serious matters which may lead to charges of falsification, perjury, and document tampering. In today’s pro-enforcement Form I-9 regime, employers simply cannot afford to be caught in such a perilous (and avoidable) situation.

Employers must also recognize that auditing Forms I-9 is not just about making corrections and completing new forms. In many instances, employers will first need to decide if they can remediate the error at all, and then plan appropriate corrective measures to satisfy ICE and avoid any potential discriminatory issues. The complicated nature of auditing Forms I-9 was made even more apparent on February 23, 2010, when ICE provided policy guidance concerning the applicability of the Federal Omnibus five-year statute of limitations provision in employer sanctions cases. Therefore, Form I-9 audits require the auditor to make determinations as to the running of the statute of limitations for paperwork violations (from the correction of the I-9’s), timeliness violations (from the second and fourth day of employment) and knowingly hiring or continuing to employ violations (from the termination of the employee). ICE also reiterated its continuing use of the Virtue Memorandum’s interpretation of the 10-day notice paperwork good faith defense.

The bottom line on auditing Forms I-9 is this–much like completing the world’s most complicated one-page form, auditing the Form I-9 is fraught with potential for increasing, rather than decreasing penalties and fines, and best left to those with substantial experience in the field. An organization’s best practice is to complete a yearly audit of the Forms I-9 using an immigration attorney with experience in Form I-9 compliance. Any other type of audit will always leave an organization wondering whether or not the audit done in-house actually left their employer compliance program in worse condition.

Testimony Before the Georgia House Judiciary Committee on HB 87

I thank you for the opportunity to speak to you today about HB 87. My background in immigration law goes back more than 20 years. I practice law here in Georgia, I teach immigration law at the University of Georgian as an adjunct professor of law. I am the past national president of the American Immigration Lawyers Association. I testify today as an expert in immigration law. There are good public policy reasons to not pass this bill. Others I am sure will discuss those. I want to focus on the legal reasons why this bill is not ready for passage.

The title of this bill is the Illegal Immigration Reform and Enforcement Act of 2011. It does not, however, reform illegal immigration or its enforcement. This bill will cause the state and its local governments to face increased litigation, fail to carry out the purported mission of this legislation, and will result in increased costs and taxes to local governments and businesses in Georgia. It will do all this because it does not comport with federal law, includes clearly federally preempted sections, and does not do what the purported purpose of this bill says it does. And despite what one Representative stated at a prior hearing, the Supreme Court has identified at least four provisions in Article 1 of the Constitution which give Congress plenary power over all aspects of immigration law. There is no 10th Amendment argument reserving any power to the states to regulate immigration. To state otherwise is disingenuous and without legal basis.

Representative Ramsey stated that the reasons for drafting this bill included the purported use of public benefits by undocumented immigrants. He produced no evidence that this is actually happening. Has there been a study done in the last 12 months on the use of “public benefits” used by undocumented immigrants in Georgia? No. Simply stated, welfare, food stamps and unemployment assistance, the largest “welfare” benefits, are simply unavailable to undocumented immigrants by existing law. This bill does not effectively address items that are not already required under state law. For example Georgia already includes mandatory SAVE review of all benefits applicants, thus ensuring, as best as that database can, that only legally authorized immigrants and citizens access public benefits. So, why the private lawsuits?

Representative Ramsey also sited a number of $2.5 billion as the cost of illegal immigration in Georgia, without also noting that illegal immigrants contribute more than $9.4 Billion to Georgia’s economy, and pay millions of dollars in taxes. I am not saying that illegal immigration is not a problem, nor am I saying that I want illegal immigration. I do not. No one, including illegal immigrants, benefit from their situation. What I am saying is that you need to see the WHOLE picture before you vote to pass this legislation out of committee.Where there are expenses, there is also income.

Representative Ramsey also stated that Georgia had to do “something” because the federal government has not acted on illegal immigration. This is simply not true. This last year, the Obama Adminstration deported a record number of people, almost 400,000. More miles of the “fence” were built then ever before. More than $4 BILLION dollars were spent on border security and enforcement. More than 36,000 immigrants are held in detention centers on any given day of the year, on their way to being removed; and ICE just announced a new employer enforcement center, which is aggressively auditing employers who violate the employer sanctions laws, all around the United States and here in Georgia. It is a myth that the Federal Government is doing nothing. In fact, the federal government is doing more than it has ever done before, but do not expect a miracle. Estimates are that it would cost more than $135 billion dollars to remove everyone, and it would have a devastating impact on the economy by doing so. This should NOT be a reason to pass ineffective state legislation on an issue that is, frankly, beyond the scope of expertise of the state.

My first concern with this legislation goes to cost -- where is the Fiscal Note on this bill? Even Representative Ramsey said this bill is going to have a potentially large negative fiscal effect on the state and local governments. Why would you pass a bill with certain negative economic impact, and potential tax increases, without knowing exactly what you were doing? We know that similar state legislation in Utah was just found to carry an $11 million dollar price tag. Utah is a 1/3 the size of Georgia in population with only 29 counties and a handful of cities compared to Georgia. Can you imagine what this legislation will cost here?

I also have concerns about virtually every section of this bill from a legal perspective. Sections 3, 4, 5 and 6 of this proposed legislation contain the threat of unlimited litigation with no deterrence to filing lawsuits.Simply requiring potential plaintiffs to notify the local government before suing does not stop the litigation.Who is going to pay to defend from frivolous lawsuits? Frankly, the only thing that might serve as deterrence to frivolous lawsuits would be a loser pays system. More importantly, there is no proof of non-compliance required this law prior to lawsuits being filed. 158 of the 159 Georgia counties are enrolled in E-Verify, and the other is in the process of allocating resources to make this happen. I suggest first seeing if these provisions are actually necessary before passing them. Where are the studies showing a NEED for this legislation?

Section 7 of this bill deals with seizures of vehicles for transporting undocumented immigrants, the harboring of undocumented immigrants, and the encouraging of an undocumented immigrant to enter Georgia. This particular provision the Federal Judge in the Arizona legislation found was NOT preempted by Federal law, BUT the judge did not rule if this legislation was constitutional, on say, vagueness grounds. This provision is written in such a way that it does not exclude Churches (as does federal law), when say, the pastor drives someone who is undocumented to Church, and is speeding on his way there. The provision that this law is only effective in the context of another legal violation does not reduce it vagueness. What other violation?Tax evasion, trespassing, or a zoning violation? When does it have to occur?

Human smuggling is already illegal in Georgia and the United States, this bill does not change or enhance that.Further, in the provisions in this law which are somewhat different from the AZ law, e.g. effecting the bringing of “someone” to the U.S., federal law excludes prosecutions for immediate family members, this legislation does not, thus making it likely preempted by Federal law.

Section 8 of this bill, relating to traffic stops, was found preempted by federal law, and is still, even with the purported changes not making it mandatory (any law that says “shall” is mandatory). Further, I have concerns about how this bill affects victims of Domestic Violence. I have had a least two clients in the last year who were arrested after they complained about domestic violence, and then were detained, as victims, while an immigration check was run. Please understand, that means that a victim was detained. Something expressly forbidden, but which happens because of legislation like this.

Section 9 urges 287(g) enrollment by counties, which is already mandatory under state law. Recent reports show that 287(g) has serious programmatic issues. Enrollment is not really a local government option, as ultimate enrollment is up to the Federal Government, which is also resource constrained. This section is simply unnecessary.

Sections 11 and 12 deal with Secure Communities. These sections are also unnecessary as the federal government has already committed to installing this program in all Georgia counties by September 30, 2011.These provisions are essentially fluff and are unnecessary.

Section 13 gives counties an extra $2 a day if they enroll in 287(g)! Why? Even if this were a substantial sum, where is it coming from? This provision is essentially meaningless.

Section 14 mandates E-Verify for all, well, not really. What is written here will not ensure E-Verify enrollment by all Georgia business. It specifically exempts tens of thousands of small business, which are exactly the type of businesses who don’t currently use E-Verify. Has there even been a study to show how this will affect businesses, or how effective this requirement will be? How many counties require a business license or a tax certificate? How many enforce that rule? Arizona made this the law 5 years ago, and to date, only 35% of AZ businesses are enrolled. E-Verify has other problems as well. To date, 238,000 employers have enrolled in E-Verify nationally. I encourage my client employers to enroll in E-Verify. And, I am enrolled in E-Verify, by choice. But, that is out of more than 11,000,000 employers in America.

Much is made of the fact that it is very easy to enroll in E-Verify. To one committee member it only took 20 minutes. My question is this. Did he read the 13 page Memorandum of Understanding that waives the company’s right under the 4th amendment? Further, this Arizona mandate is on appeal to the Supreme Court.It is unclear which way the Supreme Court will rule. Once concern with this mandatory enrollment is whether the STATE can require a waiver of the 4th Amendment rights for no consideration.

Congress will eventually make this mandatory, but for now has chosen not to. It remains unclear whether a state can require a business to waive it federal constitutional rights. The provision has other flaws; it only gives business three days to comply, when federal regulations give a business 4 days to do so. Further, only FUTURE employees can be screened; current employees cannot, so it does nothing to resolve the current issue of unlawful employment.

Finally, Section 15, which bans the use of the Matricular Consular by State and Government agencies.Why don’t you just say that? Why all the other unnecessary and confusing language, which only puts an onus on the Attorney General to publish an ever changing list of acceptable documents. Also please note that by the definitions and language of this proposal, the list of acceptable documents must, of necessity, include foreign passports?

As you can see, there is MUCH to change, edit, or remove from this legislation, which is clearly not ready for primetime. Is the Georgia State Legislature really ready to put this bill into law, and put at risk Georgia Governments, Georgia Businesses, and Georgia’s People? I urge you to send this bill to defeat, until there is actually evidence and support for its provisions, and meaningful reasons to enact it, rather than allegations, myths, and innuendo. Our laws should DO something effective; they should not be passed just to say you are doing “Something” about a broken federal immigration system.

Thank you.

It It Walks Like a Duck . . . .

Yesterday during the second public hearing on HB 87 before the Georgia General Assembly's House Judiciary Committee, the bill's author and at least two sponsors presented a rather startling new tactic. They each stated, and the Chairman did so quite vociferously, that "HB 87 is NOT like the Arizona law." The Chairman argued that it was very different from the Arizona, without actually distingushing how his allegation of non-similarlity was actually correct.

So, if HB 87 contains at least three of the controversial provisions found in the Arizona law, how is it NOT like the Arizona law? If HB 87 has as its primary purpose to chase immigrants out of Georgia, how is it NOT like the Arizona law? If HB 87 will have the same deliterious effects on the economy and small business, how is NOT like the Arizona law?

Mr. Chairman, if it walks like a duck, and quacks like a duck, then, it is a duck. HB 87 (and its companion piece SB 40), is like the Arizona law. You can say it ain't so, and perhaps you can fool a few people, but we all know what is going on here.

How Much will SB 40 and HB 87 Cost?

Why is no one asking how much SB 40 and HB 87 will cost the state of Georgia taxpayers? The startling numbers for the similar Utah legislation just came down--$11 Milllion Dollars! And that is in a state a third the size of Utah. Ask your Georgia Legislature today--how much "enforcing" federal law is going to cost the State of Georiga.

SB 40—The Emperor STILL Has No Clothes, or Exhibit A in Why States Should Not Attempt to Legislate on Immigration Matters

If you thought HB 87 was the wrong path to follow to try to fix the problems associated with illegal immigration, then do not get on the SB 40 Super Highway. SB 40 has so many inconsistencies, incongruities, and flat out confusing sections that if by some miracle it is passed, it would never see the daylight of its effective date.

As with HB 87, it is not just the intent of this bill that matters. The actual wording of the bill, and its changes to Georgia law, are essential to an understanding why this bill will NOT stop illegal immigration, will NOT stop bad actor employers from hiring people who are undocumented, and will NOT in any way solve the problems associated with a broken FEDERAL immigration system.

SB 40 is much shorter in length than HB 87, and somewhat less expansive in its scope. Yet, it still manages to violate the constitution, misquote federal law, and create penalties for innocent mistakes. For example, the private right of action that is so pervasive in HB 87 is simply nonexistent in SB 40.


A review of the individual sections of SB 40 reveals its scope; it has to, since SB 40 has no name. That’s right Senator Murphy chose not to name his bill, jut describe it. What the bill fails to describe though, is Senator Murphy’s awkward attempt to exempt the largest sector of Georgia’s economy from compliance with the mandatory E-Verify requirement, at which it fails miserably. Let’s take a peak behind the curtain.

SECTION 1 –What Passes for Definitions

Section 1 of the bill creates a definition of “Agency Director” broad enough to include any individual in government with senior, elected, or oversight responsible for public policy for any public employer. Obviously, the expansion of the term “Agency Director” far beyond its ordinary meaning (e.g. head of an agency) is going to be essential element of other Sections of SB 40.

Section 1 also defines “federal work authorization program” to mean any federal government program to verify information on newly hired employees. The problem with this rather vague definition is that it could mean SEVERAL different programs, including E-Verify, SAVE, IMAGE, or any other program currently in existence or being developed by the federal government. This Section also defines a rather odd phrase: “Physical Performance of Services.” It is defined to mean PUBLIC works projects.

SECTION 2 – Immigration Compliance Issues for Public Employers and Contractors -- Bad Public Policy and Unenforceable

Section 2 then amends already existing Georgia law requiring public employers and state contractors to enroll in E-Verify, by requiring that these same public employers and state contractors to submit an “Affidavit” from any new contractor or subcontractor verifying compliance with the E-Verify requirement.

Section 2 then takes the current prohibition against suing polities and employers and allows suits against “Agency Heads” and hits with severe penalties the specific “Agency Head” who fails to have his “agency” comply with this law. It also suspends any state financial aid to public employer.

Section 2 also takes the rather remarkable step of going far beyond the federal requirements for document retention of employment verification documents (one year from date of termination or three years from date of hire, whichever is longer), and requires public employers to maintain immigration documentation (the Form I-9, and supporting documents) for five years (although it is unclear whether this means for 5 years AFTER termination, or for five years from the date of hire).

SECTION 3 – The Full Monty—E-Verify for All, Until a Judge Looks at It! -Void for Vagueness and Preempted by Federal Law

Section 3 makes E-Verify mandatory for every employer in Georgia, and shortens the federal time frame for using E-Verify on new employees, from the current 4 days to 3 days. This is likely just an example of the fact that the person drafting this bill did know or understand federal law; but it is still a deviation from what the federal government has set as the standards for employer compliance. The law then violates federal law by requiring the employer to maintain these records for 5 years, when the employer could, technically only have to maintain them for three years from date of termination if the person is terminated on day one of employment. This provision will clearly be struck down as preempted by Federal law. This area of law is completely preempted by the Federal employment verification process, and requiring more compliance in this area will simply not be found to be permissible.

Now, I need to note a key error in this Section. It says that “every employer operating under a business license” is required to register and use E-Verify. I don’t know if any one at the state legislature knows this or not, but Georgia does not have business licenses. They have tax registration certificates. So, technically, this Section would apply to no one!

Another MAJOR flaw with this Section is that it specifically exempts from such compliance requirement any employer who has “filed an H-1 or H-2 application, or similar type of application, with the United States Department of Labor.” This apparently was Senator Murphy’s way of trying to exempt the agricultural sector of Georgia’s economy from compliance. The only problems are that first, tthere is no such thing as an H-1 or H-2 applications; second, if Senator Murphy meant H-1B, H-2A an d H-2B applications, then every employer in Georgia who has hired an alien worker under these visas is going to be very happy to not have to comply with this provision, including, banks, engineering and accounting firms, computer consulting companies, landscapers, and farmers, and virtually every other industry in Georgia; and third, the United States Department of Labor does not adjudicate visa petitions (which this must be vaguely referencing), the Department of Homeland Security does. Frankly, it is truly embarrassing that a state legislator thought so little of the law that he wants passed and which he introduced into the public discussion, that he did not even consult with someone who actually understood federal immigration law. This provision is so vague that it would have to be stricken from the law the moment it is challenged. This really shows why a state should not be addressing federal immigration issues.

Section 3 also imbues the “Commissioner” with the power to investigate violations, including subpoena power, and for fines and penalties to far exceed those currently in place in the federal verification system. While these provisions purport to send a strong message encouraging compliance with federal verification requirements, they do nothing to actually ensure compliance because there is simply no funding allocated for the accomplishment of its purpose. Without actual funding this provision is essentially useless.

Section 3 then does something that is so remarkable in its utter uselessness that it causes one to pause and ask—did the person who wrote this actually use the internet? This part of Section 3, mandates that the Commissioner” ask from the Department of Homeland Security a list of companies in Georgia enrolled in E-Verify every six months. Why? This information is already publicly available to any person with a computer and access to the internet!

SECTION 4—Carry Your Papers Please!! – Preempted by Federal Law

Section 4 takes the Arizona Law and brings it to Georgia, mandating, in archaic language and citing federal law no longer in use, that all aliens carry with them at all times evidence of their immigration status. Section 4, citing to the Alien Registration Act of 1940, demands that every alien who is “required to register under federal law” carry with them proof of such registration. Unfortunately, aliens are not required to “register” under federal law unless the Attorney General so mandates. And except for a brief period in the previous decade, there has been no such registration requirement for more than 50 years. Oops! Perhaps whoever wrote this provision should have consulted with an immigration lawyer who actually understands federal law!

More importantly, Section 4 is one of the provisions of the Arizona law which was specifically found to be unconstitutional by a federal judge, for the very specific reason that this type of requirement of carrying documents verifying status is preempted by federal law. There is zero chance any court will find otherwise. So, why is this provision in SB 40? Good question.

SECTION 5 -- “Illegal Aliens” and Show Me Your Papers—Unconstitutional

Section 5 of SB 40 attempts to define something not defined under federal law—the nonexistent and intentionally offensive term “Illegal Alien.” And, it defines it in such a way that it could mean literally any person who breaks any federal law. Senator Murphy wants to define an “illegal alien” as “a person who has come to, entered, or remains in the United States in violation of federal law.” What? This provision, the first time it is used in a prosecution is going to be struck down for vagueness. Any person? So, a citizen who does not pay all their federal taxes because the improperly claim an exemption is an “illegal alien.” WOW, that is broad

Section 5 then goes on to mirror that part of HB 87 which allows a police officer to “ask for papers” anyone they have a reasonable cause to suspect is an “illegal alien.” Again, as in HB 87, this provision will be found to be unconstitutional. The law tries to change the language of the Arizona statute by saying the law enforcement officer must have stopped the “criminal suspect” and have “probable cause” to believe the person committed the crime before obtaining their “reasonable suspicion” that the person is undocumented. No one has a problem with the police arresting criminals and checking their immigration status? But, that is not enough for the state legislature. This Section EXPANDS the definition of criminal related stops to now include “traffic offense!” So, if you thought speeding was a simple traffic violation, think again. It is now a criminal offense in Georgia. And, what about passengers in vehicles, or other occupants of a house, or other people at the business --can they be questioned about their status too? This provision has long reaching and very severe implications for anyone who is a friend of the Constitution.

Of course anyone who is found to not be legally present during this investigation will be turned over to ICE. The problem with this statute, as enunciated by the Federal Court Judge who already ruled on it, is that it impinges on the federal immigration enforcement process, and burdens legal immigrants and subjects them to unwarranted detention. The tiny modification made to the HB 87 from the Arizona legislation does NOTHING to change the effect of what the statute is doing, and thus it will also be unconstitutional.

Section 5 does something more though—it directly violates federal law, which states that local authorities may NOT hold any one on a federal immigration hold for more than 48 hours, by allowing state authorities to hold a person they suspect is an “illegal alien” for up to 7 days. Simply put this law directly violates existing federal law, and will be found preempted and unconstitutional as a result. It does not matter what crime you commit, the Constitution simply does not let you hold someone in state or federal criminal custody for 7 days without a hearing.

SECTIONS 6 and 7 – Public Agency Nightmare—Agency Heads are Getting the Boot

Section 6 and 7 once again define “Agency Head” in the context of another statute, and authorizes the same type of civil and criminal penalties against the “Agency Head” for failure to comply with the verification of identity for the provision of any public benefits by a public entity. This is different from HB 87, which allows private citizens to sue the political subdivision for non-compliance, but it leads to the same results for local governments - increased costs, lessened services, and a likely need to raise taxes.

SECTION 8—Severability for Unconstitutional Sections—This Will be Needed

Section 8 provides, with proper foresight, that should a Section of SB 40 be found to be unconstitutional, that the other Sections would “live on.” From my review of SB 40, this particular Section is absolutely necessary.

SB 40 Is Bad Public Policy

Like its companion piece in the House, HB 87, this bill does nothing to stop illegal immigration and does nothing to solve the problem of a broken immigration system. But it DOES increase government regulation, and will certainly lead to tax increases, lower employment as a result of unnecessary regulation of private business, and fewer government services. In an economy struggling to recover, you would think that State Legislators would actually be doing something to make Georgia better, not tear it down.