Why Governor Deal Must Veto SB 160

The Georgia State Legislature passed SB 160 this last session.  SB 160 manipulates the way HB 87 is implemented, will bring great hardship to many businesses that contract with those who contract with the state, increases the scope of influence of the Immigration Enforcement Review Board (IERB), and likely violates federal law.  

Simply put, SB 160 is Bad for Georgia Business, Bad for Georgia's Economy, Bad for all Immigrants in Georgia, and bad for Georgia's national image.

It is important to understand why SB 160 is bad in so many ways.

Section 1 expands HB 87 (Georgia’s Anti-Immigration law) by modifying its “Definition” of “contractor” to which entities HB 87 applies, and more importantly modifies the requirement in HB87 that the E-Verify requirements for state contractors for building projects to now include all sub and sub-sub contractors of such contractors in EVERY state contract for construction, products or services, with the exception of the lawyers!!  Really, they accepted the lawyers from the law’s application!  This provision means that THOUSANDS of private businesses, essentially because of their privy of contract with a state contractor, will not be subject to the state’s mandatory E-Verify requirement, even if they have less than 11 employees!  The Chamber of Commerce, and the Association of City and County Government should be outraged at this expansion, which is MORE work, MORE compliance, and MORE cost, with no compensation form the state, and with no showing that such extra efforts have ANY value!   For this anti-business provision alone, Governor Deal should veto SB 160.

Further Section 1 can easily be read to expand the scope of complaints that can be submitted to the IERB, a make work group designed to give outlet to anti-immigration gadflies to harass state and local officials on alleged non--compliance with state immigration laws.  I doubt Governor Deal wants to give more power to an unsupervised, non-oversighted government panel.

Section 2 extends HB 87’s E-Verify Requirement and purports to make it the Legislature's intent to require that ICE's overbearing, labor sapping and non-productive IMAGE program become mandatory for every employer in Georgia. While it is not MADE mandatory here, the "intent" of the legislature just might make its way to the IERB in the form a complaint by the anti-immigration gadflies, who seek all Georgia employers to enroll in a program designed for and used by ICE-determined immigration hiring violators.

Section 3 does achieve what the original purpose of what SB 160 was, fixing the problems caused to public entities by the compliance requirements of HB 87, but at what cost?

Section 4 limits HB 87’s compliance requirement to NEW licenses, thus making the Secretary of State's job easier, but again, at what cost?  

Section 5 reemphasizes that the Immigration Enforcement Review Board has an enormous ability to substantially punish state agencies, and county and city governments, should it ever find a "violation" of the state's Anti-Sanctuary policy (a violation of such policy that has never existed in Georgia).

Section 6 eliminates the Federal and Georgia’s Attorney General’s definitions of “Public Benefits” and greatly expands what are prohibited “Public Benefits” under HB 87.  Section 6 adds as “Public Benefits” Grants, Public and Assisted Housing, Retirement Benefits, and State Driver Licenses.  The clear intent of Section 6 was to take away Driver’s Licenses from federal DACA beneficiaries who already have driver’s license under current state law.  Fortunately, this revision to state law cannot do so, because the REAL ID act, a federal law, requires that all individuals granted Deferred Action, are authorized to be granted a driver's license, as it is "lawful presence" under state law.  Also remember that ALL applicants for Georgia driver's licenses must already be run through the Federal SAVE database, causing untold hardship to many legal applicants because of the errors in the database.  Including Driver's Licenses as a state benefit is, essentially, meaningless.  But, Section 6 will require thousands of Georgians who live in public and assisted housing to prove their legal immigration status (including citizens) to continue to receive this "public benefit."  How that saves the state money is yet to be seen, since there were no public hearings on SB 160 in its current version, AND there is no financial impact study concerning its economic consequences.  

Oddly enough, Section 6 also attempts to bar ALL undocumented students from attending any Georgia college or university even if they pay in-state tuition and even if they are DACA beneficiaries.  However, line 238 of the bill is poorly thought out.  It now includes 8 USC 1623 in state law.  This federal statute says, essentially, that no undocumented student can get an in-state tuition benefit if the same opportunity is not offered to an out-of-state student.  This means, then, that if the State of Georgia gives in-state tuition waivers to out-of-state students to entice them to attend Georgia colleges and universities, it can do the same to undocumented students in Georgia! It is quite clear that many state colleges and universities already do this.  Maybe will only take an enterprising undocumented plaintiff to bring this litigation against the Board of Regents to force in-state tuition for “undocumented” students.  Really Governor Deal, SB 160 does not mean what the legislators thought it meant!

In its most controversial part, Section 7 eliminates the use of a foreign passport as a secure and verifiable document, without an accompanying Form I-94 (which WAS proof of status, but which will no longer be issued by Customs and Border Protection agents when they admit someone into the US), or other proof of  "lawful immigration status" OR "lawful presence" in the United states.  The clear intent of this section is to eliminate the ability of any undocumented foreign national from signing to obtain lawful benefits for their US Citizen children.  These benefits include enrolling children in school, receiving WIC benefits for their children, or any of the other benefits the children are legally entitled to receive. 

The Legislature’s use of “lawful immigration status” and “or lawful presence” are also quite interesting.” Under federal immigration law “lawful status” and “lawful presence” are NOT the same thing.  This statute says that EITHER, along with a foreign passport, shows someone’s identity.  While it is not necessary to get into a dissertation on the definitions of and the differences between status and presence, suffice it so say that the legislature has left SB 160 open enough to fly a 747 through.   Many pages, and many court cases, are devoted to these two words and their meaning.  For example, DACA beneficiaries do not have  “lawful status” but they do have “lawful presence” according to DHS. 

Besides being mean-spirited, confusing, and without any merit whatsoever, Section 7 may also be unconstitutional and may involve the state in further federal court litigation.  Specifically in 1835, the Supreme Court of the United States defined a passport as:

A document, which from its nature and object, is addressed to foreign powers; purporting to be only a request that the bearer of it may pass safely and freely, and is to be considered rather in the character of a political document, by which the bearer is recognized in foreign countries, as American citizen; and which, by usage and the law of nations, is received as evidence of the fact. 

Urtetiqui v. D’Arcy, 34 U.S. (9 Pet.) 692, 699 (1835).

This definition lives on today in the United States Code where a passport is defined as:

Any travel document issued by competent authority showing the bearer’ s origin, identity, and nationality if any, which is valid for the admission of the bearer into a foreign country.  8 USC 1101(a)(30). 

The question is can a state within the United States treat the acceptance of a passport differently than the federal government.  At present, the federal government recognizes an expired foreign passport, and a foreign passport without immigration stamps, status or presence information as evidence of a person’s identity.  Just ask the folks at the TSA, or at any of the government agencies who administer federal benefits.  As a country, we also have international treaty obligations that call for us to recognize the identity of the bearer of a foreign passport.  You also have to wonder why Attorney General Sam Olens, when he was asked to create a secure and verifiable document list last year, INCLUDED a foreign passport without limitation?  Perhaps it is because the Attorney General understands federal law and U.S. treaty obligations and sought not to enmesh Georgia in a further nightmare of federal litigation and international embarrassment.  This provision alone is enough to make a veto of SB 160 absolutely necessary.

Section 7 does correct a problem in HB 87 that has caused many problems for the Secretary of State in renewing all kinds of professional licenses, by allowing the Secretary of State to accept copies of these documents, rather than just originals.  Of course, this is a good part of SB 160, but again we ask, at what cost?

Section 8 mandates creation of a new immigration compliance system, which is unfunded but which attempts to resolve a problem caused by HB 87.  Again, a solution everyone agreed on, included in a bill with odious and possibly unconstitutional violations.  Is it worth the trade off Governor Deal?

Section 9 implements all these changes on July 1, 2013.

Finally, Section 10 repeals all contravening laws and statutes, without mentioning them.  

However, there is a key provision missing from this bill -- a severability clause.  Without such a clause, if any part of SB 160 is declared unconstitutional, then the entire bill could well be struck down.  The lack of a severability clause is a serious oversight by the drafters for sure, but perhaps it was done on purpose.  

In light of all of this, it seems that erring on the side of justice, constitutionality, and fairness, Governor Deal should veto SB 160.  After all, the motto of the State of Georgia, the pillars upon which we place our Constitution, are Wisdom, Moderation and Justice.  SB 160 is not wise, or moderate, and certainly does not promote justice.  Governor Deal should lead out on this issue and demand the legislature redo this piece of legislation, disconnect from the anti-immigration rhetoric of the recent past and focus on correcting the errors in HB 87, without causing further damage to Georgia's businesses, economy and national image.