HB 87 Analysis -- The Emperor has No Clothes; Increased Taxes, Unfunded Mandates and Economy Destroying Litigation

A detailed review of HB 87, the purported " Illegal Immigration Reform and Enforcement Act of 2011" reveals that this bill does not reform illegal immigration nor does it enforce laws related to illegal immigration. What it does do is increase taxes on every citizen of Georgia by increasing government regulation, creates unfunded mandates for every county, city, town, and village in Georgia, and creates new private rights of action against every Georgia polity that will absolutely result in hundreds of lawsuits that will drain taxpayer coffers and result in little, if any real change on illegal immigration.

The Faulty Premise of HB 87

Without belaboring the point, this type of legislation is popular because it gives the perception that the state is doing something, which the federal government is purportedly not doing—enforcing federal laws on illegal immigration. The problem with this notion is two-fold. First, the federal government is doing more than it has EVER done in enforcing the laws on undocumented immigration. The Obama Administration is spending literally billions of taxpayer dollars building fences, hiring border patrol agents, detaining undocumented immigrants and actually deported 400,000 people last year—a record. Second, HB 87 DOES NOT create any greater degree of enforcement than already exists under current state and federal law. By September 30, 2010, everyone arrested today in Georgia will be run through the Secure Communities program, and if they are unlawfully present in the United States they will be held for ICE (Immigration and Customs Enforcement) to pick up within 48 hours. Without discussing the deleterious results of this program (DWH—Driving While Hispanic), it has resulted in a record number of cases filling our Immigration Court dockets.

So, if this bill does NOT reform immigration, does NOT effectively increase enforcement, and does NOT make Georgia safer, what does it do? This bill, in conjunction with companion pieces of legislation (SB 27 and SB 3, et. al.), will do more to increase taxes on Georgians, force cities and municipalities to hire previously unnecessary personnel, and make litigation lawyers smile all over Georgia, than any other piece of legislation introduced in the Georgia Assembly in years. This analysis does not go into detail on the statewide ramifications of passing a bill that will most certainly result in calls for boycotts and will certainty hurt Georgia's image as a state moving forward into the21st century. No one of rationale mind can deny that passing this legislation will cost Georgia future headquarters relocations of major corporations and will substantially diminish the likelihood that foreign investors and companies will relocate to Georgia.

The Impact of HB 87

HB 87 has as it main thrust a desire to make Georgia like Arizona. The bill is designed to make it so hard to live as an undocumented immigrant in Georgia, that such immigrants will leave the state. While no official estimates exist, it is estimated that more than 500,000 people living in Georgia do not possess documents to prove that have legal status to be in the United States. Many of these people are husbands, wives, fathers, mothers, sons and daughters of U.S. citizens. Even having that relationship entitles someone in the United States without papers to no immigration benefits. While most illegal immigrants live and work under the radar in Georgia, they have created an indelible economic footprint here, according to a number of experts:

• They account for about $9.4 billion in a state economy of roughly $320 billion.
• They contribute between $215 million and $253 million to state coffers in the form of sales, income and property taxes.
• They account for 6.3 percent of Georgia’s work force, but in some industries they are the lion’s share of workers. Experts estimate that 40 percent to 50 percent of the workers in agriculture — the state’s largest industry — are illegal. See AJC 7/29/10.

If this bill accomplished its purpose—to drive 500,000 people from the state--we could rest assured that it could result in the departure of more than to one million people from the state, along with their tax dollars, investments, talent, and businesses. How would the state face that type of revenue reduction?

Review of HB 87’s Sections

Okay, let's review HB 87’s separate provisions. Generally speaking, there are parts of HB 87 which are clearly constitutional and which no court, state or federal will stop from implementation. There are also at least two provisions of HB 87 which will never be enforced, and which will be struck down as unconstitutional before they go into effect, for the same reasons that similar provisions in the Arizona bill were struck down—Federal Preemption and Constitutional violations.

For those provisions of HB 87 that WILL be in effect and stand no chance of being stopped by a court, it is quite clear that the Republicans at the Gold Dome have not undertaken any fiscal analysis. The fact that the party that presumes to want LESS government in peoples lives, and is supposedly most concerned about fiscal responsibility is pushing this fiscally irresponsible bill is nothing short of stunning. HB 87 will effect the budget of the State of Georgia, and perhaps more important will result in necessary tax increases and/or service reductions at the county, city, town and village level.

Section 3—Private Lawsuits Against Local Governments

Section 3 of HB 87 permits any legal resident of the state to sue any county, city, town or village which does not enroll in and USE E-verify for all of its new employees. E-Verify is the voluntary federal employment verification system with 96% accuracy. Under current Georgia law every polity is required to be enrolled in and use E-Verify. To date, all but a handful of counties are in compliance. What this section does is open up the courts to private individuals to sue any county, city, town or village, which is not using E-Verify, or which the person suspects is not using E-Verify. IF the litigant is successful, they are able to recover all their attorneys’ fees, and the polity will have to pay the local law enforcement folks a fine to be used to train its officers in immigration law enforcement.

The obvious result of this law is that a group of anti-immigration activists will begin suing every polity in the state. The lawyers can take these cases on contingency, because when successful, they are going to get paid by the polity. Does this sound like a recipe for a fiscal nightmare in the counties, cities, towns and villages of Georgia already on the brink of fiscal disaster? The ONLY purpose of this section is scare polities to enroll in E-Verify, under the threat of litigation, thus making each polity have an employee identified under E-Verify as an administrator, receiving training and spending our tax dollars to do something the county is already doing as part of the Form I-9 verification process. This law is also being pursued without there being ANY evidence that any county, city, town or village in Georgia has hired someone who is undocumented.

Section 4 – So-Called “Sanctuary Cities” and Private Lawsuits

Section 4 HB 87 creates a law against any polity enacting “sanctuary” laws designed to not enforce immigration laws within its jurisdiction. (As if that is happening anywhere in Georgia). It also again opens up the polity to litigation if they adopt ANY “regulation, rule, policy, or practice” to prohibit or restrict communication with federal immigration authorities. Once again, this is done without any evidence that such a law is necessary, and again opens up every polity to potential litigation. This will result in taxpayer dollars being spent on unnecessary litigation. Which, by necessity, will result in increased taxes or reduced services.

Sections 5 and 6—SAVE Usage and Private Lawsuits

Sections 5 and 6 of HB 87 again creates the threat of litigation toany polity in Georgia who does not use the USCIS-run SAVE system to verify immigration status of U.S. citizens prior to giving any state or local services. SAVE is an inherently unreliable database which causes delays of more than 30 days in verification for more than 10% of the users of this system, depriving folks of entitled services, driver’s licenses, and business permits. Without repeating everything that was said previously, this means your taxes are going up, or your services are going down. And, note that there is no down side to being wrong about the facts when bringing these lawsuits. This is NOT a loser pays statute. The plaintiff here can just sue and sue and sue with impunity.

Section 7 – Business Killer-- New Criminal Penalties for Businesses and Property Owners

Section 7 of HB 87 takes the vehicle away from anyone who is caught using a day laborer for whom they have not verified documentation. Really. It also finds that person between $5,000 and $20,000, and puts them in jail for at least one year, and possibly for as long as five years. Really. And, that vehicle gets auctioned off and the proceeds go to the local police for immigration training. Now, do you think the local police will aggressively enforce this law? Goodbye farm pickup truck. Goodbye Landscaping truck.

This section also makes it illegal to “harbor” someone who is undocumented. This could EASILY be interpreted to mean that anyone renting property to someone who is undocumented goes to jail and pays a large fine. Do you think this law will encourage property owners from renting to people they “believe” might be undocumented?

This section ALSO makes it illegal to encourage someone who is undocumented to enter Georgia; doing so results in large fines and jail time.

Section 7, when challenged, will be at least partially unconstitutional. It WILL result in housing discrimination, and it will result in profiling and racial discrimination. The legislature here is directly telling Georgia businesses that it not only must do the already mandated Forms I-9 for each short or long term employee, but also cannot necessarily believe the documents presented. Do you not believe that a Georgia law enforcement officer or prosecutor will not say, “how could you have believed that THESE documents were real?” Section 7 will be very bad for business in Georgia. It will be very bad for property owners in Georgia. And it will be very bad for anyone who knows or is related to an undocumented immigrant. Finally, there appears to be NO exemption for attorneys, such that someone who consults an attorney about fixing their immigration status may cause that attorney to be subject to fine or imprisonment.

Section 8—Unconstitutional Police Stops and Reason to Believe

Section 8, appropriately named, deals specifically with the provision of the Arizona law that the Federal Judge found the most problematic—empowering law enforcement to investigate the immigration status of person who they “believe” is undocumented. 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. Hey, who has a problem with the police arresting criminals and checking their immigration status? Well, the legislature for one. The statute 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? 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, was 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 9--287(g) Everywhere

Section 9 of HB 87 makes it mandatory for every state agency to enroll in the federal government’s 287(g) program. Unfortunately, the federal 287(g) program places a number of restrictions on the entering law enforcement agency, including staffing, jail conditions and training that most applicants cannot readily meet. Further, the federal government is only very slowly adding 287(g) agencies, instead focusing its efforts on expanding its Secure Communities initiative. The practical difference between the two programs is that 287(g) programs trains local law enforcement in immigration enforcement issues and effectively deputizes the officers to act in place of ICE in the context of immigration holds and bonds, while Secure Communities merely allows for the local law enforcement officials to verify immigration status, and then hold individuals subject to removal for 48 hours for ICE to pick, without training or deputizing them.

What Section 9 does, however, is once again increase the COST to the local government, without analyzing whether such a program is either necessary, effective, or, frankly, affordable.

Section 10—Peace Office Immigration Training

Section 10 of HB 87, requires the State Corrections Commissioner to send at least 10 “peace officers” to be trained each year under 287(g), to be funded by the Homeland Security Appropriation Act of 2006, or other source of federal funding. This section is only effective if there is federal money. This appears to be a reverse unfunded mandate directed to the feds.

Sections 11 and 12—Enroll in Secure Communities Or Else

Similarly, section 11 of HB 87 requires that the state provide incentives to local communities to enroll in Secure Communities, something that all 159 counties in Georgia will be enrolled in by September 2011. Section 12 of HB 87 requires that anyone detained in any person charges with a felony and detained in a Georgia facility be checked for immigration status. The provision is pure fluff in light of Secure Communities expansion.

Section 13—Bribing Localities to Enroll in 287(g)

Section 13 of HB 87 states that if a county can show they are making efforts to enroll in 287(g), the state will add 10% to the rate of reimbursement for the detention of state prisoners in county facilities. Well, this money is not growing on trees. As noted earlier, there are certain standard levels of detention and staffing that an agency will need to show to be eligible for 287(g) enrollment. To take advantage of this reimbursement increase, the counties will have to spend serious money to get in compliance with federal standards. There is no fiscal effect statement attached to this HB 87, but clearly, there is going to have to be a tax increase, or service reduction somewhere to pay for this.

Section 14—Business Killer—Mandatory E-Verify for All Businesses

Section 14 of HB 87 is one of the real killer provisions for businesses and local governments in Georgia. This section requires that to get an occupational tax certificate (which all Georgia business must have to do business), they must present evidence of E-Verify enrollment. Yes, you guessed it. The federal voluntary program of E-Verify is going to be mandatory in Georgia for virtually employers by July 1, 2012. Keep in mind that this became mandatory in Arizona more than three years ago, and to date only 35% of Arizona employers are enrolled. The reason is that that there was no effective enforcement of the provision. Georgia is now using local cities, towns and villages as the enforcers of this law, without providing them the means, funds, or training to do so. Further, this provision is completely without effect. Nothing stops a business from enrolling in E-Verify, getting the required registration number, obtaining their required occupational tax certificate, then exercising their legal right to withdraw from E-Verify with the require 30 day notice.

Section 15—Photo Id’s Now Needed for Everything!

Section 15 of HB 87 requires that anyone seeking a public benefit present a secure and verifiable document used by the federal government or a state government, with a photograph, showing they are a US citizen, or a qualified alien. The problems with this provision are numerous, and start from the fact that a minor has no photo id to get a benefit, to the fact that someone with a “valid” nonimmigrant status could actually be out of status for a myriad of reasons, and still qualify under this statute. In conjunction Section 16 specifically excludes the use “Matricular Consular” a document sometimes issues by Latin American governments as a photo ID.

The rest of HB 87 deals with severability and enforceability. The reality of this bill is hard to ignore. It is going to cause taxes to go up, services to go down, increase regulation, and hurt our economy, all without any evidence that any provision of this law will actually solve a real problem in Georgia.

SB 27—Business Killer—IMAGE for All State Contractors and E-Verify Enrollment Parameters

A brief word on SB 27, recently introduced by Senator Hill, is also necessary here. This bill will lead to a massive increase in business regulation, the likes of which have not been seen since the tax code was introduced. In this short bill, in section 4, the state will now require all state contractors to use the federal IMAGE program. Essentially, being enrolled in the IMAGE program is like inviting ICE into your HR department, and letting them screen every hire for you. Further, it subjects you to regular and mandatory audits by ICE of your i9s and will most certainly increase your costs for providing services to the state. ICE just established a new part of its agency--a special auditing program soon to be staffed by a 100 auditors coming to see if YOU are in compliance with the law. Being an IMAGE employer means you are mandatorily going to be audited FREQUENLTLY! This is a stunning requirement, because even federal contractors are not required to be enrolled in IMAGE.

IMAGE has been around since 2006. To date, only 13 companies are enrolled, all of them had either been forced to be enrolled by ICE after an audit found continued and substantial noncompliance, or they joined at the strong suggestion of ICE to try to avoid future fines (Tyson foods). As a lawyer, I tell clients you do not want to be an IMAGE employer. It means you have or will be writing checks to the federal government, regardless of how good you believe you're i9 record keeping is.

SB 27 also completely bars contractors from doing business with the state if they have not been enrolled in E-Verify for a set period of time by certain dates. Meaning, you must be enrolled in E-Verify now. Enrolling in E-Verify is something I recommend to all employers today, because it is going to be a federal requirement in the near future, and all companies need to know that federal compliance auditing is coming. But it comes with costs, which include a complete waiver of your 4th amendment right against unlawful search and seizure and a guarantee that ICE is monitoring your workforce and hiring patterns, even, if you believe you are in compliance.

SB 3—Yearly Reports From Localities on Immigration Compliance

SB 3, also introduced by Senator Hill, increase the burden all state polities by forcing each polity to have a persons responsible for immigration compliance and to submit what are presumably yearly reports to the state, or face what appears to be fines and penalties. Failure to comply may even cost the county, city, town, or village it's ability to operate. Here the state is forcing the local polity to do work that has no useful purpose, and a cost that is not reimbursed by the state, during a time of fiscal rises at the local level.

If we can answer any questions about these or any other immigration related pieces of legislation, please contact me.