What HB 87 Means for You, Your Business and for Georgia (and it's not good)

The dust has settled and it appears clear that Governor Deal will sign HB 87. We are now left with the detritus of Rep. Matt Ramsey's "work" on the most anti-immigration bill passed by a state legislature in modern times. The question everyone is asking is "what does this mean for me?"

Let's take a look at what the individual sections mean for the people, businesses and the economy of Georgia.

As we prepare to bring litigation in Federal Court, the starting point for that litigation and the starting point for anyone who looks at this bill must be the title of the bill. It is called the "Illegal Immigration Reform and Enforcement Act of 2011." HB 87 then says that this bill contains the following actions:

Provides penalties for the failure of a public employer to utilize E-Verify;

Requires certain private employers to utilize E-Verify;

Provides for the offense of aggravated identity fraud;

Provides for the investigation of "illegal alien" status;

Provides authority for law enforcement officers to enforce federal immigration laws, and provides them immunity for doing so;

Provides for training (unfunded) for peace officers for enforcement of immigration laws;

Requires proof that private businesses are participating in E-Verify system prior to issuance of a business license;

Provides for the verification of the immigration status of foreign nationals arrested and held in county or municipal jails;

Gives authority to local authorities to enter into 287(g) agreement;

Penalties agency heads for failure to abide by certain state "immigration laws"; and

Establishes the "Immigration Enforcement Review Board."

That is a lot more than what most people think this bill did, but oddly, also a lot less. HB 87 is expansive, all-encompassing, violates the Constitution in a variety of ways, and parts of it will certainly be the law in Georgia in perpetuity. And the same time, it really does nothing to stop illegal immigration.

What does the bill do?

SECTION 2 -- Some Definitions

Section 2 of HB 87 has added definitions of the word "Contractor" and "Sub-subcontractor" to the section of state law that requires E-Verify usages by state contractors. The purpose of these added definitions is made clear in Section 3, which section includes the existing burden for local governments to post to their website each year their respective E-Verify user number, or now if they do not have a website (really?) to give that information to the Carl Vinson Institute of Government at the University of Georgia for it to post each year.

Section 3 -- E-Verify, Government and Public Contractors

Section 3 adds additional compliance work to that now required for local governments to ensure not only that public contractors are enrolled in E-Verify, but that any subcontractors, or sub-subcontractors are also enrolled in E-Verify, or if they are individuals, that their driver's license or state issued ID card be given as proof of compliance with this requirement (there is a bizarre and illegal exception to this rule which I will explain below). Under Section 3 there is the additional burden that contractors under this section provide all the required affidavits, driver's licenses and ID cards to the local government within five days of receipt. The form of affidavit to be used will be created by the Department of Audits by August 1, 2011 (even though this law is effective on July 1, 2011), for used by public contractors. Then, as if this was not enough, the local government must, by December 31 of each year, submit a compliance report to the state auditor certifying compliance with the provisions of these new sections. The State Audit Department (subject to available funding--of which there is none), is supposed to conduct annual compliance audits on 50% of the reporting agencies and publish the results of these audits by September 30 of each year. Don't hold your breath waiting for these reports!

There are, of course, the obligatory penalties for failure to comply with these new requirements, the most onerous of which is if a local government/agency fails to comply with these requirements twice in any five year period, their funding will be cut by 10% automatically for the next year (the formula described in the statute is more complex, but the basic math is correct.)

Section 3 also rains down penalties on all contractors, subcontractors, and sub-subcontractors for not properly complying with these new requirements, including the preclusion of bidding on state and local government contracts for 12 months.

Simply put, Section 3 has added a significant new burden to state agencies and local governments to ensure compliance with existing E-Verify rules, and places additional expenses and compliance requirements on government contractors. All of these new requirements will come at additional expense to the taxpayers of Georgia, but unfortunately we do not know at what exact cost, because the Georgia Legislature ignored its on rules (e.g. it did not follow the "Rule of Law") as it pertained to a Fiscal Note on this bill. But rest assured, you are going to be charged more for the work done for the state and local government by private contractors.

Sections 4, 5 and 6 -- Going to Jail for Feeding your Family

This new crime reminds me so much of the play Les Miserables, where Jean Valjean is sentenced to years in prison for stealing a loaf of bread to feed his sister's starving child. A variation of this new crime was in the Arizona bill and was found unconstitutional. But his new crime is one step farther than the Arizona law, thus making HB 87 even more onerous than SB 1070 from Arizona. Simply put, if you use a fake id (of a fake, dead, or real person), in order to "obtain employment," you will be guilty of "aggravated identity fraud" and will be sentenced to state prison for up to 15 years and face up to a $250,000 fine. Don't rub your eyes. I told you about this in previous blogs. Heck , in Georgia, you only go to jail for 5 years for having sex with a 16 year old, or just less time for human trafficking! Ignoring the blatant fact that the punishment does not fit the crime, and thus would likely violate the 8th Amendment pertaining to cruel and unusual punishment, this section is also preempted by federal law. Let me explain.

The Immigration and Reform and Control Act of 1986, otherwise known as IRCA, not only granted amnesty to 2.7 million people and created the entire employer compliance scheme, but it also did one very important thing. It created federal control of employment of foreign nationals in the United States. This means that ONLY the Federal Government can legislate in the control AND punishment of aliens working in the United States. As the 9th Circuit noted in USA v. Arizona:

The text of the relevant IRCA statutory provision—8 U.S.C. § 1324a—also supports this conclusion. Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization. 8 U.S.C. § 1324a(b). The verification process includes a requirement that potential employees officially attest that they are authorized to work. 8 U.S.C. § 1324a(b)(2). The statute provides that the forms potential employees use to make this attestation “may not be used for purposes other than for enforcement of this chapter and” 18 U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C. § 1324a(b)(5). These sections of Title 18 criminalize knowingly making a fraudulent statement or writing; knowingly making or using a false or stolen identification document; forging or falsifying an immigration document; and committing perjury by knowingly making a false statement after taking an oath in a document or proceeding to tell the truth. This is the exclusive punitive provision against unauthorized workers in 8 U.S.C § 1324a. All other penalties in the scheme are exacted on employers, reflecting Congress’ choice to exert the vast majority of pressure on the employer side.

. . .

In addition, other provisions in 8 U.S.C. § 1324a provide affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work.

Quite clearly, the Federal Government controls this area of the law. When the litigation is brought challenging this section, it appears likely that this new "crime" of feeding your family by working with fake papers will be struck down as preempted by federal law, if not found unconstitutional under the 8th Amendment.

Section 7 -- Transporting, Harboring and Inducing (and Some Hearsay Added for Flavor)

What can you say here, but Wow! Did anyone actually read this section before it was passed into law? Much was made last year about the fact that many Congressman and Senators did not read the Healthcare legislation before it was passed. My question is did ANYONE read HB 87 before it was passed? If so, they were not paying attention.

This will get a little strange so follow me here. HB 87 purports to makes it a crime (first a misdemeanor and then a felony) for any person to give a ride to an "illegal alien" or to give aid or help to an "illegal alien," or to "induce" an "illegal alien" to come to Georgia (even if he is your brother in law). Let's look at the actual language of the statute. Section 7 first defines what an "illegal alien" is. This definition is necessary because it does not exist anywhere else. There is no definition of the words "illegal alien" in federal law, and in fact those words are only used two times in the entire 500 or more pages of the Immigration & Nationality Act. Also, if you remember in a previous blog I pointed out that the first definition that Rep. Matt Ramsey had come up with for "illegal alien" likely included every person in America! The new definition is as follows:

"Illegal alien" means a person who is verified by the federal government to be present in the United States in violation of federal immigration law.

The crime for transporting (which is essentially the same in wording as that for harboring and inducing) reads as follows:

A person who is acting in violation of another criminal offense [a traffic violation in Georgia is a criminal offense], who knowingly and intentionally transports or moves an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the alien in the United States shall be guilty of the offense of transporting or moving an illegal alien.

Ignore the fact that HB 87 does not define "furthering the illegal presence" for a minute. Read the definition of the term "illegal alien" INTO the statute. Did you do that? If you read it as written, which is exactly what you have to do in order to be convicted under this statute, the only way to actually be convicted of this crime is if you, the person driving the motor vehicle, have received verification from the federal government that the person you are moving or transporting is present in the U.S. in violation of federal immigration law!!!! It does not matter if the person who is undocumented told you he was out of status or "illegal." It does not matter if you should have known he was illegal. The prosecutor will actually have to show that you had federal government verification of that fact! Do you know what that means? No one can be convicted under this statute!

The same rational applies to the harboring provisions, but actually goes a step further. Under the harboring portion of Section 7,"harboring" is defined as:

any conduct that tends to substantially help an illegal alien to remain in the United States in violation of federal law . . .

.

Once again we are faced with a definitional problem. What does "substantially help" mean? No one knows, so how can a person actually harbor an "illegal alien?" Let's suppose that some creative judge or prosecutor comes up with a definition, and then we are faced with the problem of who can actually be convicted of a crime under this section and who cannot. Clearly, there are three groups of people who cannot be convicted of harboring:

1. a person providing services to infants, children or victims of crimes;

2. a person providing emergency medical services (hospitals, ambulance drivers, etc.), or

3. an attorney representing a criminal defendant.

There is also another type of person who presumably cannot be convicted of harboring: a person providing privately funded social services. We have no idea, however, what this last provision means. It is a social service organization that is recognized as such by the IRS? Is it one that receives NO public monies (virtually none of them), or one that receives at least a dollar of private funding? No one knows what Rep. Matt Ramsey was thinking here. And since there were no public hearings on this provision, no one will know what it means. Well, that actually is not true. We do know at least what it does NOT mean. It does not include churches. Churches are clearly NOT "privately funded social services" under any definition of those words. Churches are house of worship and organized religions that provide aide to those in need. Churches are classified differently from social service organizations under the tax code, and recognized differently under the Constitution. So a word of caution to all you religious folks out there--be careful about being a Good Samaritan, or don't and demand that the state prosecute you for doing service. After all, What Would Jesus Do?

Frankly, the harboring provisions in Section 7 are such a mess, that they are arguably in violation of the Due Process clause of the 14th Amendment, the 5th amendment right to counsel (criminal defense attorneys are not defined in this statute and certainly are not the only ones involved in criminal defense), and the 1st Amendment as well. More importantly, these provisions all clearly require federal government involvement in their enforcement. Something the 9th Circuit noted in USA v. Arizona was quite unconstitutional:

[SB 1070] interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws

This is exactly what Section 7 does.

Another key issue of Section 7 is its failure to cure the problem noted previously in the blog of the new rule allowing hearsay evidence to convict someone of one of these crimes. The State Legislature has decided that is okay for the government to prove someone's immigration status by having a witness testify that a federal government agent "told" him the person was undocumented. So much for Due Process!

There, of course many other problems with Section 7 which will be highlighted in the litigation in this case. Suffice it to say for now that getting convicted under these new criminal laws is barely even a remote possibility.

Section 8 -- Show Me Your Papers, Please!

Here it is, the show me your papers please law, brought to you by the State Legislators of Georgia! A similar provision was found unconstitutional in Arizona. Here is the process now in Georgia:

During any investigation of a criminal suspect by a "peace officer" [undefined], when such officer has probably cause to believe that a suspect has committed a criminal violation [again, which includes traffic offenses in Georgia], the officer shall be authorized to seek to verify such suspects immigration status when the suspect is unable to provide one of the following:

(1) A secure and verifiable document as defined in Code Section 50-36-2 [the new Secure and Verifiable Identity Document Act that is part of HB87, Section 19]

(2) a valid Georgia's Driver's License;

(3) a valid Georgia Identification card . . . .;

(4) If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issue by the United States federal government ;

(5) A document used in compliance with paragraph (2)9 of subsection (a) of Code Section 40-5-21 [a valid license from a person's home country]; or

(6) Other information as to the suspects identify that is sufficient to allow the peace officer to independently identify the suspect.

Helpfully, Section 8 (how appropriately named), also prohibits the officer from using race, color or national origin in enforcing this section, but, of course, does not prohibit consideration of accent or English capability, dress style, or even the type of shoes someone wears.

There are many problems with Section 8 that make it easily challenged in Federal Court. Not the least of which is that it does not cure the problem that affected the Arizona statute--the impact on the federal government. You see, it is not the WORDING of the statute that was a problem; it was the EFFECT of the statute:

In sum, we are not persuaded that Arizona has the inherent authority to enforce the civil provisions of federal immigration law. Therefore, Arizona must be federally authorized to conduct such enforcement. Congress has created a comprehensive and carefully calibrated scheme—and has authorized the Executive to promulgate extensive regulations

—for adjudicating and enforcing civil removability. S.B. 1070

Section 6 [which is similar in effect to Section 8 in HB 87] exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress.

The same result will befall Section 8 of HB 87. That said, there is also another reason that Section 8 will fail. It blatantly violates the Full Faith and Credit Clause of the Constitution, when it does not recognize as valid the driver's licenses of those states that do not check for immigration status (Washington and New Mexico). U.S. Constitution, Article IV, Section 1. This clause requires that states within the United States have to respect the "public acts, records and judicial proceedings of every other state." Does Section 8 do that? The simple answer is no.

Section 9 -- Secure Communities and 287(g).

Section 9 really does nothing more than is already being done in Georgia. It is superfluous in every sense of that word. All Georgia counties will be enrolled in Secure Communities by September 30, 2012, and 287(g) is already active in at least six counties, but expansion of that program is limited by the federal government and available funding. This provision is clearly constitutional and will become law.

Section 10 -- Training for Peace Officers

This section is worse than meaningless. It provides for designation for 10 peace officers annually to be trained on federal immigration laws using federal dollars, but only if the dollars are available. What a joke. Yet, this provision is clearly constitutional and will become law.

Section 11 -- Incentive Program for Involvement in Secure Communities and 287(g)

As noted above, there is no need for an incentive to enroll in these programs. And the legislature allotted no funding for these incentives! Again, this is a joke. But, this provision is clearly constitutional and will become law.

Section 12 -- E-Verify for all Georgia Employers (Not Quite).

This section is hard to summarize without laughing. Rep. Ramsey repeatedly stated in his public comments that the most important part of HB 87 was the mandatory E-Verify component. In one public hearing he was vociferous in his defense of having every employer in Georgia of more than 5 employees enroll. But legislating is messy business, and that is not what we ended up with!

The law is relatively simple. If you are a private employer with more than 500 FULL TIME employees, you must register for E-Verify by January 1, 2012. If you have more than 100 FULL TIME employees, you must register for E-Verify by July 1, 2012, and if you have more than 10 FULL TIME employees, you must register for E-Verify by January 2, 2013.

Full time means someone works for you at least 35 hours per week. If you have 10,000 part time employees, you do NOT have to enroll in E-Verify under this law. Period.

The compliance part of this law is also relatively simple, but similarly contains a massive loophole. Every business in Georgia will be required to complete an affidavit before the county or municipal government, in regards to compliance with this law, in order to obtain or renew their business license or occupational tax certificate. At the time of signing this affidavit, the company's representative will determine the number of employees by counting the number of employees on January 1 of the year during which the affidavit is submitted. In case you did not notice, January 1 is a holiday and virtually no one works. There is nothing to prohibit an employer from laying off or reducing to part time ALL of its workers on December 31, and then restoring them to full time status on January 2. You might argue that that violates the spirit of the law, but how can you violate the spirit of a law that has no soul?

For those employers who nonetheless have the requisite number of employees as of January 1, they will be required to provide their E-Verify enrollment number as part of the affidavit process. And, if their E-Verify enrollment number has changed from the previous year, they have to explain why (e.g., we unenrolled because we had less than 10 employees for a while--entirely permissible).

Section 12, also puts an additional burden on county and municipal governments to provide to the State Department of Audits and Accounts each year a report demonstrating that the local government is in compliance with this requirement, and authorizes the Department to audit at least 20% of the local government reports each year, subject to funding (of which were was none in this bill, another joke).

Oh, one last joke on Georgia about this mandatory E-Verify program. Only FUTURE employees can be run through E-Verify. So, if someone who is undocumented is working now for an enrolled employer, their papers cannot be run through E-Verify and they will NOT lose their jobs. There is no purported job creation through this enforcement program Rep. Ramsey. Sorry to disappoint you.

This legality of a state to mandate enrollment in E-Verify is currently before the Supreme Court. Before the effective date of HB 87, we will know whether this provision is unconstitutional or not.

Section 13 -- Checking Immigration Status of Criminally Detained Persons.

This provision requires that the immigration status of all persons detained in local jails have their immigration status checked within 48 hours. Someone forgot to tell the State Legislature that this is what Secure Communities does. So, another superfluous statute. Nonetheless, this section is constitutional and will be in effect on July 1, 2011.

Section 14 -- More money for State Prisoners. Not.

This Section gives those counties who are enrolled in 287(g) an additional 10% (75 cents a day) for housing state inmates in their local jails, "subject to an appropriation of funds." Well guess what--there was no appropriation of funds!!!! Nonetheless, this section is constitutional and will be in effect on July 1, 2011.

Section 15 and 16 -- Who is an Agency Head?

These Sections add a definition for the term "Agency Head" so that such persons can be fined for violating the SAVE, E-Verify and Anti-Sanctuary policies already in place in Georgia. No one actually identified anyone who had actually violated such policies, but this provision did make D.A. King happy! This section is constitutional and will be in effect on July 1, 2011.

Section 17 -- You Want Public Benefits--Show Me Your Papers!

It is already the law in Georgia that people have to show that they are eligible for public benefits and show they are U.S. citizens or qualified foreign nationals. This Section adds the requirement that the documents presented comply with the new "Secure and Verifiable Identity Documents Act in Section 19 of HB 87. Since there are questions about the constitutionality of Section 19, this Section may also have problems going into effect (see the previous discussion on Full Faith and Credit).

Section 18 --The Agency Head is Going Down!

Section 18 provides for the penalties to the Agency Head for not complying with the verification of lawful presence in the United States requirements for receipt of government benefits provisions of Georgia law. The Attorney General is empowered to investigate such Agency Head, and collect attorney’s fees from the Agency Head if the Attorney General discovers noncompliance. This section is constitutional and will be in effect on July 1, 2011, even though it denigrates state employees.

Section 19 -- The Secure and Verifiable Identity Document Act

The state legislature here adds an entire new "Act" to the Georgia Code in an attempt to create a list of documents that must be used throughout the Georgia Code to verify identity for the variety of purposes required under the Code. The Attorney General is given until August 1, 2011 to create the list of acceptable documents under this act. The real intent of this act is to prohibit the use of the Matricula Consular, a document issued by the Mexican Consulate to provide a form of ID for Mexican nationals in the U.S. who do not have any other form of identification. The reality is that this prohibition only applies to acceptance of these ID documents by state agencies and does not apply to private businesses, such as banks or check cashing locations. Should the Attorney General choose to follow the lead of the state legislature in regards to not accepting driver's licenses from Washington and New Mexico, this section may be unconstitutional. However, as currently written it is completely legal and will go into effect on July 1, 2011.

Section 20 -- The Anti-Immigrant Enforcement Panel

This section was a surprise addition to HB 87 in its last substitution in the House, and has never had a public hearing. There is no legislative history, nor is there any explanation as to why this provision was even included here. Section 20 creates the "Immigration Enforcement Review Board." The primary purpose of this Board, which will include 7 members appointed by the Governor, Speaker of the House, and the Lieutenant Governor and is attached to the Department of Audits and Accounting, is to:

(1) Conduct a review or investigation of any complaint properly filed with the Board;

(2) take such remedial action deemed appropriate in response to complaints filed with the Board, including holding hearings and considering evidence;

(3) make and adopt rules and regulation consistent with the provisions of this Code section; and

(4) subpeona relevant documents and witnesses and to place witnesses under oath for the provision of testimony in matters before the board.

All of these duties are appropriately vague considering the actual authority of the Board. Here is what the Board has authority to do:

Investigate and review any complaint with respect to all action of a public agency or employee alleged to have violated or failed to properly enforce the provisions of Code Section 13-10-91 (State E-Verify usage), 36-80-23 (Sanctuary Policies), or 50-36-1 (Public Benefits) with which such public agency or employee was required to comply.

Only registered voters can bring complaints, which may in fact violate the due process clause of the state constitution, and possibly the Voting Rights Act.

What is remarkable with this Board is what it can do to these public employees. The Board does NOT have to act as a Board. One rogue member can carry out ALL of its duties AND impose sanctions!! These sanctions include revocation of qualified local government status, loss of state appropriated funds, or a monetary fine of up to $5,000. The standard of proof used for a "conviction" by this Board is a preponderance of the evidence. The Attorney General is the club used by this Board to enforce its decisions and sanctions in Court, should the employee not comply.

This is a RADICAL privatization of government power, and the constitutionality of this provision is suspect. After all we are talking about giving to a Board of private citizens the power to take away the "city" status of a municipality. Frankly, it is insane that this provision is in this anti-immigration bill. It has nothing to do with immigration, and everything to do with pleasing a particular constituent. Ultimately, the courts will decide the constitutionality of this Section.

Section 20.1 -- The H-2A Program and a Non-Study.

In an attempt to placate the Farm Lobby and farmer-supporting Senators, Senator Chip Rogers and Rep. Matt Ramsey added this Section to HB 87 on this last evening of the state legislative session. These provisions appear to have been added in violation of legislative rules. They were challenged as such during the final vote in the House, but the Speaker overruled the objection, upon the suggestion of Rep. Matt Ramsey (some of us were watching this happen live!). Section 20.1 directs the Department of Agriculture to conduct a study of the conditions, needs, issues and problems associated with the H-2A federal temporary agricultural worker program. It authorizes the Department of Agriculture to "provide a report evaluating the legal and economic feasibility of implementing a state guest worker program." I can save the Department of Agriculture a lot of money. Such a program is illegal! I wonder if I can bill for saving the state tens of thousands of dollars? Despite what Utah did with their state anti-immigration bill, there will not be 50 different states with 50 different immigration worker visas!

This Section is nuts, a waste of time and money, and a throw away to get certain Senators to vote for the bill. But, it is legal!

Section 21 -- Severability

This section was written in anticipation of certain parts of HB 87 being found unconstitutional. It simply means that those parts that are not unconstitutional remain in effect.

Section 22 -- Effective Dates

All parts of HB 87 become effective on July 1, 2011, except for Section 17, the section on the acceptance by a state agency of "secure and verifiable documents," which is effective on January 1, 2012. Of course, any criminal offenses and violations only are punishable if they occur after the effective date of the HB 87.

Section 23 -- Repeal of Conflicting Laws.

This last section simply means that nay other laws that conflict with the laws here are repealed.

Conclusion--But Not the End

There you have it. HB 87 in all its bare naked truth. A law that will destroy families, ruin businesses, and obliterate Georgia's economy. Don't believe me? Ask Arizona. HB 87 does nothing to stop illegal immigration. It does nothing to help people in Georgia who do not have jobs, as it creates no jobs. This bill does nothing to help Georgia business become more competitive. What is disappointing is that more businesses and chambers did not verbally, actively and passionately oppose this law for what is really is--a blatant attempt to revive prejudice against immigrants and to scare immigrants into leaving Georgia. Some proponents of this bill have argued that only undocumented immigrants need fear these effects of this bill. But we know the truth, and it was plainly spoken by State Senator Unterwood on the floor of the Georgia Senate--she feels more secure now that she sees fewer Mexicans in her hometown. Wow. That is really what this law is about. We should all be worried that Georgia has traveled back in time 50 years to 1961. But now, we are in the era of Juan Crow, not Jim Crowe. I fear for what will happen to my state because of HB 87, but that is also why we will continue to fight against this terrible excuse for a law. HB 87 undermines all that Georgia has worked for during the last half century. I am embarrassed for our state legislature and I am embarrassed for the governor who signs this. No excuse or rationale is sufficient for letting this become the law of Georgia.