SB 40—The Emperor STILL Has No Clothes, or Exhibit A in Why States Should Not Attempt to Legislate on Immigration Matters
by Charles Kuck
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 SUMMARY OF SECTIONS OF 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
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
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
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
SECTION 4—Carry Your Papers Please!! – Preempted by Federal Law
Section 4 takes the Arizona Law and brings it to
More importantly, Section 4 is one of the provisions of the
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
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
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
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
Charles Kuck is the Managing Partner of Kuck Immigration Partners LLC-The Immigration Law Firm, and oversees its nationwide immigration practice. His practice focuses on U.S. Immigration and Nationality Law and international migration matters. Mr. Kuck assists employers and employees with business and professional visas, labor certifications, immigrant visas, consular representation, and citizenship matters. Mr. Kuck also maintains an active Federal Court practice focusing on immigration issues.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.