July 2, 2012 18:06 Age: 2 yrs

Georgia’s Immigration Legislation in Light of Arizona v. United States

By Polly J. Price

The recent U.S. Supreme Court decision in Arizona v. United States affirmed broad and sweeping federal government power over immigration, with a strictly cabined role for states. Several other states, including Georgia, awaited the decision to determine the validity of their own legislation. Although the Georgia immigration legislation (known as H.B. 87) is different from Arizona’s in several key ways, similar constitutional problems exist.

The one limited victory for Arizona, the “show me your papers” provision, is also applicable to Georgia because H.B. 87 similarly requires law enforcement to check the immigration status of someone they have detained or arrested for another criminal violation. The detention investigation is new to Georgia, but anyone who is booked into a jail in Georgia already is fingerprinted for Immigration and Customs Enforcement, and may be detained an additional period of time for transfer to ICE.

The federal government only challenged the Arizona statute on federal pre-emption grounds, not on civil rights, due process or equal protection grounds. The “show me your papers” legislation in Arizona drew the majority’s skepticism that it could be applied in a racially neutral manner and that persons wouldn’t be detained excessively during the verification process. It is entirely foreseeable that Arizona’s and Georgia’s provision will be applied in a racially selective manner. Latinos will be the target. Georgia, like Arizona, can expect civil rights lawsuits as suggested in the Supreme Court’s decision, assuming the federal court injunction is lifted.

A second provision of H.B. 87 criminalizes the intentional transportation or harboring in a residence of anyone in the country illegally. Arizona’s legislation contained no similar provision, and one key distinction is that the Georgia legislation does not impose the criminal penalty on the illegal migrant.

Nonetheless, I predict the federal court injunction against this provision will remain in place. The Supreme Court’s broad language about federal immigration power and preemption gives substantial pause about whether Georgia’s harboring provision, in particular, would be unconstitutional. Unauthorized aliens are entitled to basic rights while within the state, including the right of children to attend public schools. Placing penalties on Georgia citizens (landlords, neighbors) effectively excludes unauthorized migrants from housing and transportation, in violation of their civil rights.

Yet another provision of H.B. 87 is problematic in light of the Arizona decision. Using a fake ID to obtain employment can bring up to 15 years in prison and a fine of up to $250,000 for the offense of “Aggravated Identity Fraud.” The Supreme Court struck down an Arizona provision making it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” 

The Georgia legislation is different because it does not penalize unauthorized aliens for seeking employment generally, but only for doing so with fraudulent identification. The Supreme Court noted that federal law already makes it a crime for an unauthorized alien to obtain employment through fraudulent documents. It also stated, “Congress has made clear . . . that any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct.” 

Thus, this part of the Georgia anti-immigrant legislation would seem to be subject to federal preemption. As the Court stated in the opinion, “Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.”

The new Immigration Enforcement Review Board, also created by H.B. 87, will be under a “watch and see” protocol, similar to the Supreme Court’s attitude toward the operation of the Arizona “show me your papers” law. If in practice the Board’s actions prove to violate civil rights, federal courts will remedy them.

Other parts of H.B. 87 will most likely survive. Georgia law now imposes employment verification requirements on local governments and small private employers not already covered by federal employment verification laws. While these new provisions have proven to be enormously costly and burdensome in Georgia, their constitutionality is not really in doubt.

Finally, the one provision of H.B. 87 certain to survive constitutional scrutiny is the call for a study of a possible guest worker program undertaken by the Department of Agriculture. The costly debacles of recent agricultural harvests in Georgia suggest time and energy should be focused here.

Price is a professor of law and associated faculty, department of history. She is an expert in torts, legislation and regulation, American legal history, immigration and citizenship.

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