Moderated by Rick Badie
Who can claim victory from the U.S. Supreme Court’s split decision regarding Arizona’s immigration law? Supporters of state immigration laws or their opponents? Today, Sen. Barry Loudermilk writes the court recognized that the lack of federal enforcement has forced states to fill the gap and therefore upheld the “show-me-your-papers” provision; and Atlanta immigration attorney Charles Kuck says that provision would raise constitutional concerns and won’t pass muster in any state.
Victory? It’s a blow for HB 87
By Charles Kuck
The Supreme Court’s decision in Arizona v. United States is a resounding defeat for state anti-immigration movements, particularly in Georgia. The court’s decision puts an end to state efforts to enforce federal immigration law and create mini-state immigration systems.
As Justice Anthony Kennedy noted in his opinion: “[T]he States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Georgia legislators ignored warnings of this last year when considering HB 87 and chose to take the political rather than the legal path.
The pending challenges to the two stayed provisions of HB 87 will now move forward. U.S. District Court Judge Thomas Thrash found two key parts of HB 87, Sections 7 (the harboring, inducing, transporting provision) and Section 8 (the “show-me-your-papers” provision) were preempted, and barred those two provisions from taking effect. The Court of Appeals will now rule, in light of the Supreme Court’s decision, whether these two sections of HB 87 will remain invalidated.
The Supreme Court threw out three provisions of the Arizona law that, if implemented, would have conflicted with the federal plan. As a result, laws requiring the arrest by state officials of people they “reasonably believed” to be illegal, of those who did not carry proof of immigration status (as if that could be determined with a simple documents), and making it a crime to work in Arizona without work authorization (currently not against any federal law), cannot be implemented.
Section 7 of HB 87 is much like a federal statute and attempts to replicate and enhance federal penalties. It is pre-empted in that it directly affects the federal government’s efforts to enforce existing immigration laws. Section 7 will never be allowed to take effect.
State politicians who supported HB 87’s passage have made dubious claims of “victory” regarding the court’s decision. Did they actually read the opinion? While the Supreme Court allowed the “show-me-your-papers” provision to stand, it offered a caveat. The federal government only challenged the statute on federal pre-emption grounds, not on civil rights, due process or equal protection grounds. If the “show-me-your-papers” provision only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption. But Kennedy added: “Detaining individuals solely to verify their immigration status would raise constitutional concerns.” That’s an open door to further challenges.
In Georgia, anyone who is arrested (including those driving without a license) and brought to any jail already has their fingerprints run though the federal immigration database. If a “hit” occurs, Immigration and Customs Enforcement issues a detainer asking for a 48-hour hold to give ICE time to pick up the person. Section 8 is not necessary for this to happen. To remain constitutionally valid, the police would have to conduct its “immigration check” on the side of a busy road without extending the stop. In practicality, this is virtually impossible and unnecessary. Such stops also would have to be “color blind” as there is no legitimate way to determine a person’s immigration status simply by looking at him or her.
The federal government never joined the Georgia HB 87 litigation, and the current lawsuit focuses on the civil rights, due process and equal protection violations that already have occurred to Georgia immigrants and citizens as a result of HB 87. This does not bode well for the future enforcement of Section 8.
Perhaps we can move on and work together to demand that Congress fix our broken immigration system.
Charles Kuck, an Atlanta immigration attorney, serves on the executive board of the Georgia Association of Latino Elected Officials.
Ruling bodes well for Georgia
By Barry Loudermilk
The Supreme Court decision on the Arizona immigration law is significant to Georgia. It upheld the key provision in Arizona’s SB 1070, and more significantly recognized the tremendous impact illegal immigration is having on the states. It identified the true source of our illegal immigration problem.
In 2011, there were 694,193 foreign-born citizens who legally became naturalized citizens of the United States, according to the Department of Homeland Security. Of this number, 17,761 have found their permanent home in Georgia. Close to three-quarters of a million people promised to obey and uphold the laws and become invested citizens of our country. I am excited for what the future promises these newly minted citizens. However, it is estimated the number of illegal immigrants in the U.S. totals 10.8 million, which far overshadows the number of citizens who enter through legal measures.
Besides the impact illegal immigration has had on the employment market in the U.S., the Supreme Court also recognized more significant problems. Justice Anthony Kennedy stated there is an “epidemic of crime, safety risks, serious property damage and environmental problems associated with the influx of illegal migration.” In 2006, I traveled to southern Arizona to witness the problems associated with the influx of illegal immigration across the border. I was astonished at what I experienced during my few days along the border, which is consistent with Kennedy’s statement.
Justices on both sides of the decision also cited that the federal government’s refusal to enforce immigration law is the source of the state’s illegal immigration problem. Kennedy stated the decisions of this president and his two predecessors to significantly ignore federal immigration law have driven states to take these matters into their own hands.
After experiencing years of border violence and other criminal activity like those identified by Kennedy, Arizona decided to act under the authority of the 10th Amendment and define its own laws and regulations in accordance with existing federal law. However, when SB 1070 passed, opponents lined up to cite the law’s “unconstitutionality,” though the main provision was taken directly from federal law that is not being enforced.
In 2011, Georgia enacted a law similar to Arizona’s SB 1070. Like Arizona’s, Georgia’s law allows local law enforcement to fill a gap where federal enforcement has vacated its duties by validating citizenship of those suspected to be in the country illegally. While Georgia’s law focuses on taking all possible steps to ensure public employers are not hiring illegal immigrants (and granting safeguards to those who act in good faith), it also shows Arizona that we stand in solidarity with its actions. We will not attempt to harbor those who enable lawbreakers. We will not provide a safe haven for those who have entered the country illegally. With this decision, and last year’s decision to uphold E-Verify, Georgia will continue to address our illegal immigration problems.
The U.S. Supreme Court’s ruling on Arizona’s immigration law sets an important precedent. The strongest part of the law was allowed to stand, which means that any state law that takes a similar approach to mirror existing federal law, will stand. As always, Georgia welcomes those from other countries who seek to enter through legal measures. A qualified, taxpaying workforce will bolster our recovering economy and provide another marketable incentive for economic development opportunities. Our country should remain a beacon of hope for those willing to enter in a legal and orderly manner, while deterring those who ignore the rule of law and attempt to illegally obtain the privileges afforded by our great state and nation.
Sen. Barry Loudermilk, R-Cassville, represents District 52.