SB 40—The Emperor STILL Has No Clothes, or Exhibit A in Why States Should Not Attempt to Legislate on Immigration Matters

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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 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 Georgia, and shortens the federal time frame for using E-Verify on new employees, from the current 4 days to 3 days. This is likely just an example of the fact that the person drafting this bill did know or understand federal law; but it is still a deviation from what the federal government has set as the standards for employer compliance. The law then violates federal law by requiring the employer to maintain these records for 5 years, when the employer could, technically only have to maintain them for three years from date of termination if the person is terminated on day one of employment. This provision will clearly be struck down as preempted by Federal law. This area of law is completely preempted by the Federal employment verification process, and requiring more compliance in this area will simply not be found to be permissible.

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 Georgia does not have business licenses. They have tax registration certificates. So, technically, this Section would apply to no one!

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 Georgia’s economy from compliance. The only problems are that first, tthere is no such thing as an H-1 or H-2 applications; second, if Senator Murphy meant H-1B, H-2A an d H-2B applications, then every employer in Georgia who has hired an alien worker under these visas is going to be very happy to not have to comply with this provision, including, banks, engineering and accounting firms, computer consulting companies, landscapers, and farmers, and virtually every other industry in Georgia; and third, the United States Department of Labor does not adjudicate visa petitions (which this must be vaguely referencing), the Department of Homeland Security does. Frankly, it is truly embarrassing that a state legislator thought so little of the law that he wants passed and which he introduced into the public discussion, that he did not even consult with someone who actually understood federal immigration law. This provision is so vague that it would have to be stricken from the law the moment it is challenged. This really shows why a state should not be addressing federal immigration issues.

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 Georgia enrolled in E-Verify every six months. Why? This information is already publicly available to any person with a computer and access to the internet!

SECTION 4—Carry Your Papers Please!! – Preempted by Federal Law

Section 4 takes the Arizona Law and brings it to Georgia, mandating, in archaic language and citing federal law no longer in use, that all aliens carry with them at all times evidence of their immigration status. Section 4, citing to the Alien Registration Act of 1940, demands that every alien who is “required to register under federal law” carry with them proof of such registration. Unfortunately, aliens are not required to “register” under federal law unless the Attorney General so mandates. And except for a brief period in the previous decade, there has been no such registration requirement for more than 50 years. Oops! Perhaps whoever wrote this provision should have consulted with an immigration lawyer who actually understands federal law!

More importantly, Section 4 is one of the provisions of the Arizona law which was specifically found to be unconstitutional by a federal judge, for the very specific reason that this type of requirement of carrying documents verifying status is preempted by federal law. There is zero chance any court will find otherwise. So, why is this provision in SB 40? Good question.

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 United States in violation of federal law.” What? This provision, the first time it is used in a prosecution is going to be struck down for vagueness. Any person? So, a citizen who does not pay all their federal taxes because the improperly claim an exemption is an “illegal alien.” WOW, that is broad

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 Georgia. And, what about passengers in vehicles, or other occupants of a house, or other people at the business –can they be questioned about their status too? 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, 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 Arizona legislation does NOTHING to change the effect of what the statute is doing, and thus it will also be unconstitutional.

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 Georgia better, not tear it down.

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Charles Kuck

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