Why HB 87 and SB 40 are Unconstitutional

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A more in depth analysis will be coming this evening, but the 9th Circuit Court of Appeals just made absolutely clear why Georgia’s HB 87 and SB 40 are going to be found unconstitutional if passed by the State Legislature.

In United States of America v. Arizona, Judge Paez writes specifically as to Section 2(B), which is the “show me your papers” part of SB 1070 in the Arizona law and which is contained in substance in both HB 87 and SB 40, that

In light of this guidance, Section 2(B)’s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)’s ‘unyielding” mandatory directives to Arizona law enforcement officers “underminethe President’s intended statutory authority” to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, of—according to ICE—”advanc[ing] the goals of protecting national security, protecting public safety, and securing the border.” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.

This preemption is NOT about the shall/must/permissible aspect of the Arizona or Georgia laws on “show me your papers.” It is about usurping a federal area of law. Period.
Further, the Court also found that the state law also affects the foreign policy of the United States, something the states are simply not permitted to infringe upon:

The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental.

The bottom line is this–and is exactly what I have been saying since January–the authors of HB 87 and SB 40 simply did not consider the constitutionality of their proposals, or did not care whether they were constitutional. In either case, if either of these laws pass the General Assembly this session, litigation will be filed, and HB 87 or SB 40 will be stopped in the Federal Courts.

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Charles Kuck

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Comments 0

  1. I, for one, am tired of talking and feeling helpless about major issues in this Country. This trend of state’s governments taking action because of a lack of Federal government consensus on controversial matters, is disturbing, and terrifying. Corporations ruling the governments, and the officials we so blindly elect, is NOT what this country was founded upon.
    I am a college student in Georgia, and have been watching closely HB 87. It is appalling to see something so unconstitutional and against everything this country stands for and was founded upon, be passed.I feel as if something needs to be done…but what? I’m going to mention civil disobedience as a means to gain attention. In our history, this is what made a push for change during slavery with the Underground Railroad, women’s suffrage, the civil rights movement…I could go on and on. As Gandhi stated:

    “Civil disobedience becomes a sacred duty, when the state has become lawless or corrupt…Every Citizen is responsible for every act of his government”.

    From the New World Encyclopedia:

    “Civil disobedience encompasses the active refusal to obey certain laws, demands, and commands of a government or of an occupying power without resorting to physical violence. Based on the position that laws can be unjust, and that there are human rights that supersede such laws, civil disobedience developed in an effort to achieve social change when all channels of negotiation failed.”

    This , I believe, reinforces our call to ”duty” as people who live and care about this country. What can we do? How do we organize enough people to show that we will not stand for such legislation, when their are NO facts backing this ridiculous legislation up. From an economic standpoint, our basis for many of our low paying, low safety standard jobs, are taken by the same people that governments are trying to kick out. However,the reason they are doing these jobs is that NO ONE HERE WILL DO THEM because of the low wages. Even with our high unemployment rate, jobs are NOT being "taken" from US citizens.These job positions will be mostly empty if immigration ceases. Our economy will shut down even more than it already has; we no longer will have cheap produce in the stores because the cheap labor is gone. I disagree with terrible wages and believe that we should be looking at this in a humanistic manner, but people will often not listen unless it involves them directly.
    Again, I know that I am not the only person who feels as if this country is spiraling downwards rapidly and is not advancing. With these ridiculous, unfounded, ignorant pushes for legislation, we are dividing ourselves even further. It is not a "Hispanic", "Democrat", "Republican",or a "Christian" problem…It is a HUMAN problem that we MUST take action to stop.

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