Testimony Before the Georgia House Judiciary Committee on HB 87
by Charles Kuck
I thank you for the opportunity to speak to you today about HB 87. My background in immigration law goes back more than 20 years. I practice law here in Georgia, I teach immigration law at the University of Georgian as an adjunct professor of law. I am the past national president of the American Immigration Lawyers Association. I testify today as an expert in immigration law. There are good public policy reasons to not pass this bill. Others I am sure will discuss those. I want to focus on the legal reasons why this bill is not ready for passage.
The title of this bill is the Illegal Immigration Reform and Enforcement Act of 2011. It does not, however, reform illegal immigration or its enforcement. This bill will cause the state and its local governments to face increased litigation, fail to carry out the purported mission of this legislation, and will result in increased costs and taxes to local governments and businesses in Georgia. It will do all this because it does not comport with federal law, includes clearly federally preempted sections, and does not do what the purported purpose of this bill says it does. And despite what one Representative stated at a prior hearing, the Supreme Court has identified at least four provisions in Article 1 of the Constitution which give Congress plenary power over all aspects of immigration law. There is no 10th Amendment argument reserving any power to the states to regulate immigration. To state otherwise is disingenuous and without legal basis.
Representative Ramsey stated that the reasons for drafting this bill included the purported use of public benefits by undocumented immigrants. He produced no evidence that this is actually happening. Has there been a study done in the last 12 months on the use of “public benefits” used by undocumented immigrants in Georgia? No. Simply stated, welfare, food stamps and unemployment assistance, the largest “welfare” benefits, are simply unavailable to undocumented immigrants by existing law. This bill does not effectively address items that are not already required under state law. For example Georgia already includes mandatory SAVE review of all benefits applicants, thus ensuring, as best as that database can, that only legally authorized immigrants and citizens access public benefits. So, why the private lawsuits?
Representative Ramsey also sited a number of $2.5 billion as the cost of illegal immigration in Georgia, without also noting that illegal immigrants contribute more than $9.4 Billion to Georgia's economy, and pay millions of dollars in taxes. I am not saying that illegal immigration is not a problem, nor am I saying that I want illegal immigration. I do not. No one, including illegal immigrants, benefit from their situation. What I am saying is that you need to see the WHOLE picture before you vote to pass this legislation out of committee.Where there are expenses, there is also income.
Representative Ramsey also stated that Georgia had to do “something” because the federal government has not acted on illegal immigration. This is simply not true. This last year, the Obama Adminstration deported a record number of people, almost 400,000. More miles of the “fence” were built then ever before. More than $4 BILLION dollars were spent on border security and enforcement. More than 36,000 immigrants are held in detention centers on any given day of the year, on their way to being removed; and ICE just announced a new employer enforcement center, which is aggressively auditing employers who violate the employer sanctions laws, all around the United States and here in Georgia. It is a myth that the Federal Government is doing nothing. In fact, the federal government is doing more than it has ever done before, but do not expect a miracle. Estimates are that it would cost more than $135 billion dollars to remove everyone, and it would have a devastating impact on the economy by doing so. This should NOT be a reason to pass ineffective state legislation on an issue that is, frankly, beyond the scope of expertise of the state. My first concern with this legislation goes to cost -- where is the Fiscal Note on this bill? Even Representative Ramsey said this bill is going to have a potentially large negative fiscal effect on the state and local governments. Why would you pass a bill with certain negative economic impact, and potential tax increases, without knowing exactly what you were doing? We know that similar state legislation in Utah was just found to carry an $11 million dollar price tag. Utah is a 1/3 the size of Georgia in population with only 29 counties and a handful of cities compared to Georgia. Can you imagine what this legislation will cost here?
I also have concerns about virtually every section of this bill from a legal perspective. Sections 3, 4, 5 and 6 of this proposed legislation contain the threat of unlimited litigation with no deterrence to filing lawsuits.Simply requiring potential plaintiffs to notify the local government before suing does not stop the litigation.Who is going to pay to defend from frivolous lawsuits? Frankly, the only thing that might serve as deterrence to frivolous lawsuits would be a loser pays system. More importantly, there is no proof of non-compliance required this law prior to lawsuits being filed. 158 of the 159 Georgia counties are enrolled in E-Verify, and the other is in the process of allocating resources to make this happen. I suggest first seeing if these provisions are actually necessary before passing them. Where are the studies showing a NEED for this legislation?
Section 7 of this bill deals with seizures of vehicles for transporting undocumented immigrants, the harboring of undocumented immigrants, and the encouraging of an undocumented immigrant to enter Georgia. This particular provision the Federal Judge in the Arizona legislation found was NOT preempted by Federal law, BUT the judge did not rule if this legislation was constitutional, on say, vagueness grounds. This provision is written in such a way that it does not exclude Churches (as does federal law), when say, the pastor drives someone who is undocumented to Church, and is speeding on his way there. The provision that this law is only effective in the context of another legal violation does not reduce it vagueness. What other violation?Tax evasion, trespassing, or a zoning violation? When does it have to occur?
Human smuggling is already illegal in Georgia and the United States, this bill does not change or enhance that.Further, in the provisions in this law which are somewhat different from the AZ law, e.g. effecting the bringing of “someone” to the U.S., federal law excludes prosecutions for immediate family members, this legislation does not, thus making it likely preempted by Federal law.
Section 8 of this bill, relating to traffic stops, was found preempted by federal law, and is still, even with the purported changes not making it mandatory (any law that says “shall” is mandatory). Further, I have concerns about how this bill affects victims of Domestic Violence. I have had a least two clients in the last year who were arrested after they complained about domestic violence, and then were detained, as victims, while an immigration check was run. Please understand, that means that a victim was detained. Something expressly forbidden, but which happens because of legislation like this.
Section 9 urges 287(g) enrollment by counties, which is already mandatory under state law. Recent reports show that 287(g) has serious programmatic issues. Enrollment is not really a local government option, as ultimate enrollment is up to the Federal Government, which is also resource constrained. This section is simply unnecessary.
Sections 11 and 12 deal with Secure Communities. These sections are also unnecessary as the federal government has already committed to installing this program in all Georgia counties by September 30, 2011.These provisions are essentially fluff and are unnecessary.
Section 13 gives counties an extra $2 a day if they enroll in 287(g)! Why? Even if this were a substantial sum, where is it coming from? This provision is essentially meaningless.
Section 14 mandates E-Verify for all, well, not really. What is written here will not ensure E-Verify enrollment by all Georgia business. It specifically exempts tens of thousands of small business, which are exactly the type of businesses who don't currently use E-Verify. Has there even been a study to show how this will affect businesses, or how effective this requirement will be? How many counties require a business license or a tax certificate? How many enforce that rule? Arizona made this the law 5 years ago, and to date, only 35% of AZ businesses are enrolled. E-Verify has other problems as well. To date, 238,000 employers have enrolled in E-Verify nationally. I encourage my client employers to enroll in E-Verify. And, I am enrolled in E-Verify, by choice. But, that is out of more than 11,000,000 employers in America.
Much is made of the fact that it is very easy to enroll in E-Verify. To one committee member it only took 20 minutes. My question is this. Did he read the 13 page Memorandum of Understanding that waives the company's right under the 4th amendment? Further, this Arizona mandate is on appeal to the Supreme Court.It is unclear which way the Supreme Court will rule. Once concern with this mandatory enrollment is whether the STATE can require a waiver of the 4th Amendment rights for no consideration.
Congress will eventually make this mandatory, but for now has chosen not to. It remains unclear whether a state can require a business to waive it federal constitutional rights. The provision has other flaws; it only gives business three days to comply, when federal regulations give a business 4 days to do so. Further, only FUTURE employees can be screened; current employees cannot, so it does nothing to resolve the current issue of unlawful employment.
Finally, Section 15, which bans the use of the Matricular Consular by State and Government agencies.Why don't you just say that? Why all the other unnecessary and confusing language, which only puts an onus on the Attorney General to publish an ever changing list of acceptable documents. Also please note that by the definitions and language of this proposal, the list of acceptable documents must, of necessity, include foreign passports?
As you can see, there is MUCH to change, edit, or remove from this legislation, which is clearly not ready for primetime. Is the Georgia State Legislature really ready to put this bill into law, and put at risk Georgia Governments, Georgia Businesses, and Georgia's People? I urge you to send this bill to defeat, until there is actually evidence and support for its provisions, and meaningful reasons to enact it, rather than allegations, myths, and innuendo. Our laws should DO something effective; they should not be passed just to say you are doing “Something” about a broken federal immigration system.
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.
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