Just hours after a federal judge ordered an injunction on Georgia’s legislature to crack down on illegal immigration, a state senator pushing for the bill to pass laid out what he thought was positive about the ruling.
Senator Jack Murphy, a Cumming Republican, found that the judge struck down several arguments put forward by the plaintiffs who filed the lawsuit.
But it was the last words of Murphy’s press release that made us reach for the law books.
“This law simply follows existing federal law,” the press release said.
We were puzzled by the senator’s claim because supporters of Georgia’s House Bill 87 legislation pushed the bill primarily because they felt the federal government had done a poor job of enforcing its immigration laws and discouraging illegal immigrants from the to keep out of the country. Before Gov. Nathan Deal signed House Bill 87 into law, his supporters also argued that the legislation would survive legal challenges.
The draft law will require all Georgian companies with more than 10 employees to verify the immigration status of all new employees using the federal government’s E-Verify program. It states that companies performing contract work for the state, their subcontractors and their sub-contractors must participate in E-Verify. It gives law enforcement authorities the power to review the immigration status of a person who is detained on probable cause for committing a crime.
Judge Thomas Thrash was concerned about Section 8 of the legislation, which he wrote “will transform many routine law enforcement encounters into lengthy and intrusive investigations into immigration status. Therefore, the individual plaintiffs have demonstrated a realistic risk of injury from HB 87.” Murphy and others expect the legislation to be challenged in the 11th U.S. Circuit Court of Circuits and possibly in the U.S. Supreme Court.
Murphy sent us a statement to back up the claim in his press release. Much of it focused on a section of the federal immigration statute on the hiring and harboring of illegal immigrants and penalties for document fraud.
The general themes of the Federal Law and Legislation of Georgia, HB 87, are similar. Both say it is bad to hire or harbor illegal immigrants and impose fines and possibly jail time on anyone who assists in either process. Both have fines and jail terms for anyone found guilty of document fraud. Georgian legislation repeatedly refers to compliance with the guidelines of federal law.
However, Thrash said there are major differences between state legislation and federal law.
“Despite superficial similarities, Section 7 [of HB 87] is not identical to 1324 [in the federal code]’ Thrash wrote in his verdict.
“For example,” he wrote, “OCGA 16-11-202 prohibits knowingly inducing, luring, or assisting any illegal alien to enter Georgia United States.” Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state.”
Thrash also wrote that “the defendants grossly exaggerate the scope of the federal crime of harboring under 1324 when they allege that the plaintiffs violated federal immigration law by taking their friends and neighbors who are illegal aliens.”
Muzaffar Chishti, an official with the bipartisan Migration Policy Institute, said: “The [Georgia bill] prohibits knowingly inducing, enticing or assisting undocumented immigrants to enter Georgia, while inducing an undocumented immigrant to enter Georgia from another state is not a federal crime.
He added that the language in Georgia law, which provides fines and penalties for violators, “allows the state to exercise prosecutor’s discretion and judicial interpretation differently than the federal system.” Chishti noted that Thrash had the same concerns, pointing to part of a federal court ruling regarding Arizona’s illegal immigration legislation.
“[A]Although Section 7 appears superficially similar to the 1324 statute, prosecutors’ discretion and judicial interpretation will undermine the federal agency’s ability to “determine priorities and strategies for immigration enforcement,” Thrash wrote, citing the Arizona ruling.
Murphy told us that he respectfully disagrees with some parts of Thrash’s ruling and that the judge’s interpretation of federal law was wrong. Murphy questioned our pursuit of this fact check, saying in part that we could find 100 experts who would agree with thrash, while he could find 100 experts who would agree with him.
Nevertheless, we went in search of more impartial experts. One was Victor Cerda, former General Counsel at Federal Immigration and Customs Enforcement. He argues that Georgia’s E-Verify guidelines go beyond federal guidelines. For example, he pointed out that Georgia requires contractors, subcontractors and sub-contractors to provide affidavits on the immigration status of their employees. The federal government does not require affidavits from contractors, an official said. Instead, contractors must sign a letter of intent that they will use E-Verify within its policy.
“Georgia has a lot more definition,” said Cerda, now a partner in the Washington, DC office of the Jackson Lewis law firm, which specializes in employment law.
So let’s go back to Murphy’s argument that HB 87 “simply follows existing federal law.” In terms of penalties, which are easier to measure, Georgia’s bill is lower in some areas and potentially higher in others. The legislation addresses the same issues as federal law, but there are some differences where Georgia follows more than just federal law, such as Cerda’s point on affidavits and the language in Georgia’s draft law on “inducing” illegal immigration here from another state . Since Murphy’s statement does not take these distinctions into account, we judge his claim to be half true.
