Georgia’s illegal-immigration legislation "simply follows existing federal law."
Jack Murphy on Monday, June 27th, 2011 in a press release
Does Georgia's immigration bill "simply follow existing federal law"?
Just hours after a federal judge ordered a preliminary injunction of Georgia’s legislation to crack down on illegal immigration, a state senator who pushed to get the bill passed laid out what he considered the positives about the ruling.
Sen. Jack Murphy, a Republican from Cumming, noted the judge struck down several arguments by the plaintiffs who filed the lawsuit against the legislation.
But it was the final words of Murphy’s press release that made us reach for the law books.
"This law simply follows existing federal law," the release said.
We wondered about the senator’s claim since supporters of the Georgia legislation, House Bill 87, pushed for the bill largely because they felt the federal government has done a poor job enforcing its immigration laws and keeping illegal immigrants out of the country. Before Gov. Nathan Deal signed House Bill 87, its supporters also argued the legislation would survive legal challenges.
The bill requires all Georgia companies with more than 10 employees to verify the immigration status of all new employees, using the federal government’s E-Verify program. It says businesses that do contract work for the state, their subcontractors and their sub-subcontractors must participate in E-Verify. It gives law enforcement authority to check the immigration status of someone detained on probable cause of committing a crime.
Judge Thomas Thrash was concerned about Section 8 of the legislation, which he wrote "will convert many routine encounters with law enforcement into lengthy and intrusive immigration status investigations. Thus, the individual plaintiffs have shown a realistic threat of injury as a result of HB 87." Murphy and others expect the legislation to be appealed to the 11th Circuit U.S. Court of Appeals and possibly heard by 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 federal code on immigration about hiring and harboring illegal immigrants and the penalties for document fraud.
The general themes of the federal law and Georgia’s legislation, HB 87, are similar. They both say it’s bad to hire or harbor illegal immigrants, and impose fines and possible prison time for anyone who aids in either process. They both have fines and prison sentences for anyone who commits document fraud. Georgia’s legislation makes several references to following the guidelines of federal law.
Thrash, however, said there are big differences between the state legislation and federal law.
"Despite superficial similarities, however, Section 7 [of HB 87] is not identical to 1324 [in the federal code]," Thrash wrote in his ruling.
"For example," he wrote, "O.C.G.A. 16-11-202 prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia. Section 1324’s corresponding ‘inducement’ provision prohibits inducing an alien to ‘come to, enter, or reside in the 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 wildly exaggerate the scope of the federal crime of harboring under 1324 when they claim that the plaintiffs are violating federal immigration law by giving rides to their friends and neighbors who are illegal aliens."
Muzaffar Chishti, an official with the nonpartisan Migration Policy Institute, said "the [Georgia bill] prohibits knowingly inducing, enticing or assisting undocumented immigrants to enter Georgia, whereas it is not a federal crime to induce an undocumented immigrant to enter Georgia from another state."
He added that the language in the Georgia bill that creates fines and sentences for violators "allows the state to use prosecutorial discretion and judicial interpretation differently than the federal system." Chishti noted that Thrash had those same concerns, pointing to a portion of a federal court ruling concerning Arizona’s illegal-immigration legislation.
"[A]lthough Section 7 appears superficially similar to 1324, state prosecutorial discretion and judicial interpretation will undermine federal authority ‘to establish immigration enforcement priorities and strategies,’ " Thrash wrote, quoting the Arizona ruling.
Murphy told us he respectfully disagrees with some portions of Thrash’s ruling and that the judge’s interpretation of the federal law is incorrect. 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.
Still, we pressed on in search of more nonpartisan experts. One was Victor Cerda, former general counsel for the federal Immigration and Customs Enforcement agency. He argues Georgia’s E-Verify guidelines go beyond federal guidelines. For example, he noted that Georgia requires affidavits from contractors, subcontractors and sub-subcontractors of the immigration status of their workers. The federal government does not require an affidavit from contractors, an official said. Instead, contractors must sign a memorandum of understanding that they will use E-Verify within its guidelines.
"Georgia has a lot more definition," said Cerda, now a partner in the Washington, D.C., office of the law firm Jackson Lewis, which specializes in workplace law.
So let’s go back to Murphy’s argument that HB 87 "simply follows existing federal law." In the area of penalties, which are easier to measure, Georgia’s bill is less in some areas and potentially greater in other areas. The legislation addresses the same issues as federal law, but there are some differences where Georgia does more than simply follow federal law, such as Cerda’s point on affidavits and the language in Georgia’s bill concerning "inducing" illegal immigration here from another state. Since Murphy’s statement does not consider those distinctions, we rate his claim as Half True.