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Published Wednesday, June 29, 2011 in Local

Immigration law ruling may be partial victory for both sides

By Sarah Fay Campbell

The Newnan Times-Herald

Monday's preliminary ruling on Georgia's tough new immigration enforcement law could be seen as a partial victory for both sides.

While federal Judge Thomas Thrash issued an injunction preventing three facets of the law from taking effect July 1, he left the rest of the wide-ranging law intact -- at least for the moment.

"There were certainly claims made by the plaintiffs that the judge blatantly threw out," said State Sen. Mitch, Seabaugh, R-Sharpsburg.

An injunction simply prevents certain parts of the law from taking effect until there is a final ruling on the constitutionality of those provisions as well as the rest of the law, which was created by the passage of and signing of House Bill 87.

Georgia Gov. Nathan Deal and Attorney General Sam Olens have both stated they plan to appeal Thrash's ruling.

Affected by the injunction were prohibitions on knowingly transporting illegal aliens and knowingly harboring illegal aliens, and the portion of the law that authorizes law enforcement officers to investigate the immigration status of suspects who can't present a "secure and verifiable identify document."

Seabaugh said that the fact that the judge is letting the rest of the law go into effect "shows that a lot of good work went into trying to craft a bill that would pass constitutional muster."

House Bill 87 is "a good example of going through the legislative process and getting input and trying to come up with a law that the courts would uphold," Seabaugh said.

Portions of the law that will still take effect Friday include enhanced penalties for those using fraudulent documents to obtain employment, and penalties for local governments that don't follow existing rules regarding workers on public projects. The law also sets up an "Immigration Enforcement Review Board" to investigate complaints against government officials not enforcing state laws regarding immigration issues.

All government entities have been required to verify that contractors and subcontractors on any publicly funded projects submit affidavits stating that they use the federal "E-Verify" system for new hires. E-Verify helps employers determine whether their potential new employees are eligible to work in the U.S. or not.

That requirement was created by the Georgia Security and Immigration Compliance Act of 2006. Implementation was phased in over a few years, with smaller companies having longer to come into compliance.

However, there were no penalties for government agencies that did not comply with the law. The new law includes penalties of up to $10,000 and removal from office. The new law also specifies that the requirement also applies to "sub-sub-contractors."

Just because a company uses E-Verify doesn't mean that it doesn't employee illegal immigrants. The requirements only apply to new hires, not illegals who may have worked for the company for several years.

The new law also extends, for the first time, the E-Verify requirement to private employers who are not doing public projects. It will apply to companies with 500 or more employees starting Jan. 1. Companies with 100 or more employees will have to start using E-Verity on July 1, 2012, and businesses with more than 10 employees must use E-Verify starting July 1, 2013. There is no E-Verify requirement for businesses with 10 or fewer employees.

The lawsuit was filed by several organizations, including the American Civil Liberties Union, the Southern Poverty Law Center, The Georgia Latino Alliance for Human Rights, the Service Employees International union, the Task Force for the Homeless, DeamActivist.org, the Coalition for the Peoples' Agenda, the Asian American Legal Advocacy Center, and Paul Bridges, mayor of Uvalda, Ga.

Starting on Jan. 1, state and local government agencies must start requiring those who apply for a public benefit -- from a business license to housing assistance and food stamps -- to present a "secure and verifiable" ID document.

It's been illegal to provide certain government benefits such as food stamps to those here illegally since the 2006 immigration bill took effect, said Seabaugh. And many other "public benefits" were reserved for those here legally by House Bill 2, which took effect Jan. 1, 2010.

Those applying for such benefits had to sign a sworn affidavit stating that they were in the country legally. The new requirement is indented to eliminate the possibility of illegal immigrants simply lying on the affidavit. The affidavits did not require a Social Security number for those claiming to be U.S. citizens or legal permanent residents, but did require an "Alien ID" number for legal aliens.

Seabaugh said that he thought some of Thrash's arguments against the transporting and harboring violations, and the law enforcement provision, were on somewhat shaky legal ground.

"He is trying to use the Supremacy Clause of the Constitution, which is used when there is a conflict between state and federal law. But there is a much deeper argument," Seabaugh said.

He said that the Supremacy Clause only applies to areas where the states have granted the federal government authority.

The federal government has the right to regulate the immigration process, Seabaugh said. But that doesn't cover every facet of the immigration issue.

"I don't see the regulation of illegal aliens as a delegated power by the states to the federal government," he said. "That is why I believe the judge's use of the Supremacy Clause is on very thin ice."

As for the provision that would have authorized law enforcement officers to verify the immigration status of those who couldn't present proper IDs, such as a state ID card or driver's license, or federally issued ID such as a passport, "we are a nation that is founded on the basis of law," Seabaugh said.

"And citizens have to obey the law... so why would individuals that are here illegally not be subject to the law?" he asked.

"We have a lot of people who want the law of the land to be followed. It is obvious the federal government has failed to do their job in dealing with these matters, and therefore the states are having to start to take action," he said.

"So in checking the status of someone to determine if they are here legally or illegally, I don't necessarily believe to be all that bad -- if we are going to be a nation that respects the law and follows the law," Seabaugh said.

The Coweta County Sheriff's Office has recently begun participating in the "Secure Communities" program. Every person who is booked into the jail must have their fingerprint scanned by a special scanner that indicates whether the person is in the country illegally, or is wanted for crimes in other areas.