Updated: 4:14 p.m. Saturday, May 14, 2011 | Posted: 4:11 p.m. Saturday, May 14, 2011
By GREG BLUESTEIN
The Associated Press
The tough measure cracking down on illegal immigration that has been signed into law is sure to be challenged in court before it can even be enforced.
Georgia’s law, signed into law Friday by Gov. Nathan Deal, has some provisions that echo those in a law enacted last year in Arizona and is also very similar to another enacted this year in Utah. Both have gotten tied up in the courts by lawsuits claiming they are unconstitutional, and opponents of Georgia’s law have said they plan to challenge it.
The Georgia law authorizes law enforcement officers to check the immigration status of certain suspects and to detain them if they are in the country illegally. It penalizes people who knowingly transport or harbor illegal immigrants in some situations and makes it a felony to present false documents or information when applying for a job.
Most parts of the new law are set to take effect July 1. A requirement for private employers with more than 10 employees to use a federal database to check the immigration status of new hires is set to be phased in over a few years.
As with any legal action, much of what plays out depends on what legal arguments are made, and which judge is picked to hear the case.
“This could go in many different directions. It’s hard to predict,” said Scott Titshaw, a professor at Mercer University’s School of Law who studies immigration law. “I won’t hazard a guess on what will happen, but I will hazard a guess the state will spend a lot of money defending the law.”
The law’s critics are mapping out their strategy. They’ll ask a judge to put the law on hold until the case is decided, and for a permanent ban to prevent the law from taking effect, said Charles Kuck, an Atlanta immigration lawyer who’s spearheading a lawsuit.
The challenge would have to prove that someone was harmed by the immigration law and that the harm is unconstitutional, which could be tough to do before the law takes effect, Kuck said. But if the lawsuit is dismissed, he said critics are ready to file a new challenge once someone is charged with violating the new statute.
Among the arguments likely to emerge in a challenge is that the new legislation violates the Constitution’s ban on cruel and unusual punishment. Kuck cites a provision in the legislation that imposes a 15-year prison sentence and a fine of up to $250,000 for those who present false documents or information while applying for a job.
Attorneys will also work to point out the similarities between Georgia’s legislation and Arizona’s law, hoping that a judge will follow suit here. But Kuck said the challenge will also highlight the parts of Georgia’s legislation that he says go beyond the statutes in Arizona.
A federal judge last year blocked parts of Arizona’s law after the federal government sued, and an appeals court upheld that decision last month. Arizona Gov. Jan Brewer said Monday the state plans to appeal directly to the U.S. Supreme Court.
A federal judge on Tuesday temporarily blocked a similar law enacted this year in Utah after civil liberties groups sued to keep it from taking effect. That judge cited similarities to the most controversial parts of Arizona’s law. A hearing is set for mid-July to determine if the law can go into effect.
The Georgia attorney general’s office wouldn’t comment on how it would defend the legislation, but Arizona and Utah attorneys have said the federal government hasn’t effectively enforced immigration law because of legislative gridlock over the issue in Washington. It’s a theory that has echoed in Georgia, where state Rep. Matt Ramsey, the bill’s sponsor, has said lawmakers were forced to take a bold stance simply because Congress hasn’t.
The outcome of the legal battle could also depend on how the challenge is raised, and who raises it.
In Arizona, the Justice Department intervened, arguing the law intrudes on its exclusive powers to regulate immigration. The government also warned it could disrupt diplomacy between the U.S. and Mexico.
A DOJ spokeswoman did not return a call and email Friday seeking comment on whether the agency would take action against the Georgia law.
The federal government declined to intervene in Utah, leaving civil rights activists to file their own complaint. The ACLU said in a lawsuit the measure was an unconstitutional burden to legal immigrants and too much like portions of Arizona’s immigration law that were tied up in court.
Third-party groups could also file lawsuits. Police officers could challenge a provision in the law that allows them to check the immigration status of suspects who can’t produce an accepted form of identification, but Titshaw said they could have a hard time proving they have standing to bring the lawsuit.