4/11 – Charles Kuck – Musings on Immigration: Why HB 87 and SB 40 are Unconstitutional

Musings on Immigration: Why HB 87 and SB 40 are Unconstitutional.

A more in depth analysis will be coming this evening, but the 9th Circuit Court of Appeals just made absolutely clear why Georgia’s HB 87 and SB 40 are going to be found unconstitutional if passed by the State Legislature.

In United States of America v. Arizona, Judge Paez writes specifically as to Section 2(B), which is the “show me your papers” part of SB 1070 in the Arizona law and which is contained in substance in both HB 87 and SB 40, that

In light of this guidance, Section 2(B)’s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)’s ‘unyielding” mandatory directives to Arizona law enforcement officers “underminethe President’s intended statutory authority” to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, of—according to ICE—”advanc[ing] the goals of protecting national security, protecting public safety, and securing the border.” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.

This preemption is NOT about the shall/must/permissible aspect of the Arizona or Georgia laws on “show me your papers.” It is about usurping a federal area of law. Period.
Further, the Court also found that the state law also affects the foreign policy of the United States, something the states are simply not permitted to infringe upon:

The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental.

The bottom line is this–and is exactly what I have been saying since January–the authors of HB 87 and SB 40 simply did not consider the constitutionality of their proposals, or did not care whether they were constitutional. In either case, if either of these laws pass the General Assembly this session, litigation will be filed, and HB 87 or SB 40 will be stopped in the Federal Courts.
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