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SB 404–Why It Violates Federal Law And Should Not Be Passed

By February 25, 2014No Comments

Monday’s “legal,” but ethically challenged passage of SB 404 in the Senate Judiciary Non-Civil Committee hearing has created a real problem for Georgia Senators (and for House members who are considering today the possible addition of anti-immigration language from SB 404 to HB 621).  What is that problem?SB 404 violates federal law and will be struck down if it is passed.

As background, on Friday evening , February 21, 2013, SB 404 was introduced into the Georgia Senate on and published on its website.  As of Monday, February 24, 2014, at 8:00 pm., SB 404 was not yet publicly assigned to a committee in the Senate, and several people were told by the clerk of the Senate around 2:00 pm on Monday that SB 404 had not be been “pulled from the hopper,” e.g. read in the Senate and assigned to a committee.  Yet, around 3:00 pm, when a large group of folks opposed to SB 404 were in the Georgia House hearing room, where HB 621 was supposed to be heard on Monday (but was put off until today), SB 404 was assigned to the Judiciary Non-Civil Committee in the Georgia Senate and had a hearing where the only speaker for it was the Senator who sponsored the bill, and the only vote against it was by Senator Curt Thompson.  Apparently, the only notice required under Georgia Senate rules for a bill to be heard is for it to be on an agenda for the committee to be distributed at the committee hearing, effectively depriving the public of notice that a bill that will take away driving privileges from 25,000 people.  The Committee effectively passed SB 404 in the dark corners of the Gold Dome.

That saga leads to the real question, Why is SB 404 even being discussed?  More importantly, do these Senators, some of whom are actually attorney understand how SB 404 violates federal law?  In Section 202 of the REAL ID Act of 2005, subsection (c)(2)(viii) states that “deferred action” status is evidence of “lawful status” in the United States, for purposes of issuing a REAL ID compliant state ID or license.  While there is no reason given by the sponsors of SB 404 for proposing the bill (other than the dark forces and evil heart that lay behind an action of depriving people of the right to travel in the United States), it is clear that individuals with “deferred action” not only have “lawful presence” in the United States according to the Department of Homeland Security, but that he Congress of the United States has explicitly stated that recipients of “deferred action” have, in fact “lawful status” in the United States.

The importance of both of these items cannot be understated. The Constitution of the United States starts with the phrase “We The People.”  “We The People” has been interpreted to mean everyone in the United States, regardless of immigration status and that means, on at least a certain level, everyone in the United States, including those with “lawful presence” and “lawful status,” even if they are not permanent residents or citizens, enjoy the protections of the Constitution. One of those protections is equal protection under the law. The State of Georgia should be intimately familiar with the 14th Amendment.  The 14th Amendment bars the State from enacting laws that treat similarly situated “people” differently under the law.  SB 404 purports to do exactly that.  SB 404 wants to treat lawfully present and lawful status individuals differently from U.S. Citizens. That is a direct violation of federal law, and of the Constitution.

With no public reason given for this legislation, passage of SB 404, or any bill treating deferred action foreign national differently under state law, is doomed to failure.  We are ready today to allow the Courts to decide this case.  There is no doubt that the Courts will rule in favor of these students and Georgia will be left with another black eye on its crusade against immigrants.

We do not want to have to file another lawsuit because of the unwise actions of state legislators, but we will. We would rather that the Georgia Senate simply take a step back, put SB 404 in its appropriate dustbin, and move forward with legislation that unites Georgians, rather than one that tears them apart.  The Georgia legislature needs to stop taking its legal advice from non-lawyers who neither care about, nor respect the Constitution they have been sworn to uphold.

Charles Kuck

Managing Partner