A federal appeals court in Atlanta has struck down portions of Georgia’s controversial “Illegal Immigration Reform and Enforcement Act” (H.B. 87) prohibiting the transportation, concealing, or harboring of illegal aliens.  Relying heavily on the recent, highly publicized Supreme Court decision in Arizona v. United States, the Circuit Court found that Section 7 of the measure is preempted by federal law.  However, the U.S. Court of Appeals for the Eleventh Circuit also upheld another provision of the statute, Section 8, authorizing law enforcement officers to investigate a criminal suspect’s immigration status in certain circumstances.  See Georgia Latino Alliance for Human Rights, et al. v. Georgia, Case 11-13044 (11th Cir. Aug. 20, 2012).

In April, 2011 Georgia enacted House Bill 87.  Opponents of the law, quickly challenged its constitutionality.  On June 27, 2011 the U.S. District Court gave the challengers a partial victory. Leaving intact provisions requiring the use of E-Verify, imposing heavy fines for the use of fake identification to obtain employment, and requiring certain forms of identification to obtain public benefits, the District Court issued an injunction against the enforcement of two provisions of the law:  One that requires law enforcement officers to check the immigration status of suspects who cannot provide identification (Section 8) and the other that punishes suspects who intentionally transport or house someone in the country illegally (Section 7).  The District Court found that these provisions were in conflict with federal statutes.

On August 20, 2012 the Court of Appeals ruled on the blocked provisions. It found that federal immigration regulations issued under the Immigration and Nationality Act broadly covered the field of immigration, so that state laws in the area, such as Section 7, were not permissible, regardless of whether they complemented the federal law.  The court went as far as to note that this section presented an obstacle to the execution of federal law.  It therefore affirmed the District Court on this issue.

Section 8, nicknamed the “show-me-your-papers law,” however, was upheld as lawful.  This ruling was not surprising.  A similar provision in the Arizona law had been sustained by the Supreme Court.  The Circuit Court did reiterate the same concerns as the Supreme Court had expressed earlier in Arizona, that the law could lead to racial profiling, but noted that “reliance on race, color, or national origin that is constitutionally prohibited is expressly forbidden by the Georgia statute.”  Reasoning that “it is inappropriate for us to assume that the state will disregard its own law,” the Circuit Court nevertheless kept the door open for challenge if the law was applied unconstitutionally.

This decision accords with the Supreme Court’s decision that state laws encroaching on subjects regulated by federal law such as immigration may be struck down where Congress has intended its statutes to control the field.  “We must recognize the supremacy of the federal law,” the Court wrote.

The decision may well impact employers in Georgia having workforces with large numbers of foreign workers. If a foreign national is stopped lawfully and cannot show proper documentation, law enforcement officials may now detain that individual in order check his or her status against Federal immigration databases.  As of the date of this writing, neither the ACLU nor the State has indicated whether it will appeal the Circuit Court’s decision.