Many new bills signed into law have made Florida politics a widely discussed topic. One of these bills, SB 1718, was signed into law by Governor Ron DeSantis on May 9, 2023. The law took effect on July 1, 2023. The bill was labeled as the “strongest anti-illegal immigration legislation in the country” and was Governor Ron DeSantis’ attempt to oppose President Biden’s federal border policies.[i] Among the new stringent restrictions was a new third-degree felony charge for any individual who “knowingly and willfully transports into [Florida] an individual whom the person knows or reasonably should know has entered the United States in violation of the law and has not been inspected by the Federal Government since his or her unlawful entry from another country[.]”[ii] Additionally, the crime will be enhanced to human smuggling if it involves the transportation of a minor or more than five people.[iii]
In response to the newly signed law, multiple legal organizations have filed suit against Governor Ron DeSantis in his official capacity and have included a motion for a preliminary injunction to combat the enforcement of SB 1718 Section 10, specifically the transport restriction. The motion argues that Federal Law preempts Section 10, and that the transport restriction violates the Due Process Clause of the U.S. Constitution because it is unconstitutionally vague.[iv]
The preemption argument primarily centers around two Eleventh Circuit cases, Georgia Latino All. for Hum. Rts. v. Governor of Georgia (2012) and United States v. Alabama (2012). In both cases, the Eleventh Circuit invalidated state immigrant transport laws because they were preempted by federal law.[v]
First, the field is preempted. Congress has established the transport laws under 8 U.S.C. § 1324, which lays out the federal regulations and restrictions on the transportation of illegal immigrants over state lines. Therefore, SB 1718 is preempted as it aims to create restrictions and regulations in a field of law already occupied by Congress. Furthermore, SB 1718 is also preempted due to conflict. The Eleventh Circuit in Alabama ruled that the state law was unconstitutional because its transportation restrictions were too dissimilar to the federal law already in place, creating a conflict preemption. Here, SB 1718 contains similar language to the invalidated law, specifically, the omission of the element requiring the transportation to be “in furtherance” of illegal presence, which is an integral aspect of the federal law. Lastly, the suit argues that SB 1718 is also preempted because it attempts to remove illegal immigrants from living in Florida. The Eleventh Circuit held in Alabama that a state cannot pass laws to specifically prevent an illegal immigrant from living in the state. In regards to SB 1718, Florida Representative Randy Fine stated, “[t]he purpose of the law is to get illegal immigrants to stop coming to Florida and to get those who are here to leave.”[vi] Accordingly, as SB 1718 aims to prevent the transportation of any illegal immigrant into the state, it violates the rule of law set out by the Eleventh Circuit.[vii]
On another note, the legal organizations claim that SB 1718 is unconstitutionally vague. The motion claims that the law did not adequately explain what it means to be “inspected since entry.” Moreover, the confusion on what is classified as an “inspection” under SB 1718 creates uncertainty on whether an activity may or may not be illegal. Therefore, without providing a proper definition of the main element of the crime, SB 1718 does not provide the level of notice required to satisfy the Due Process Clause.[viii]
As stated before, SB 1718 is a response to President Biden’s border policies and creates a strong stance against illegal immigrants on behalf of the State of Florida. Supporters of SB 1718, such as Representative Kiyan Michael, claim the law sends a message that Florida will protect its resources, communities, and families.[ix] Mainly, supporters believe SB 1718 is necessary for the economy and security purposes. However, the Florida economy will be greatly impacted by the transport laws and newly established e-verify requirements. Moreover, Governor DeSantis’s presidential campaign for the 2024 presidential election remains relevant as his hard stance against illegal immigration is a main campaign point. Accordingly, SB 1718 will be pushed as an example of what Governor DeSantis plans to do for the country as a whole if elected President.[x]
In conclusion, SB 1718’s attack on illegal immigration is highly controversial. Some support it as a necessary step against the alleged border crisis, whereas others see it as a discriminatory attack against all immigrants, legal or illegal. Legally, the controversy revolves around the constitutionality of the law. Legal organizations argue that the law should be invalidated because it is preempted by federal law in three different ways and violates the Due Process Clause by being unconstitutionally vague. The law will remain in place and active until the Court decides on the issues brought in the suit.
[i] See Governor Ron DeSantis Signs Strongest Anti-Illegal Immigration Legislation in the Country to Combat Biden’s Border Crisis, Fla. Gov’t, https://www.flgov.com/2023/05/10/governor-ron-desantis-signs-strongest-anti-illegal-immigration-legislation-in-the-country-to-combat-bidens-border-crisis/ (last visited Sept. 18, 2023).
[ii] Fla. SB 1718 (2023).
[iii] See Fla. SB 1718 (2023).
[iv] See Groups File Motion in Lawsuit to Block Florida’s Anti-Immigrant Law SB 1718, Am. Immigr. Council, https://www.americanimmigrationcouncil.org/news/groups-file-motion-lawsuit-block-florida%E2%80%99s-anti-immigrant-law-sb-1718 (last updated Aug. 7, 2023).
[v] See News Service of Florida, Advocates Call for Injunction Against Florida’s New Immigration Law, Orlando Weekly, (Aug. 9, 2023), https://www.orlandoweekly.com/news/advocates-call-for-injunction-against-floridas-new-immigration-law-34814902.
[vi] See Miriam Jordan, New Florida Immigration Rules Start to Strain Some Businesses, the New York Times, (Aug. 4, 2023), https://www.nytimes.com/2023/08/04/us/florida-immigration-law-businesses.html?smid=nytcore-ios-share&referringSource=articleShare.
[vii] See News Service of Florida, Advocates Call for Injunction Against Florida’s New Immigration Law, Orlando Weekly, (Aug. 9, 2023), https://www.orlandoweekly.com/news/advocates-call-for-injunction-against-floridas-new-immigration-law-34814902.
[viii] See Dara Kam, Florida’s New Immigration Law is Challenged in Federal Lawsuit, WUSF PUB. MEDIA, (July 18, 2023), https://wusfnews.wusf.usf.edu/courts-law/2023-07-18/floridas-new-immigration-law-challenged-federal-lawsuit.
[ix] See Governor Ron DeSantis Signs Strongest Anti-Illegal Immigration Legislation in the Country to Combat Biden’s Border Crisis, Fla. Gov’t, https://www.flgov.com/2023/05/10/governor-ron-desantis-signs-strongest-anti-illegal-immigration-legislation-in-the-country-to-combat-bidens-border-crisis/ (last visited Sept. 18, 2023).
[x] See Governor Ron DeSantis Signs Strongest Anti-Illegal Immigration Legislation in the Country to Combat Biden’s Border Crisis, Fla. Gov’t, https://www.flgov.com/2023/05/10/governor-ron-desantis-signs-strongest-anti-illegal-immigration-legislation-in-the-country-to-combat-bidens-border-crisis/ (last visited Sept. 18, 2023).
