On Tuesday, the Supreme Court gave greater latitude to states to prosecute illegal immigrants for identity theft. The case arose after Kansas prosecutors convicted three restaurant workers for using other people’s Social Security numbers.
The Wall Street Journal noted, “The central question in the case, Kansas v. Garcia, was whether such state prosecutions were barred by a provision of federal immigration law that says any information submitted with federal work-authorization forms can’t be used for state law-enforcement purposes.”
The syllabus for the Court explained:
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to hire an alien knowing that he or she is unauthorized to work in the United States. IRCA requires employers to comply with a federal employment verification system. Using a federal work-authorization form (I–9), they “must attest” that they have “verified” that any new employee, regardless of citizenship or nationality, “is not an unauthorized alien” by examining approved documents, e.g., a United States passport or an alien registration card. IRCA concomitantly requires all employees to complete an I–9 by their first day of employment and to attest that they are authorized to work.
Every employee must also provide certain personal information, including name, ad- dress, birth date, Social Security number, e-mail address, and tele- phone number. It is a federal crime for an employee to provide false information on an I–9 or to use fraudulent documents to show work authorization.
It continued:
Kansas makes it a crime to commit ‘identity theft’ or engage in fraud to obtain a benefit. Respondents, three unauthorized aliens, were tried for fraudulently using another person’s Social Security number on the W–4’s and K–4’s that they submitted upon obtaining employment. They had used the same Social Security numbers on their I–9 forms. Respondents were convicted, and the Kansas Court of Appeals affirmed.
A divided Kansas Supreme Court reversed, concluding that §1324a(b)(5) expressly prohibits a State from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9. The court deemed irrelevant the fact that this information was also included in the W–4 and K–4. One justice concurred based on implied preemption.
Justice Samuel Alito, writing for the Court’s majority, stated, “The Kansas statutes under which respondents were convicted are not expressly preempted. IRCA’s express preemption provision applies only to employers and those who recruit or refer prospective employees and is thus plainly inapplicable … The theory that no information placed on an I–9 could ever be used by any entity or person for any reason—other than the handful of federal statutes mentioned in §1324a(b)(5)—is contrary to standard English usage.”
Alito concluded, “There is certainly no suggestion that the Kansas prosecutions frustrated any federal interests. Federal authorities played a role in all three cases, and the Federal Government fully supports Kansas’s position in this Court. In the end, however, the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to ‘the Laws of the United States,’ not the criminal law enforcement priorities or preferences of federal officers.”
The Journal noted, “The Trump administration had sided with Kansas in the case, arguing that Congress never meant to carve out an immigration-related exception that would prevent states from enforcing their own identity-theft laws.”