This post summarizes a criminal case from the United States Supreme Court from March 3, 2020.
Kansas v. Garcia, ___ U.S. ___, ___ S. Ct. ___ (Mar. 3, 2020). A Kansas identity theft statute which criminalizes the “using” of any “personal identifying information” belonging to another person with the intent to “[d]efraud that person, or anyone else, in order to receive any benefit” was not preempted by the federal Immigration Reform and Control Act of 1986 (IRCA). The IRCA makes it unlawful to hire and alien knowing that he or she is unauthorized to work in the United States. To enforce this prohibition, the IRCA requires employers to use a federal work-authorization form (I-9) to comply with a federal employment verification system. The IRCA also requires that employees complete an I-9 no later than their first day of work and it is a federal crime to provide false information on an I-9 or use fraudulent documents to show authorization to work. In addition, the IRCA limits the use of information “contained in” I-9 forms “for law enforcement purposes” apart from the enforcement of certain federal statutes and the Immigration and Nationality Act, and also contains a provision that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” The preemption provision makes no mention of state or local laws that impose criminal or civil sanctions on employees or applicants for employment.
The alien defendants in this case were not authorized to work in the United States and secured employment by using identities of other persons, including those persons’ social security numbers, on I-9 forms. Each of them used these same false identities when they completed federal W-4 tax withholding forms and similar state K-4 tax withholding forms. Each defendant was convicted of a Kansas identity theft offense related to their use of another person’s social security number on the tax forms, the same numbers they had used on the I-9 forms. The Court reversed the decision of the divided Kansas Supreme Court which had determined that since the social security numbers had been used in the I-9 forms, the convictions were preempted by the IRCA based on the fact that the social security numbers were “contained in” the I-9 forms. The Court held that the Kansas identity theft laws were neither expressly nor impliedly preempted by federal law. With respect to express preemption, the court explained that (1) the express preemption contained in the IRCA applied only to State and local laws imposing sanctions on employers and recruiters; (2) the Kansas Supreme Court’s interpretion of the IRCA limitation on the use of information “contained in” an I-9 form to preempt a state prosecution based on the use of a false social security number in a tax form when that number also had been used in an I-9 form was “flatly contrary to standard English usage” of the term “contained in;” and (3) the defendants’ argument that a provision of the IRCA generally prohibiting the use of the federal employment verification system for “law enforcement purposes” rested on a misunderstanding of that system and its relationship to the circumstances of this case. The court went on to find that the Kansas laws, as applied, were not preempted by implication, finding neither field preemption nor conflict preemption.
Justice Thomas joined by Justice Gorsuch, each of whom also joined the majority opinion in full, filed a concurring opinion to separately reiterate the view that the court should abandon its “purposes and objective” preemption jurisprudence.
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, concurred in part and dissented in part, agreeing with the majority opinion that the IRCA did not expressly preempt the Kansas criminal law at issue but disagreeing with the majority opinion’s implied preemption analysis on the basis that “Congress has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization.”