Opinion analysis: Divided court permits state identity-theft prosecution of noncitizens in the employment process

Yesterday, in Kansas v. Garcia, a five-justice majority of the Supreme Court upheld Kansas’ prosecution of noncitizens who used stolen social security numbers to gain employment. Justice Samuel Alito’s majority opinion held that Kansas’ application of its state identity-theft and fraud statutes to the noncitizen respondents was neither expressly nor impliedly preempted by federal immigration laws related to verifying eligibility to work (for a discussion of express versus implied preemption – and the latter’s subsets of conflict, obstacle and field preemption – see the argument preview). Beyond validating the convictions of the three respondents, this outcome presages the potential for increased use of state criminal laws to regulate unauthorized employment, changes to the current state of immigration federalism jurisprudence and a shift in the future of preemption doctrine more generally.

As detailed in the preview and argument analysis, the case centers around the relationship between state identity-theft laws and the federal employment-verification process. The federal Immigration Reform and Control Act sets out the familiar I-9 process applicable to everyone, citizen or noncitizen, who attempts to secure employment in the United States. IRCA requires employees to present evidence of their eligibility to work, which is recorded on the I-9 form. Other provisions of IRCA and federal immigration law limit the use of information contained in the I-9 form to enumerated federal law enforcement purposes, including the prosecution of specified federal crimes like fraud.

Important to the majority opinion, Kansas’ prosecution of the three noncitizens was not based on the I-9 form itself, but rather on identity information entered on federal and state tax-withholding forms. The identity information on the tax forms, however, was the same as that entered on the I-9, and both the tax forms and the I-9 were submitted at the same time as part of the employees’ attempts to establish employment eligibility. Ultimately, the distinction between the state’s reliance on tax forms, as opposed to the I-9 form, proved critical. The majority viewed the entering of identity information on the tax forms as “fundamentally different” from entering that same information on the I-9, and thus not covered by IRCA’s provisions. In contrast, the four-justice dissent understood the noncitizens’ use of the I-9 and the tax forms as part of the connected and unified process of demonstrating federal work authorization, thereby bringing the state’s application of its criminal laws into tension with the federal regulatory scheme.

Notably, Alito began his majority opinion by citing Chamber of Commerce v. Whiting (2011) and De Canas v. Bica (1976), rather than Arizona v. United States (2012), the Supreme Court’s most recent and most comprehensive immigration federalism case. Whereas the Arizona court struck down that state’s attempt to criminalize unauthorized employment, both Whiting and De Canas upheld state interventions into the regulation of unauthorized employment against preemption challenges. This opening gambit hinted at Garcia’s potential retreat from the court’s position on state regulation of unauthorized immigrants announced only eight years ago.

Turning to the merits, the opinion first forcefully rejected the proposition that IRCA and related federal immigration provisions expressly preempted the state prosecutions. All nine justices agreed on this point, as even the partial dissent by Justice Stephen Breyer (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) concurred with Alito’s express-preemption ruling. This particular result was unsurprising. Indeed, although the Kansas Supreme Court relied on express preemption as the basis for invalidating the state prosecutions, at oral argument in the Supreme Court, the respondents conceded that the case was better understood as an implied-preemption case.

Next, turning to the more contentious question of implied preemption, the majority rejected both the claim that federal employment-verification provisions and their limitations occupied the field and the claim that application of these state criminal laws conflicted with, or otherwise undermined, federal enforcement prerogatives. Regarding field preemption, the key to the majority’s analysis was its emphasis on the potential uses of tax-withholding forms outside of immigration-enforcement functions. Information on tax forms, Alito’s opinion noted, could be used by the state to enforce wage obligations and benefits and to ensure the accuracy of the state’s tax information. Accordingly, the majority concluded that IRCA’s employment-verification provisions and attendant limitations on the use of I-9 information “did not create a comprehensive and unified system regarding information a State may require employees to provide.”

On this point, Breyer’s dissent critiqued the majority’s formalistic distinction between the use of I-9 and tax forms in the employment process. IRCA and its related provisions, according to the dissent, reserve policing of any fraud committed in order to demonstrate eligibility to work to the federal government alone. Under the dissent’s understanding of IRCA’s preemptive scope, it was irrelevant that Kansas prosecutors technically relied on the tax-withholding forms instead of the I-9. Either way, the noncitizens were submitting information as part of the process of verifying their employment eligibility, with the ultimate goal of procuring a job. As the dissent argued, both the federal government as a party or amicus in prior cases and the Supreme Court majority in Arizona adopted an expansive view of IRCA’s preemptive scope in employment-verification matters, which, if faithfully followed, would have led to implied preemption of Kansas’ prosecutions. Indeed, by citing the Department of Justice’s prior arguments supporting federal exclusivity in IRCA enforcement, Breyer’s dissent seemed to be taking a subtle stab at DOJ, which weighed in against preemption in Garcia.

Finally, turning to conflict and obstacle preemption, Alito’s opinion found no evidence that Congress intended to eliminate overlap between state identity-theft prosecutions and federal prosecution of crimes related to fraud in the employment-verification process or federal crimes related to fraud on tax-withholding forms. Moreover, the court added that in this case, the federal government aided Kansas’ prosecutions and supported the state’s legal position at the Supreme Court. Although the point seemed irrelevant to its conclusion, the court further opined that even if federal enforcement priorities were different, Kansas’ intervention was unlikely to be preempted. Specifically, the court stated, “the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to [federal laws], not the criminal law enforcement priorities or preferences of federal officers.” Although the majority declined to cite cases for that proposition, this dicta appears to directly address the Arizona majority’s rationale for finding obstacle preemption. There, in invalidating a provision of the state’s omnibus immigration-enforcement law, the majority focused on the potential for the state statute to alter federal immigration priorities, as expressed in federal enforcement memoranda from Department of Homeland Security officials. Garcia appears to either reject or limit that understanding of preemption doctrine.

Looking to the future, Garcia could signal a major shift in immigration federalism jurisprudence. The Garcia court seemed to scale back Arizona’s view of IRCA’s preemptive scope, and it appeared to reject the idea that state prosecutions that effect federal prosecution priorities might be impermissible. Both analytic moves suggest greater tolerance for state immigration-related enforcement, even when those interventions overlap with federal enforcement or alter federal preferences. As the dissent cautioned, as a practical matter, by allowing the state to prosecute fraud in the employment-procurement process, the majority may have opened a “colossal loophole” in IRCA.

Finally, as immigration-related jurisprudence begins to define the contours of constitutional law in a variety of areas, Garcia might signal fundamental changes in preemption doctrine outside of immigration law. On this score, the concurring opinion by Justice Clarence Thomas, joined by Justice Neil Gorsuch (who was not on the Supreme Court when Arizona was decided), endorsed an austere preemption methodology exclusively focused on express preemption by Congress. Thomas’ opinion called for abandoning inquiry into “purposes and objectives” as part of preemption analysis, and expressed skepticism of field preemption as well. Thus, Garcia might indicate that a solid majority of justices are willing to completely or incrementally abandon implied preemption. Such a jurisprudential trend would alter the regulatory landscape in areas well beyond unauthorized employment of noncitizens.