Supreme Court: A Free Pass for Alien Identity Thieves?

June 4, 2019

IRLI argues states may advance immigration enforcement

WASHINGTON – In a bizarre ruling two years ago, the Kansas Supreme Court threw out the convictions of several aliens for identity theft under Kansas state law, finding the prosecutions of these aliens “expressly preempted” by federal law. The Immigration Reform Law Institute (IRLI) last Friday filed a friend-of-the-court brief in the U.S. Supreme Court urging the Court to reverse that decision.

Federal law expressly prohibits the use of information on a person’s federal Form I-9 for purposes other than prosecuting offenses under some federal laws, including fraud on a Form I-9. Based on this, the Kansas Supreme Court reasoned that because the aliens Kansas prosecuted used the same stolen social security numbers on their I-9s and on other forms, Kansas could not prosecute them under state law for the identity theft they had committed by also using those numbers on those other forms.

Outrageously, this ruling would give persons who falsify an I-9 – usually, illegal aliens – a free pass to commit other identity theft using the same stolen information. That cannot be what Congress meant to imply in this provision. Crucially, Kansas did not use the aliens’ I-9s as evidence in its state prosecutions.

When accepting review, the U.S. Supreme Court ordered briefing not just on express preemption, but also on implied preemption. One kind of implied preemption occurs when federal law and state law are in conflict, as happens when state law presents an obstacle to federal objectives. In a concurring opinion, a Kansas Supreme Court justice had argued that Kansas’s prosecutions here were, indeed, conflict preempted.

In its brief, IRLI zeroes in on this question, pointing out that Kansas’s law reduces illegal alien employment, and therefore advances Congress’s goals, rather than subverts them. The Court has previously upheld state laws that advanced federal immigration-enforcement objectives, because those laws did not interfere with federal enforcement methods – and IRLI shows that no such interference happened in this case, either.

“Well-funded anti-borders activists want to muddy the waters on preemption and federal supremacy,” said Dale L. Wilcox, IRLI’s executive director and general counsel, “but the lesson to be drawn from this case is clear. Federal law is supreme, and states cannot try to block federal law enforcement efforts – for example, in the way California has in its sanctuary state law. But states remain free to pass laws that help Congress achieve its objectives. Indeed,” Wilcox pointed out, “if the executive branch of the federal government has been lax in its enforcement of certain laws – and sadly, it appears to have been lax in going after employers who hire illegal aliens – state help becomes all the more important.”

The case is State of Kansas v. Garcia, No. 17-834 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]