Top Court Green-Lights Kansas to Prosecute Aliens on ID Theft

WASHINGTON (CN) – In a 5-4 ruling along party lines, the U.S. Supreme Court on Tuesday reinstated Kansas laws that open undocumented workers to prosecution for using other people’s Social Security numbers on everything from tax documents to apartment leases.

Led by Ramiro Garcia, who had used another person’s Social Security number as part of paperwork for a restaurant job, three immigrants prosecuted in Kansas for identity theft brought the underlying challenge.

Donaldo Morales, left, and his wife Isleen Gimenez Morales, right, pose in 2019 at an attorney’s office in Kansas City, Mo. (AP Photo/Orlin Wagner)

They prevailed at the Supreme Court of Kansas, which ruled that the state’s laws treaded improperly into an area governed by the federal Immigration Reform and Control Act.

But the U.S. Supreme Court reversed that conclusion Tuesday, saying “there is no express preemption in these cases.”

On this point the court was unanimous, but the liberal minority of the court said they concurred only in part. They would have held that the state laws were impliedly pre-empted as applied to Garcia and the other immigrants, Donaldo Morales and Guadalupe Ochoa-Lara.

“Here, Kansas applied its criminal laws to do what IRCA reserves to the federal government alone — police fraud committed to demonstrate federal work authorization,” Justice Stephen Breyer wrote in the partial dissent. “That is true even though Kansas prosecuted respondents based on their tax-withholding forms, rather than their I–9s.”

Breyer recounted the details of Morales’ prosecution to make this clear, noting that the undocumented restaurant worker was convicted of using a false Social Security number “for the purpose of obtaining employment,” not to hide a criminal history or reduce his tax obligations.

“By permitting these prosecutions, the majority opens a colossal loophole,” Breyer wrote. “Starting a new job almost always involves filling out tax-withholding forms alongside an I–9. So unless they want to give themselves away, people hoping to hide their federal work-authorization status from their employer will put the same false information on their tax-withholding forms as they do on their I–9. To let the states prosecute such people for the former is, in practical effect, to let the states police the latter. And policing the latter is what the act expressly forbids.”

In his 20-page opinion for the majority, meanwhile, Justice Samuel Alito noted that criminal law enforcement has, since the nation was founded, been a function primarily of the states.

“In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors,” Alito wrote. “Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap. Indeed, in the vast majority of cases where federal and state laws overlap, allowing the states to prosecute is entirely consistent with federal interests.”

Alito dismantled the argument for express pre-emption earlier in the ruling, balking at the notion that “no information placed on an I–9 — including an employee’s name, residence address, date of birth, telephone number, and e-mail address — could ever be used by any entity or person for any reason.”

“This interpretation is flatly contrary to standard English usage,” Alito continued.

The opinion goes on to recite a number of scenarios that show the absurdity of the contrary holding.

“Suppose that an employee truthfully states on his I–9 that his name is Jim Smith,” he wrote. “Under the interpretation of 8 U. S. C. §1324a(b)(5) that the Kansas Supreme Court seemingly adopted, no one could use Jim’s name for any purpose. If he robbed a bank, prosecutors could not use his name in an indictment. His employer could not cut a paycheck using that name. His sister could not use his name to mail him a birthday card.”

Later Alito cautioned against conflating the benefit of complying with the federal employment verification system “with the benefit of actually getting a job.”

“Submitting W-4’s and K-4’s helped respondents get jobs, but this did not in any way assist them in showing that they were authorized to work in this country,” Alito wrote.

Justices Clarence Thomas and Neil Gorsuch joined the lead opinion in full, as did Chief Justice John Roberts and Justice Brett Kavanaugh. In a separate concurring opinion joined by Gorsuch, Thomas called on the court to “explicitly abandon our ‘purposes and objectives’ pre-emption jurisprudence.”

Justices Sonya Sotomayor, Ruth Bader Ginsburg and Elena Kagan joined Breyer’s dissent.

Tuesday’s opinion followed oral arguments in October where Kansas Attorney General Derek Schmidt argued for the state.

“Congress never intended to block Kansas from prosecuting people who falsify tax forms or private legal documents merely because the defendant also falsified federal employment verification forms,” Schmidt said in a statement. “Today’s ruling makes clear that state identity theft laws apply to everybody, including offenders who are in the country unlawfully and apply for a job.”

Paul Hughes, an attorney for the immigrants with the firm McDermott, Will & Emery, did not return a request for comment.

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