In a five-to-four vote, the Supreme Court has upheld Kansas’s prosecution of noncitizens who used stolen social security numbers to gain employment.
The Kansas Supreme Court held that federal law in the form of the Immigration Reform and Control Act precluded prosecution of Garcia and some other defendants for identity theft because of 8 U.S.C. § 1324a, particularly sub. (b)(5), which precludes the use of certain federal employment documents (in particular Form I-9, which all employees must complete) or the information on those documents—even if the information is on non-IRCA forms—except to prosecute violations of IRCA itself. The majority opinion rejects that conclusion, and holds that Kansas’s application of its state identity-theft and fraud statutes to the noncitizen criminal defendants in these cases was neither expressly nor impliedly preempted by federal immigration laws related to verifying eligibility to work.
We won’t delve into the intricacies of express versus implied preemption, let alone the latter’s subsets of conflict, obstacle and field preemption. Scotusblog’s argument preview can give you more information on those topics, if you insist on having it. For our purposes it is sufficient to say that the Court’s rejection of Kansas’s position (which was an evident outlier, as no other state court had reached a similar conclusion) means state identity theft prosecutions won’t be blocked just because they happen to be based on immigration law-related identifying documents. For further consequences, interested readers may want to look at Scotusblog’s opinion summary, which says the decision “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.”