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SCOTUS will review preemption challenge to state identity theft prosecutions

Kansas v. Garcia, USSC No. 17-834, certiorari granted 3/18/19

Questions presented:

1. Whether the Immigration Reform and Control Act (IRCA) expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications

2. Whether IRCA impliedly preempts Kansas’s prosecution of respondents.

Decision below: State v. Garcia, 401 P.3d 588 (Kan. 2017)

USSC Docket

Scotusblog page (including links to briefs and commentary)

The questions presented involve complex questions about federal preemption of state law, so they are a bit out of the ordinary for everyday criminal law practice. But the answers could be significant for state criminal prosecutions, particularly of identity theft.

Essentially, 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 trouble is that the information on Form I-9, like date of birth, social security number, etc., is the same information people put on all kinds of other forms–in particular, tax withholding forms. And that information is crucial to identity theft prosecutions where the defendant is alleged to have used another person’s identifying information to get a job and to fill in the required Form I-9. Cf. State v. Ramirez, 2001 WI App 158, 246 Wis. 2d 802, 633 N.W.2d 656 (defendant used another person’s social security number to obtain employment).

So, Kansas says (as do the attorneys general from other states, who supported the cert petition), the decision of its supreme court could stymie state prosecutions of identity theft in Kansas, and everywhere else, too, if it’s adopted across the country. So far Kansas appears to be an outlier, and in particular On Point is not aware of any case in Wisconsin raising this issue. But it’s a frightening enough outlier that the U.S. Solicitor General, who the Court asked to weigh in on Kansas’s petition, urged the Court to take the case and decide whether Congress meant to preempt state criminal prosecutions in IRCA, either expressly or impliedly. It may not surprise you to learn the SG also argued Congress didn’t mean to do that, and with that thumb on the scale it seems likely Kansas will prevail. We’ll see next Term. And in the off-chance the Court concludes Congress did preempt state prosecutions and that any fix will have to come in the form of legislation, we’ll tell you all about it.

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