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Criminal law; immigration; preemption doctrine

by | Mar 16, 2020 | Employment & Labor Law

KANSAS v. GARCIA, ___ U.S. ___, No. 17-834 (3 March 2020)

Until 1986, federal law did not prohibit employing illegal aliens.  In 1986, Congress enacted the Immigration Reform and Control Act (IRCA) that makes it illegal to knowingly hire an illegal alien to work in the United States.  To enforce this prohibition, employers must use a work-authorization for (I-9) and attest that the employee is not an unauthorized alien by examining approved documents such as a U.S. passport or an alien registration card. 8 U.S.C. §1324a(b)(1)(A).  The IRCA limits the use of the I-9 form.  The statute provides that “any information contained in or appended to such form[s] may not be used for purposes other than for enforcement of” federal immigration laws or other specified federal laws. 8 U.S.C. §1324a(b)(5).

Kansas uses a tax withholding form (K-4) that is similar to the federal tax-withholding form (W-4).  Three illegal aliens used false Social Security numbers on their K-4 and W-4 forms, and the State of Kansas prosecuted them for violating Kansas laws criminalizing identity theft and use of false information with intent to defraud.  The aliens had also used false Social Security numbers on their I-9 forms, but at trial the State did not rely on the I-9 forms to prove use of false Social Security numbers.  Instead, the prosecution relied on the false Social Security numbers used on the K-4 and W-4 forms.  The three aliens argued that they could not be prosecuted because their I-9 forms contained the same false Social Security numbers as the K-4 and W-4 forms, and the IRCA prohibits use of any information contained on the I-9 form.  The aliens were convicted, but the Kansas Supreme Court reversed, holding that the IRCA expressly prohibited the State from using any information contained on the I-9 form as the basis for prosecution, even though the State did not rely on the I-9 form at trial.  The U.S. Supreme Court reversed, in a 5-to-4 decision.

The Supremacy Clause provides that the Constitution, federal statutes, and treaties are “the supreme Law of the Land.”  Art. VI, cl. 2.  The Clause provides “a rule of decision” for determining whether federal or state law applies in a particular situation. Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324 (2015). A federal statute may expressly preempt state law.  In addition to express preemption, if a federal law comprehensively covers a defined field of activity, then the federal law may impliedly preempt state law. See, e.g., Arizona v. United States, 567 U.S. 387, 400-408 (2012).  This type of preemption is customarily called “field preemption.”   Finally, a state law can be preempted if it conflicts with federal law.  

The aliens argued that the IRCA expressly preempts state law because the IRCA expressly restricts any use of information contained in an I-9 form, even if the prosecution does not rely on the I-9 form as evidence.  The Court rejected that argument, because it would lead to absurd results.  For example, the I-9 form requires a person’s email address, and under the aliens’ argument no one could use that address in an email because it was “contained in” the I-9 form.  Consider another example.  Under 26 U.S.C. §7205, it is a federal crime to willfully use false information on a W-4, but that statutory provision is not among those specifically listed in the IRCA as exempt from the prohibition against “any use” of information “contained in” the I-9.   Thus, if a person used the same false information on an I-9 and a W-4, then the Federal Government could not prosecute the person for violating 26 U.S.C. §7205, even if the government made no use whatsoever of the I-9 form.

The Court said that an item of information is different than a tangible object.  A tangible object can be contained in only one place at any point in time, but an item of information may be “contained in” different places, and it is not customary to say that a person uses information contained in a particular source unless the person makes use of that source.  The fact that an I-9 contains an item of information, such as a name or address, does not mean that information “contained in” the I-9 is used whenever that name or address is later used.  The information “contained in” the I-9 is used only when the I-9 form is used.  The Court held that there is no express preemption.

The Court also rejected the aliens’ alternative arguments of field preemption and conflict preemption.  All preemption arguments must be grounded in the text and structure of the statute at issue. CSX Transp., Inc. V. Easterwood, 507 U.S. 658, 664 (1993).   In order to determine whether Congress has implicitly ousted the States from regulating a particular field, a court must first identify the field.  The aliens’ primary contention is that the IRCA preempts the field of fraud on the Federal Government’s employment verification system, but that contention fails because submission of tax withholding forms is not part of the federal employment verification system.  There is also no conflict between federal and state law, because it is possible to comply with both the IRCA and the Kansas statutes.  In enacting the IRCA, Congress did not decide that an unauthorized alien who uses a false identity on tax withholding forms should not face criminal prosecution.  The mere fact that a state law overlaps to some degree with federal law does not make a case for conflict preemption.  There is no suggestion that the Kansas prosecutions frustrated any federal interests. 

Justice Alito authored the Court’s opinion.  Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, issued an opinion concurring in part and dissenting in part.  Justice Breyer concurred that there is no express preemption, but dissented because, in his view, the structure, context and purpose of the IRCA showed that Congress has occupied the narrow field of policing fraud in federal work authorization.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].